Opinion
Record No. 1730-92-4
March 1, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY MICHAEL P. MCWEENY, JUDGE.
Michael F. Devine, Assistant Public Defender (Steven T. Webster, Deputy Public Defender, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Judges Baker, Barrow and Bray.
Argued at Richmond, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Richard L. Price (appellant) appeals his jury trial conviction for grand larceny and contends that the Commonwealth failed to prove beyond a reasonable doubt that the property alleged to have been stolen by appellant had a value of $200 or more. We agree.
Viewing the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom, the record establishes that a Tandy laptop computer and printer, a Philco VCR, a sheet of twenty one-dollar bills, a king-size pillow and a prescription sleeping pill bottle were stolen from a townhouse occupied by the owners of those items. Testimony in the record reveals that appellant told the police that he had purchased the VCR, computer and printer for $50 but felt they were worth more. Other testimony revealed that the computer and printer had been purchased in the summer of 1989 for approximately $1249, and for the six months immediately preceding the theft the items were used daily and were in good working order. There is no evidence of the value of any of the other items, except that the VCR was five years old and in good working order. Pictures of the computer, printer, VCR and prescription bottle were shown to the jury.
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
In determining whether the offense is grand or petit larceny, the criteria generally used by the courts to ascertain the value of the stolen property is the "market value" or its "reasonable selling price" at the time and place of the theft, as well as the condition of the item when it was stolen. See 50 Am.Jur.2d,Larceny, § 45, 209 (1970). Courts normally reject use of the purchase price alone or any special value it may have to the owner. Id. The guidelines in Virginia have clearly been established.
In a grand larceny prosecution, the burden is upon the Commonwealth to prove beyond a reasonable doubt that the value of the goods stolen equals at least the amount fixed by statute in definition of the offense. While the original purchase price of an item may be admitted as evidence of its current value, there must also be "due allowance for elements of depreciation." Without a showing of the effect of age and wear and tear on the value of an item such as a typewriter, the jury might be misled to believe that original price equals current value.
Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d 792, 792 (1981) (citations omitted). Dunn controls this case.
The Commonwealth has suggested that a jury should be permitted to use its collective common sense to determine value and, thus, argues that pictures of the stolen items support this verdict. We disagree. The common sense of a jury cannot be used as a substitute for the burden the Commonwealth must bear in a grand larceny prosecution to prove beyond a reasonable doubt that the value of the stolen property equals at least the amount fixed by statute in definition of the offense.
Accordingly, appellant's conviction for grand larceny is reversed and set aside, and the case is remanded for a new trial upon a charge of petit larceny. See Dunn, 222 Va. at 706, 284 S.E.2d at 793.
Reversed and remanded.