Opinion
Record No. 1667-91-4
June 8, 1993
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY BENJAMIN N. A. KENDRICK, JUDGE.
David Bernhard (Bernhard Gardner, on briefs), for appellant.
Richard B. Smith, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Judges Benton, Bray, and Fitzpatrick.
Argued at Alexandria, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Jose Atilio Alvarenga was convicted by a jury of larceny of property having a value in excess of $200. Code § 18.2-95. Alvarenga contends that the Commonwealth failed to prove by competent evidence and beyond a reasonable doubt that the fair market value of the property was at least $200. He also contends that the jury could not have inferred beyond a reasonable doubt from his unexplained possession of the property that he was the thief. We affirm the conviction.
I.
In our consideration whether the evidence was sufficient to support the conviction, we must view the evidence in the light most favorable to the Commonwealth and grant to that evidence all reasonable inferences. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). When so viewed, the evidence proved that on January 11, 1991, someone ripped from Peter Castillo's automobile a spoiler that was bolted to the trunk. The spoiler, which is a decorative accessory that can be attached to the frame of an automobile, was ripped off in such a manner that one small piece of the spoiler was still attached to the automobile.
Over objection, Castillo testified that he purchased the spoiler in 1987 from an individual for $325. Castillo was permitted to testify that the value of the spoiler at the time it was taken was "seven hundred ninety-nine dollars from the Pontiac dealership." Castillo testified that the spoiler in its used condition would cost the same because it was an accessory item that was no longer in production. Castillo admitted, however, that he did not ask the Pontiac dealership what a four year old used spoiler would cost.
Castillo reported the theft and decided to look for the spoiler. He began to look systematically for automobiles in the area that had spoilers mounted on their trunks. A month after the theft, he saw an automobile with a silver colored spoiler that was similar in shape to the one ripped from his automobile. He noted the license plate designation and followed the automobile.
At 3 a.m. the next morning, he returned to the place where the automobile was parked and inspected the spoiler. When he scraped the paint on the spoiler with a knife, he discovered that it had black paint under the silver paint. He had painted his spoiler black to match his car. He also noted that a cracked piece that remained on his trunk when the spoiler was ripped off fit the spoiler that he was inspecting.
In response to information provided by Castillo, Detective Henry Trumble went to the driveway at Alvarenga's residence and observed the automobile with a spoiler on its trunk. Upon close inspection, the detective noticed that the spoiler's original gold color had been painted black as reported by Castillo. The spoiler also had an outer coat of silver paint. Alvarenga told the detective that he had purchased the spoiler for $150 from an automobile parts business. Alvarenga also told the detective that he had the receipt for the spoiler at his place of employment, and he said he would deliver the receipt to the police station.
Alvarenga did not appear at the police station the next day with the requested receipt. He did, however, contact the detective by telephone to inform him that he did not believe that the spoiler was stolen. He also told the detective that he was not coming to the police station. The detective obtained an arrest warrant, arrested Alvarenga, and impounded his automobile.
The detective observed that a new spoiler was attached to the trunk and that the place where the other spoiler had been mounted was readily noticeable. After Alvarenga was givenMiranda warnings, he denied that the spoiler had been changed. After further questioning, however, Alvarenga admitted that the spoiler had been replaced. He stated that a man, who he only knew as "Tony," switched spoilers after the detective first inspected the automobile. He said that "Tony" was the man from whom he had originally purchased the spoiler, but he could not remember Tony's address or other information about him. After Alvarenga offered to get the spoiler and deliver it to the detective, he was charged with larceny and released on bail. The following day he returned to the police station with the stolen spoiler.
At trial, Alvarenga testified that he purchased the spoiler for $150 from a man who approached him while he was washing his car in his driveway. He said that the man was dirty and that he did not know the man. Alvarenga stated that he inquired whether the spoiler was stolen and the man replied that it was not. Alvarenga testified that, following the first conversation with the detective, he gave the spoiler to his friend, Tony, who was unavailable to testify because he was in North Carolina. On this evidence, the jury convicted Alvarenga of larceny.
II.
Code § 18.2-95 classifies theft as grand larceny when the value of the stolen property taken not from the person of another is $200 or more. The value of an object of larceny is the fair market value at the time and place of the theft. See Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d 792, 795 (1981);Lund v. Commonwealth, 217 Va. 688, 692, 232 S.E.2d 745, 748 (1977). See also Berryman v. Moore, 619 F. Supp. 853, 856 (D.C. Va. 1985). The fair market value can be proven by either direct or circumstantial evidence. Veney v. Commonwealth, 212 Va. 805, 806-07, 188 S.E.2d 80, 81-82 (1972). "Evidence of the original cost of a used [item] is admissible on the issue as to its value at the time of loss, on the theory that the present value of a used article can be determined with a reasonable degree of certainty by taking such original cost and making due allowance for elements of depreciation." Gertler v. Bowling, 202 Va. 213, 215, 116 S.E.2d 268, 270 (1960). The evidence must be sufficient to allow the trier of fact to "intelligently and fairly estimate with reasonable certainty the" value of the item at the time of the loss. Id. at 216, 116 S.E.2d at 270. Moreover, because the value of the goods specified in the grand larceny statute is an essential element of the crime, the Commonwealth bears the burden of proving that element beyond a reasonable doubt. Knight v. Commonwealth, 225 Va. 85, 88, 300 S.E.2d 600, 601 (1983).
Castillo testified that he purchased the spoiler for $325 in 1987 and that it had not been used before he bought it. He further testified that when the spoiler was ripped from his car in 1991, it was in excellent condition. In addition, he stated that spoilers similar to his were difficult to find in 1987. They had become very rare by 1991 because they were no longer manufactured. Alvarenga did not offer any contradictory evidence regarding the depreciated or appreciated value of the spoiler.
Castillo further opined that the value of his spoiler at the time it was taken equalled the cost of a new spoiler because "[i]t's an optional item. So the price is not going to change from what I understand from what I found out from Pontiac." Castillo testified that the Pontiac dealer told him a new spoiler would cost $799. Although lay witnesses cannot ordinarily express an opinion, see e.g., Jones v. Commonwealth, 202 Va. 236, 241-42, 117 S.E.2d 67, 71 (1960), "[i]t is widely recognized that a lay witness may express an opinion as to value." Stainback v. Stainback, 11 Va. App. 13, 23, 396 S.E.2d 686, 692 (1990). As owner of the spoiler, Castillo was competent to testify concerning the value of the spoiler, regardless of his knowledge of the market value of such property. Haynes v. Glenn, 197 Va. 746, 750, 91 S.E.2d 433, 436 (1956). The weight to be given his testimony was for the trier of fact to determine. Id. at 750-51, 91 S.E.2d at 436.
Moreover, although Castillo's testimony regarding the value of his spoiler was based on hearsay statements from the Pontiac dealer, the Supreme Court of Virginia has recognized that this type of evidence is admissible. See Haynes, 197 Va. at 750, 91 S.E.2d at 436. See also McCrory v. State, 627 S.W.2d 762, 762 (Tex.Ct.App. 1981). "[F]air market value is the price property will bring when offered for sale by a seller who desires but is not obliged to sell and bought by a buyer under no necessity of purchasing." Board of Supervisors v. Donatelli Klein, Inc., 228 Va. 620, 628, 325 S.E.2d 342, 345 (1985). Thus, the evidence at trial established that Castillo bought the spoiler in 1987 for $325 and that the value of the spoiler when stolen exceeded $200.
III.
"Larceny is defined as the 'wrongful taking of the goods of another without the owner's consent and with the intention to permanently deprive the owner of possession of the goods.'"Nelson v. Commonwealth, 12 Va. App. 268, 270, 403 S.E.2d 384, 386 (1991) (quoting Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987)). In addition, "[i]f any person buy or receive from another person, or aid in concealing, any stolen goods or other thing, knowing the same to have been stolen, he shall be deemed guilty of larceny thereof, and may be proceeded against, although the principal offender be not convicted." Code § 18.2-108. Therefore, the trial judge properly instructed the jury that if it found that he stole the spoiler or if it found that he received it from the actual thief knowing that it was stolen, it could convict Alvarenga of grand larceny.
Once the crime [of larceny] is established, the unexplained possession of recently stolen goods permits an inference of larceny by the possessor. For the larceny inference to arise, however, 'the Commonwealth must establish that the accused was in exclusive possession of property recently stolen.' Consequently, there must be evidence that the defendant exercised dominion and control over the property.
Nelson, 12 Va. App. at 270, 403 S.E.2d at 386 (citations omitted).
Even if the jury had believed Alvarenga's testimony that he bought the spoiler from an unknown man, the evidence was sufficient to prove beyond a reasonable doubt that he received the spoiler knowing that it was stolen.
The great weight of authority is to the effect that guilty knowledge need not be directly proved. It may be shown by [circumstantial evidence]. It is sufficiently shown if the circumstances proven are such as must have made or caused the recipient of stolen goods to believe they were stolen.
Reaves v. Commonwealth, 192 Va. 443, 451, 65 S.E.2d 559, 564 (1951).
Alvarenga testified that when a man approached him saying he would sell Alvarenga a spoiler, he asked the man if the item was stolen. Alvarenga did not know the man who he described as "dirty." Indeed, the jury could have determined that the price and the circumstances would have alerted Alvarenga that the spoiler was stolen. Furthermore, the evidence showed that the day after the detective confronted Alvarenga regarding the spoiler, the detective noted that Alvarenga's car "had a similar, but different spoiler attached to the rear of it." Alvarenga admitted that he removed the stolen spoiler, replaced it with another spoiler, and gave the stolen spoiler to another man. Alvarenga's conduct provided additional evidence from which the jury could have found beyond a reasonable doubt his guilt.
For the foregoing reasons, we affirm the conviction.
Affirmed.