Opinion
Record No. 1017-93-2
Decided: December 6, 1994
FROM THE CIRCUIT COURT OF HANOVER COUNTY, Richard H. C. Taylor, Judge
Affirmed.
Edward S. Whitlock, III (Dankos, Gordon Whitlock, P.C., on brief), for appellant.
Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Benton and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
A Virginia Department of Transportation (VDOT) employee Darrell E. Baylor (appellant) appeals from a judgment of the Circuit Court of Hanover County (trial court) that approved a jury verdict convicting him for petit larceny of VDOT property. Appellant contends that (1) the evidence was insufficient to support the verdict; (2) the trial court erroneously refused to permit him to prove the value of the subject VDOT property; and (3) the trial court erroneously refused to admit testimony from other VDOT employees regarding work performed by VDOT employees, with VDOT materials, on VDOT time, on private property. For the reasons that follow, we affirm.
In lieu of a transcript, the evidence, motions, and proceedings below were presented by a written statement approved by the trial court. Upon familiar principles, when the sufficiency of the evidence is challenged, we state the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
On December 22, 1992, appellant, in the course of his employment with VDOT, was driving a truck containing approximately five tons of a "contaminated" mixture of #8 and #26 stone that was the property of VDOT. At approximately 11:00 a.m., appellant was instructed by Michael Bryant (Bryant) to take the stone back to the VDOT shop, three to four miles away. The stone was not waste material, had some value, and could have been used in the future by VDOT. Instead of returning the stone to the shop as he had been instructed to do, appellant, without permission, drove the truck to his place of residence and off-loaded the stone onto the residence's driveway.
One employee who was at the VDOT job site, from which appellant had left with the load of stone, testified that he left the site after appellant but arrived at the shop first. Another employee testified that appellant, on that same day, had asked him if #26 stone would be the right stone for a driveway. These employees became suspicious that appellant may have wrongfully disposed of the stone and requested the State Police to make an investigation.
Virginia State Trooper Kelly Graham (Graham) investigated and observed fresh #26 gravel on the driveway at appellant's residence. On December 28, 1992, Graham met appellant at his residence and read him his Miranda rights. Graham testified that appellant told Graham that a friend had given him the stone. When Graham asked for the name of the friend, appellant said that he wanted to talk to his attorney.
Several fellow VDOT employees testified on behalf of appellant. They testified that VDOT policy allows for the disposal of waste materials and that excess gravel used to fill a hole on State Route 615 was taken to appellant's residence; that one of them had transported the stone to the residence; and that appellant had been told he could have the excess material. Other VDOT employees testified that while on VDOT time and with VDOT materials, they repaired a private driveway because VDOT had used the driveway when constructing a public roadway and had caused some damage. Appellant attempted to elicit testimony from these witnesses concerning VDOT work on prior occasions on private property. The trial court sustained the Commonwealth's objection to this line of questions.
Appellant testified he believed that he could use the stone to fix the driveway on his rented property because of the washing from the public roadway and because VDOT had parked vehicles on his driveway while repairing the public roadway. Appellant said he put the stone only where the washing occurred. Appellant further testified that he had always been told by VDOT supervisors that if he saw work that needed to be done and he had the materials, then he should do the work.
Appellant first argues that the evidence fails to prove he intended to steal the stone.
Intent is the purpose formed in a person's mind and may be, and frequently is, shown by circumstances. It is a state of mind which may be proved by a person's conduct or by his statements.
Tharrington v. Commonwealth, 2 Va. App. 491, 493-94, 346 S.E.2d 337, 339 (1986). The evidence established a number of facts consistent with appellant's guilt. The stone belonged to VDOT. It was not waste. It had some value and could have been used by VDOT on future jobs. Appellant was specifically instructed to return the stone to the VDOT shop. Instead, appellant converted the stone to his own use by placing it on the private property of his residence. He falsely told the police he had obtained the stone from a friend and then refused to reveal the name of that friend.
The jury, as the trier of fact, was entitled to draw the reasonable inference that appellant intended to steal the stone. Larceny is the wrongful taking of personal property of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently. Jones v. Commonwealth, 3 Va. App. 295, 300, 349 S.E.2d 414, 417-18 (1986); see also Hewitt v. Commonwealth, 213 Va. 605, 606, 194 S.E.2d 893, 894 (1973). When a conflict exists between the Commonwealth's and the defendant's evidence, the fact finder need not believe the accused's explanation and may infer from his false statements that he is trying to conceal his guilt. Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981). By its finding, the jury rejected appellant's contention that he did not intend to steal the stone. See Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), cert. denied, 496 U.S. 911 (1990). We hold that the evidence is sufficient to support the jury's finding that when appellant put the stone on the driveway he intended to deprive its owner thereof permanently and, thus, to steal VDOT's property.
Appellant further argues that his conviction must be reversed because the trial court refused to permit him to introduce evidence of the value of the stone. Concerning value, he concedes that the Commonwealth was required to prove only that the stone had some value and that proof was made. See Evans v. Commonwealth, 226 Va. 292, 297, 308 S.E.2d 126, 129 (1983). Appellant asserts, however, that his proof of value may have caused the jury to recommend a lesser punishment than the $500 fine. The evidence was not relevant to guilt, only punishment. The legislature has empowered the trial court to reduce the jury's verdict if mitigating circumstances are proved. The opportunity for presenting mitigating evidence is guaranteed at the sentencing stage, and the trial court did not err in refusing its admission at trial. See Duncan v. Commonwealth, 2 Va. App. 342, 345, 343 S.E.2d 392, 394 (1986). Here, appellant did not request an opportunity to present evidence of value at the sentencing hearing.
The remaining issue concerning the trial court's refusal of evidence as to appellant's guilt of the theft of the stone was clearly not relevant, and that refusal was not error.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.