Summary
holding that a verdict "based only upon speculation and conjecture . . . cannot be permitted to stand"
Summary of this case from Holloway v. ComOpinion
44221 Record No. 801766.
December 4, 1981
Present: All the Justices.
The evidence is insufficient to prove the requisite amount under Code Sec 18.2-95 for a conviction of grand larceny.
(1) Criminal Procedure — Larceny, Grand — Statutory Amount (Code Sec. 18.2-95) — Burden of Proof — On Commonwealth to Prove Beyond a Reasonable Doubt that Value of Goods Stolen at Least Equals Amount Fixed by Statute in Definition of Offense.
(2) Criminal Procedure — Larceny, Grand — Statutory Amount (Code Sec. 18.2-95) — Current Value — Evidence — Original Purchase Price may be Admitted With Due Allowance for Elements of Depreciation.
(3) Criminal Procedure — Larceny, Grand — Statutory Amount (Code Sec. 18.2-95) — Evidence — No Evidentiary Basis for Jury Finding as to Value to Sustain Grand Larceny Conviction.
Kenneth Odell Dunn was convicted of grand larceny. The evidence indicated that the stolen property consisted of a framed dollar bill having no special value, $1.20 in coins laminated in clear plastic, and a typewriter purchased new for $150 ten years before the theft. The Commonwealth offered no evidence concerning the current value or the present condition of the typewriter, except to show that it was used three days before it was stolen. On appeal, defendant contends the evidence was insufficient to show that the stolen items had a value of $100 or more as required for a grand larceny conviction under Code Sec. 18.2-95.
1. The burden is upon the Commonwealth in a grand larceny prosecution to prove beyond a reasonable doubt that the value of the goods stolen equals at least the amount fixed by Code Sec. 18.2-95 which defines the offense.
2. In a grand larceny prosecution the original purchase price of an item may be admitted as evidence of its current value but there must also be due allowance for elements of depreciation.
3. Here there was no evidentiary basis for the finding of the value of the typewriter which was the major item stolen and thus the conviction of grand larceny could have been based only upon speculation and conjecture.
Appeal from a judgment of the Circuit Court of Albemarle County. Hon. F. Ward Harkrader, Jr., judge presiding.
Reversed and remanded.
Fred G. Wood, Jr. (R. Lecky Stone, Jr.; Fred G. Wood, Jr. Associates, on brief), for appellant.
Julia Krebs-Markrich, Assistant Attorney General (Marshall Coleman, Attorney General, on brief), for appellee.
Convicted by a jury of grand larceny, the defendant, Kenneth Odell Dunn, was sentenced to serve five years in the penitentiary. On appeal, he contends the evidence was insufficient to show that the stolen items had a value of $100 or more.
The theft in this case occurred December 16, 1979. At its 1980 session, the General Assembly amended Code Sec. 18.2-95 to increase to $200 the amount necessary to constitute grand larceny. Acts 1980, c. 175.
The evidence shows that the stolen property consisted of a framed dollar bill having no special value, $1.20 in coins laminated in clear plastic, and a typewriter purchased new for $150 ten years before the theft. The Commonwealth offered no evidence concerning the current value or the present condition of the typewriter, except to show that it was used three days before it was stolen.
[1-2] 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. Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954). 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." Gertler v. Bowling, 202 Va. 213, 215, 116 S.E.2d 268, 270 (1960). 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.
Here, in addition to the typewriter, the defendant stole items worth $2.20. The jury, therefore, must have found the typewriter was worth at least $97.80. There was no evidentiary basis, however, for this finding. Hence, the verdict could have been based only upon speculation and conjecture and cannot be permitted to stand.
Accordingly, the defendant's conviction of grand larceny will be reversed and set aside, and the case will be remanded for a new trial upon a charge of petit larceny.
Reversed and remanded.