                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Coleman and Willis
Argued at Alexandria, Virginia


FRANCES DENISE HINNANT
                                            MEMORANDUM OPINION * BY
v.         Record No. 0909-95-4            JUDGE SAM W. COLEMAN III
                                                 MAY 7, 1996
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                      Paul F. Sheridan, Judge
           John M. Tran (Greenberg, Bracken & Tran, on
           briefs), for appellant.

           Leah A. Darron, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



     Frances Denise Hinnant was convicted in a jury trial of

petit larceny under Code § 18.2-96.       Hinnant contends that the

trial court erred by refusing to instruct the jury that she was

not guilty of larceny if she believed that the stolen property

had been abandoned, by admitting certain evidence, and by finding

the evidence sufficient to prove that the stolen property had

value.   We hold that the trial court did not err and affirm the

defendant's conviction.
                                  FACTS

     On July 30, 1994, at approximately 9:50 p.m., Shannon

Welford, a security guard at a department store in the Pentagon

City Mall, saw the defendant in the store and began to watch her.

     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Welford testified that she focussed her attention on the

defendant because the defendant was wearing "revealing" clothing

and acting suspiciously.    According to Welford, the defendant

"was looking around nervously in all directions . . . as if . . .

to see if somebody was watching her," and "seemed to be kind of

pacing back and forth in a small area and looking towards the

wrap desk."   Welford observed the defendant remove a blue suit

from one display area and hang it up on another display.     Then

Welford witnessed the defendant make "several tugging motions" at

the suit, and "eventually saw something cupped into her right

hand."
     After the defendant left the store with a male companion,

Welford checked the suit the defendant had been handling and

noticed that three buttons were missing from it.   Welford

testified that the suit was not missing the three buttons before

the defendant handled it.

     Although the defendant passed several cashiers on her way

out of the store, she made no attempt to pay for the buttons or

ask an employee whether she could have them.   Welford stopped the

defendant outside the store and asked her to come to the security

office, which the defendant did.   Welford searched the

defendant's purse and found three buttons identical to those

missing from the blue suit.

     When Welford asked the defendant why she took the buttons,

the defendant stated "that she just wanted them and knew it was




                                - 2 -
wrong to do it."    The defendant also "repeatedly asked if she

could just pay for the item and go."

     Welford testified that the suit was valued at $190 prior to

the removal of the buttons, but that without the buttons, the

suit "ha[d] no value to [the store]."   Welford did testify that

"it would be possible that [the suit] -- if it was not destroyed,

. . . would be sent to a rack store and sold for a very low rate,

a very low price."    Welford further testified that although the

store does not sell buttons, the buttons were valued at

approximately $5.
     The defendant testified that she found the buttons on the

floor and that she thought they were trash.      She testified that

she planned to ask the cashier if she could have the buttons, but

forgot to do so after her companion came over and told her that

the store was about to close.   Michael Wilson, the defendant's

companion, testified that he did not see the defendant take the

buttons, but admitted that he was not with her the entire time

they were in the store.

     On rebuttal, Welford testified that she found several other

buttons in the defendant's purse in addition to those missing

from the blue suit.   The following morning, Welford investigated

further and found a red dress in another department of the store

that was missing buttons identical to those found in the

defendant's purse.

                       ABANDONMENT INSTRUCTION




                                - 3 -
     At the conclusion of all the evidence, the defendant

requested the trial court to give the jury the following

instruction:
          Instruction F -- If you believe the defendant
          . . . took the buttons she is charged with
          stealing under a belief that the buttons were
          abandoned property, then, even though her
          belief was mistaken, you shall find the
          defendant not guilty of petit larceny.


The defendant testified that she found the buttons on the floor

and that she thought "[t]hey were trash."   She contends,

therefore, that the trial court erred by refusing Instruction F

because she was entitled to defend the charge of larceny by

proving that at the time of the taking she possessed an honest

belief that the property had been abandoned and, thus, had no

intent to steal the property.    See Barnes v. Commonwealth, 190

Va. 732, 740, 58 S.E.2d 12, 16 (1950); see also Butts v.

Commonwealth, 145 Va. 800, 815, 133 S.E. 764, 768 (1926).

     On appeal of the trial court's denial of a defense

instruction, we review the evidence in the light most favorable

to the defendant.   Boone v. Commonwealth, 14 Va. App. 130, 131,

415 S.E.2d 250, 251 (1992).   Failure to give the defendant's

instruction is reversible error if the instruction is supported

by credible evidence that amounts to more than a mere

"scintilla."   Id. at 132, 415 S.E.2d at 251.

     In the Barnes case, the defendants were convicted of

stealing four large rolls of cable from a shipyard dump.      Barnes,

190 Va. at 735, 58 S.E.2d at 13.   At trial, the defendants



                                - 4 -
testified that they had previously removed cable from the dump

"and that the persons in charge of the Shipyard had acquiesced in

this practice for some years."    In fact, one of the defendants

testified that the shipyard's foreman "had told a group of men,

including himself, that they could take anything on the dump as

long as they 'did not bother lumber.'"    Id. at 736, 58 S.E.2d at

14.   Consequently, the trial court instructed the jury that it

must find the defendants not guilty if it "believe[d] from the

evidence that the [shipyard] maintained a dump at or near the

premises and that they suffered or permitted the accused and

others to reclaim metal and other scrap materials therefrom; and

. . . that the accused found the cable in question upon the said

dump and removed it as they had been permitted to do on other

occasions, under an honest belief that it was abandoned
material."    Id. at 740, 58 S.E.2d at 16 (emphasis in original).

      The evidence in Barnes that they had been told or allowed to

remove the property from the dump in the past was a reason that

would have allowed the jury to find that the defendants had

reason to believe that the shipyard had abandoned the cable in

the dump.    See also State v. Hayes, 67 S.E.2d 9, 16 (W. Va. 1951)

(holding that the defense instruction on abandoned property

should have been given where "the uncle of one of the defendants

had told him a year before the taking that the [property] had

been abandoned," and the property was located in a dump and was

in a dilapidated condition).   Thus, Barnes indicates that a trial




                                 - 5 -
court must give an instruction on abandoned property when the

evidence proves that a reason exists for the accused to have a

good faith belief that the property is abandoned.

     This principle, commonly referred to as a bona fide claim of

right, which simply negates the existence of an intent to steal,

is uniformly recognized in other jurisdictions.     See Butts, 145

Va. at 813, 133 S.E. at 768; see also Nicholson v. State, 369 So.

2d 304, 307 (Ala. Crim. App. 1979) ("Th[e] intent [to commit

larceny] is lacking and the defendant is not guilty of larceny if

he has taken the property with the reasonable and actual belief
that it was abandoned.") (emphasis added); Szewczyk v. State, 256

A.2d 713, 715 (Md. Ct. Spec. App. 1969) (same); State v. Gage,

136 N.W.2d 662, 665 (Minn. 1965) (same).   For instance, in

Nicholson v. State, the Court of Criminal Appeals of Alabama held

that the trial court erred by refusing to give an instruction on

abandoned property because "there was evidence by virtue of the

appellant's testimony, other testimony, the dilapidated condition

of the property taken and its location which tended to show that

the trucks may have been abandoned."   369 So. 2d at 307; see also
Jordan v. State, 107 Tex. Crim. 414, 419-20 (Tex. Crim. App.

1927).

     Here, the facts do not provide a reasonable basis for the

defendant to believe that the buttons were abandoned.    A

commercial retail establishment does not abandon its merchandise

by discarding it or leaving it on the floor.   A patron of a




                              - 6 -
clothing store has no reason or basis to conclude that

merchandise or matching buttons from merchandise that are found

on the floor where clothing is on display have been abandoned.

The location of property is a factor to be considered in

determining whether a person might reasonably believe that the

property has been abandoned.   For instance, if buttons had been

found in a trash can, a person might reasonably conclude that

property is abandoned.   In both Barnes and Butts, prior

acquiescence or consent to removing cable from the dump and

Butts's entitlement to be paid his wages were reasons for the

defendants to believe, in good faith, that they had a right to

claim the property.   No reasonable person would have believed

that the store had abandoned its interest in the blue suit if it

had been found on the floor.   Similarly, it is not reasonable to

conclude that the store had abandoned its interest in the

buttons, which were an integral part of the suit.   Even accepting

the defendant's account that she found the buttons on the floor

and did not remove them from the suit, she acknowledged that she

did not have a reason to honestly believe they were abandoned

when she testified that it "did cross [her] mind at first" to ask

someone whether she could take them.    She did not believe that

she had a right to claim the buttons.   Thus, because the

defendant did not produce a scintilla of evidence to prove that

she had a reason to believe, in good faith, that the buttons had

been abandoned, the trial court did not err by refusing



                               - 7 -
Instruction F.

                                  VALUE

     "At the common law, an article to be the subject of larceny

must be of some value.      It is sufficient, however, it is said, if

it be worth less than the smallest coin known to the law."      Evans

v. Commonwealth, 226 Va. 292, 297, 308 S.E.2d 126, 129 (1983)

(quoting Woverton v. Commonwealth, 75 Va. 909, 913 (1881)).

Accordingly, the Commonwealth is not required to prove "that the

subject of petit larceny has a specific value."      Id.

     Because the Commonwealth was not required to prove the

specific value of the buttons, we need not address the

defendant's claim that Shannon Welford had no basis for assigning

a value of $5 to the buttons.      The fact that buttons belonging to

the store were taken is sufficient evidence to prove that

property of "some value" was the subject of petit larceny.

                              ADMISSIBILITY

     The defendant contends that Welford's testimony that the

defendant "was looking around nervously in all directions . . .

as if . . . to see if somebody was watching her" violated the

rule prohibiting lay witnesses from offering their opinions to
            1
the jury.       See Ramsey v. Commonwealth, 200 Va. 245, 249, 105
     1
       Although the defendant did not allege specific grounds at
trial for the objection to Welford's testimony, the trial court
stated that the testimony is "only admitted because it's
[Welford's] state of mind. It's not admitted because [Welford
is] right as to what [the defendant's] state of mind was at the
time." Therefore, the defendant is not barred by Rule 5A:18 from
raising this issue on appeal because the trial court considered
the issue and ruled on it. See Weidman v. Babcock, 241 Va. 40,



                                  - 8 -
S.E.2d 155, 158 (1958).        In addition, the defendant argues that

the trial court abused its discretion by admitting evidence of a

red dress that was missing buttons identical to those found in

the defendant's possession because it was evidence of a prior bad

act. 2       See Knick v. Commonwealth, 15 Va. App. 103, 105, 421

S.E.2d 479, 480 (1992).        We hold that the trial court did not err

by admitting the testimony and the evidence of the red dress.
               Some statements are not mere opinions
          but are impressions drawn from collected,
          observed facts, and are admitted under the
          "collective facts rule." Thus, an "opinion"
          formed by a witness at a given time, may be a
          "fact" that explains why the witness acted in
          a particular way. Making this distinction is
          a question best left to the discretion of the
          trial judge.


Lafon v. Commonwealth, 17 Va. App. 411, 420-21, 438 S.E.2d 279,

285 (1993) (citations omitted).

         Here, Welford testified that the defendant "was looking

around nervously" in the context of explaining why she noticed

the defendant.        As the trial judge noted, Welford's testimony was

offered to explain what she perceived from her observations of

the defendant's "physical acts, . . . eye movements, [and] body

movements."        Therefore, the judge did not abuse his discretion by

admitting the testimony.

         With respect to the admissibility of evidence about the red

dress, evidence of a prior or subsequent offense is admissible if

(..continued)
44, 400 S.E.2d 164, 167 (1991).
         2
       Although the defendant did not offer reasons for her
objection when the dress was admitted into evidence, she had
provided grounds for the objection prior to trial in her motion
in limine.

                                    - 9 -
it is "closely related in time [to the offense charged] and

tend[s] to show a general scheme or guilty knowledge and intent."

 Sutphin v. Commonwealth, 1 Va. App. 241, 246, 337 S.E.2d 897,

899 (1985) (emphasis in original).      Welford testified that the

morning after the defendant was arrested for stealing the buttons

from the blue suit, she searched the store for other merchandise

that was missing buttons.   Welford found the red dress and

determined that it was missing buttons identical to two of the

buttons found in the defendant's possession.     Therefore, the

trial court did not err by admitting evidence pertaining to the

red dress.    Because the red dress was found to be missing buttons

identical to those found on the defendant soon after the she was

arrested for stealing the buttons from the blue suit, it was

reasonable to conclude that the defendant had stolen those

buttons.   The evidence tended to establish a common scheme or

plan to steal buttons from the store's merchandise.
     For the foregoing reasons, we affirm the defendant's

conviction.
                                                            Affirmed.




                               - 10 -
BENTON, J., dissenting.



     Abandoned property cannot be the subject of larceny.       See

Nicholson v. State, 369 So. 2d 304, 307 (Ala. Crim. App. 1979);

Commonwealth v. Meinhart, 98 A.2d 392, 395 (Pa. 1953).     Whether

items found on the property of another are abandoned is a factual

issue that must be decided by a jury when put in issue by the

evidence.   Morissette v. United States, 342 U.S. 246, 276 (1952).

Furthermore, even if the evidence proved the property was not

abandoned, a defendant could not be guilty of larceny if the jury

found she honestly believed it to be abandoned.    Barnes v.

Commonwealth, 190 Va. 732, 740, 58 S.E.2d 12, 16 (1950).    3

Wharton's Criminal Law § 377, p. 447 (15th ed. 1995).

     Hinnant's testimony, if believed by the jury, would have

supported a finding that she had a good faith reasonable belief

that the buttons she found on the floor of the retail store,

which did not sell buttons, were abandoned.   The majority's bald

conclusion that a "commercial retail establishment does not

abandon its merchandise by discarding it or leaving it on the

floor" is not compelled by any rule of law and cannot support the

failure to instruct the jury. "[J]uries are not bound by what

seems inescapable logic to judges."    Morissette, 342 U.S. at 276.

Viewed in the light most favorable to Hinnant, Boone v.

Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992),

the evidence was sufficient to support the giving of the

instruction.


                              - 11 -
     For these reasons, I would reverse the conviction and remand

for a new trial.




                             - 12 -
