Washington v. State

• Decision Date: 10 March 1988
• Docket Number: No. 87-202,87-202
• Citation: 751 P.2d 384
• Parties: Marshall L. WASHINGTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 384

751 P.2d 384

Marshall L. WASHINGTON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 87-202.

Supreme Court of Wyoming.

March 10, 1988.

Wyoming Public Defender Program: Leonard D. Munker, Public Defender, Cheyenne, Wyoming Defender Aid Program: Gerald M. Gallivan, Director, and M. Davis Lindsey, Student Intern, Laramie, for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Cheyenne, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

BROWN, Chief Justice.

Appellant Marshall L. Washington challenges his conviction for violation of § 6-3-402(a) and (c)(i), W.S.1977 (Cum.Supp.1986). ¹ Appellant admits that he wrongfully took two answering machines, a color television set, a black and white television set and four pairs of leather gloves from the Buttrey's Supermarket in Laramie, Wyoming. His contention on appeal, however, concerns valuation of those goods. His issue is:

"I. Does the state establish the market value of goods taken beyond a reasonable doubt merely by presenting evidence of retail price?"

At the arraignment, appellant pled not guilty and, at a subsequent hearing, waived his right to a jury trial. A bench trial ensued on April 20, 1987. During the trial the state called Mr. Jerry Nelson, who was working as a management trainee at Buttrey's in Laramie on February 9, 1987, the date the goods were taken. On direct examination, Mr. Nelson testified that the retail value of the stolen goods was as follows:

                color television set                                                    $199.99
                black and white television set                                            99.99
                two answering machines                                                   179.98
                three pairs of gloves                                                     31.47
                one pair of gloves                                                         9.49
                                                                                       ________
                  Total                                                           $520.92 2
                

Note The trial court found the value of the stolen goods at retail to be

Note $517.92; our addition of the retail values yields a total of $520.92.

On cross-examination, Mr. Nelson testified *

386 that the retail price of the black and white television set might vary, on sale, from $79.99 to $109.99. Mr. Nelson also testified that Buttrey's took a minimum mark-up on the items of thirty percent, and that the wholesale costs of the four appliances on February 9, 1987, were:

                color television set             $134.82
                black and white television set     77.97
                two answering machines            160.00
                                                ________
                  Total                          $372.79
                

It is clear that either a sale retail price on the black and white television set, or wholesale pricing on all of the appliances, could have reduced the value of the stolen goods below $500, lessening the crime to a misdemeanor under § 6-3-402(a) and (c)(iii).

At the close of the state's case, appellant moved for a judgment of acquittal, relying on the reduced values for the goods given by Mr. Nelson on cross-examination. The motion was over-ruled, and the trial court found the value of the stolen goods to exceed $500, based on the direct examination testimony of Mr. Nelson.

Appellant then testified in his own defense focusing on price tags he remembered seeing on the goods he admitted stealing. On cross-examination appellant admitted to two prior felony convictions.

The defense then called Mr. Barry Icenhower, an associate drug manager for Buttrey's drugs in Cheyenne, Wyoming. Mr. Icenhower testified that the wholesale price for the black and white television set in the Cheyenne Buttrey's was $77.97 and that the Cheyenne retail price on April 20, 1987, was $79.99. Mr. Icenhower was unable to give conclusive testimony about the prices of any of the goods in question in the Laramie Buttrey's on February 9, 1987.

After the defense rested, appellant renewed his motion for acquittal based on evidence of reduced value of some or all of the appliances. The trial court denied the motion again, listened to closing arguments, and adjourned to consider the evidence and the issue of valuation. On April 28, 1987, the court reconvened, found the aggregate value of the stolen goods to be $520.92, ³ and convicted appellant of grand larceny. This appeal followed.

This is an appeal from the denial of appellant's motion for judgment of acquittal. In Leppek v. State, Wyo., 636 P.2d 1117, 1119 (1981), we reviewed such a denial by examining and accepting as true

" * * * the evidence of the prosecution together with all logical and reasonable inferences to be drawn therefrom, [Citations.] leaving out entirely the evidence of the defendant in conflict therewith, [Citations].

"A motion for judgment of acquittal is to be granted only when the evidence is such that a reasonable juror must have a reasonable doubt as to the existence of any of the essential elements of the crime. Or, stated another way, if there is substantial evidence to sustain a conviction of the crime, the motion should not be granted. [Citations.] This standard applies whether the supporting evidence is direct or circumstantial. [Citations.]."

See also Wise v. State, Wyo., 654 P.2d 116, 117 (1982).

Although he presents a single issue, appellant makes essentially three arguments regarding the standard for valuing goods in trials under § 6-3-402(a) and (c). His first argument is that retail price need not necessarily be the standard of value when the goods involved were stolen from a retail seller.

This court has never addressed this specific question. We have held, however, that:

"The test of value as an element of the crime of larceny is the value of the goods at the time and place where they are taken. [Citations.] * * * " Oldham v. State, Wyo., 534 P.2d 107, 109 (1975).

We have also noted that valuation of goods involved in a larceny prosecution must relate in some way to "market value." Weathers v. State, Wyo., 652 P.2d 970, 973 (1982). Considering these two cases together, common sense demands that a proper valuation of goods in a larceny prosecution will be the market value at the time and place where the goods are taken. When the place is a retail establishment the relevant retail market value should apply. Thieves should not be able to avoid a felony larceny conviction simply because they understand the principles of accounting. See People v. Lindsay, Colo.App., 636 P.2d 1318, 1319 (1981).

Appellant's second and third arguments are directed towards the sufficiency of the evidence used to convict him. He contends that his conviction can only be sustained if retail value of the stolen goods is proven by evidence of actual retail sales of those items, not just evidence of retail price. His third contention is that the evidence introduced against him at this trial was insufficient to support a felony larceny conviction.

We have stated numerous times the standard for reviewing the sufficiency of the evidence in criminal cases.

" * * * [I]t is not whether the evidence...