Welch v. Commonwealth

• Court: Virginia Court of Appeals
• Writing for the Court: OPINION BY JUDGE FRANK K. FRIEDMAN
• Citation: Welch v. Commonwealth, 79 Va. App. 760, 896 S.E.2d 867 (Va. App. 2024)
• Docket Number: Record No. 1985-22-3
• Decision Date: 06 February 2024
• Parties: Rhoda Faye WELCH v. COMMONWEALTH of Virginia

896 S.E.2d 867

79 Va.App. 760

Rhoda Faye WELCH

v.COMMONWEALTH of Virginia

Record No. 1985-22-3

Court of Appeals of Virginia, Christiansburg.

February 6, 2024

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY, Paul A. Dryer, Judge

Kelsey Bulger, Senior Appellate Attorney (Jennifer T. Stanton, Senior Appellate Attorney; Indigent Defense Commission, on briefs), for appellant.

John W. Beamer, Assistant Attorney General (Jason S. Miyares, Attorney General; Andrew T. Hull, Assistant Attorney General, on brief), for appellee.

Present: Judges Humphreys,^* Friedman and White

OPINION BY JUDGE FRANK K. FRIEDMAN

₇₆₅This is a case that examines the boundaries of criminal intent where Rhoda Faye Welch challenged her petit larceny charge with the defense that she genuinely believed the computer tablet she spotted in a convenience store was "lost" or "abandoned" property. Consistent with this "claim-of-right" theory, Welch asserts that, when she left the store with the tablet, she lacked the requisite intent for a conviction. After a bench trial, Welch was convicted of petit larceny in violation of Code § 18.2-96. The trial court sentenced her to 90 days in jail (all suspended), with 12 months’ supervised probation and 30 hours of community service. The trial court further ordered Welch to complete a shoplifting prevention awareness program and to refrain from trespassing at the Sheetz store in Fishersville, Virginia. She appeals, challenging the sufficiency of the evidence. We affirm.

BACKGROUND ¹

[1] In March of 2022, Welch visited the Sheetz convenience store in Fishersville where she saw a Samsung tablet unattended near the soda fountain. Welch picked the tablet up, set it down again, then "walked around it a little bit" before ₇₆₆picking it up again. She then drew some napkins from a dispenser, "placed [them] on top of the tablet," proceeded to the register where she paid for her purchases, and departed with the tablet. Welch neither informed any Sheetz employee about the unattended tablet, nor received permission to take it. The tablet Welch took, which was worth about $500, was the property of the Sheetz company and was used by its employees in the course of their duties.

None of the store employees realized the tablet was missing until later in the day. Joshua Louk, a Sheetz employee, used the store’s surveillance video to investigate the tablet’s disappearance. This enabled him to identify Welch and track her to her vehicle in the parking lot. Louk then reported the theft to the Augusta County Sheriff's Office. Sergeant Patrick Fuchs responded to the complaint and reviewed the surveillance video from the store, from which he was able to obtain Welch’s license plate number. He contacted Welch and she later surrendered the tablet to him, which eventually was returned to Sheetz.

Although represented by counsel on this appeal, Welch represented herself in the trial court. She testified at trial that she was unaware that Sheetz owned the tablet. She explained that she was "just thinking finders keepers" when she spotted it. Welch testified that she felt justified in taking the unattended tablet because she believed that if she turned it in to the store’s lost and found, one of the store’s employees would have simply appropriated it for themselves. Sergeant Fuchs testified that Welch told him that her son needed a tablet.

After hearing the evidence, the trial court convicted Welch of petit larceny, ruling that she lacked an honest, good faith belief that the tablet was lost or abandoned. This appeal followed.

ANALYSIS

I. Standard of Review

[2–4] "When reviewing the sufficiency of the evidence, '[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence ₇₆₇to support it.’ " McGowan v. Commonwealth, 72 Va. App. 513, 521, 850 S.E.2d 376 (2020) (alteration in original) (quoting Smith v. Commonwealth, 296 Va. 450, 460, 821 S.E.2d 543 (2018)). "In such cases, '[t]he Court does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ " Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204, 228, 819 S.E.2d 234 (2018)). "Rather, the relevant question is whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " Vazquez v. Commonwealth, 291 Va. 232, 248, 781 S.E.2d 920 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280 (2009)). "If there is evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.’" McGowan, 72 Va. App. at 521, 850 S.E.2d 376 (quoting Chavez v. Commonwealth, 69 Va. App. 149, 161, 817 S.E.2d 330 (2018)).

[5, 6] "Determining the credibility of witnesses … is within the exclusive province of the [fact finder], which has the unique opportunity to observe the demeanor of the witnesses as they testify." Dalton v. Commonwealth, 64 Va. App. 512, 526, 769 S.E.2d 698 (2015) (first alteration in original) (quoting Lea v. Commonwealth, 16 Va. App. 300, 304, 429 S.E.2d 477 (1993)). "When ‘credibility issues have been resolved by the [fact finder] in favor of the Commonwealth, those findings will not be disturbed on appeal unless plainly wrong.’ " Towler v. Commonwealth, 59 Va. App. 284, 291, 718 S.E.2d 463 (2011) (quoting Corvin v. Commonwealth, 13 Va. App. 296, 299, 411 S.E.2d 235 (1991)).

II. The Record Supports the Trial Court’s Finding that Welch Committed Petit Larceny

[7–10] "Larceny, a common law crime, is defined as ‘the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently.’ " Brown, v. Commonwealth, 297 Va. 295, 301, 826 S.E.2d 883 ₇₆₈(2019) (quoting Bryant v. Commonwealth, 248 Va. 179, 183, 445 S.E.2d 667 (1994)); see also Dunlavey v. Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763 (1945). "Intent is the purpose formed in a person’s mind at the time an act is committed." Johnson v. Commonwealth, 53 Va. App. 79, 100, 669 S.E.2d 368 (2008) (quoting Commonwealth v. Taylor, 256 Va. 514, 519, 506 S.E.2d 312 (1998)). Whether the defendant has the required intent is a question for the trier of fact. Id. at 100-01, 669 S.E.2d 368. A defendant’s intent may be proved by circumstantial evidence, including the defendant’s statements and conduct. See, e.g., Simon v. Commonwealth, 58 Va. App. 194, 206, 708 S.E.2d 245 (2011) ("The statements and conduct of an accused after the events that constitute the charged crime may also be relevant circumstantial evidence of intent." (citing Canipe v. Commonwealth, 25 Va. App. 629, 645, 491 S.E.2d 747 (1997))).

[11–14] A defendant charged with larceny may assert an "honest belief" that the property she is charged with stealing was abandoned, so long as the evidence establishes a reasonable basis for her to have such a belief; this is, in other words, a claim-of-right defense. See Barnes v. Commonwealth, 190 Va. 732, 740, 58 S.E.2d 12 (1950). The mistaken belief must be " ‘sincere,’ and not a ‘dishonest pretense[.]’ " Groves v. Commonwealth, 50 Va. App. 57, 63, 646 S.E.2d 28 (2007) (first quoting O’Banion v. Commonwealth, 33 Va. App. 47, 56, 531 S.E.2d 599 (2000), overruled on other grounds by Harris v. Commonwealth, 274 Va. 409, 650 S.E.2d 89 (2007); and then quoting 2 Joel Prentiss Bishop, Bishop on Criminal Law § 851, at 648-49 (9th ed. 1923)). "Whether asserted in good faith or as a ‘mere pretext,’ a claim-of-right defense relies heavily on factfinding." Id. (quoting Pierce v. Commonwealth, 205 Va. 528, 533, 138 S.E.2d 28 (1964)). When proven, the claim-of-right defense negates the defendant’s intent to steal. Id.

[15] Welch concedes that she took the tablet and intended to retain it permanently. She testified and argued at trial that doing so was not wrongful because it "was not an intentional theft" and she "didn’t know [she] was stealing anything." "The ₇₆₉claim-of-right defense requires a predicate showing of ‘good faith,’ a bona fide belief by the taking party that she has some legal right to the property taken." Groves, 50 Va. App. at 63, 646 S.E.2d 28 (quoting Butts v. Commonwealth, 145 Va. 800, 812, 133 S.E. 764 (1926)) (citation omitted). On appeal, Welch again argues the Commonwealth failed to establish intent—claiming she merely retrieved abandoned property.

A. Welch’s Actions Tend to Show that She Did Not Have a Good Faith Belief the Tablet was Abandoned

[16, 17] Welch concedes on appeal that a defense of abandonment requires an "honest," "bona fide and not imaginary belief" that she was "taking abandoned property" when she departed Sheetz with the tablet. Barnes, 190 Va. at 740, 58 S.E.2d 12; Groves, 50 Va. App. at 63, 646 S.E.2d 28. The facts in this case, however, do not support Welch’s argument that she had a good faith belief that the tablet was abandoned. When Welch left the Sheetz with the tablet in hand, she concealed the device underneath a layer of napkins. Welch’s concealment of the tablet was a fact from which the trial court could infer Welch’s intent to steal the tablet—as well as her lack of a reasonable basis to believe the device was abandoned. In fact, "[t]he willful concealment of goods while still on the premises is prima facie evidence of intent to defraud the owner of the value of the goods or merchandise at issue." Johnson v. Commonwealth, 35 Va. App. 134, 139, 543 S.E.2d 605 (2001). Welch put so many napkins over the tablet that no one "on-duty was aware that [she] had the tablet" and the cashier "did not see [her] with the tablet or even know that [she] had it." The trial court found that the act of concealing the tablet tended to show that Welch lacked an "honest belief that the tablet was, in fact, abandoned."

[18, 19] The trial court further noted that Welch herself...