                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Frank and Kelsey
Argued at Richmond, Virginia


WILLARD LEE TALLEY, SR.
                                                               MEMORANDUM OPINION * BY
v.     Record No. 1517-09-2                                     JUDGE ROBERT P. FRANK
                                                                   NOVEMBER 9, 2010
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
                                 David H. Beck, Judge

                 Brenda Mallinak, Assistant Public Defender (Office of the Public
                 Defender, on brief), for appellant.

                 Joshua M. Didlake, Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       Willard Lee Talley, Sr., appellant, was convicted, in a bench trial, of petit larceny, third

offense, a felony in violation of Code § 18.2-103. On appeal, he contends the evidence was not

sufficient to convict him. Essentially, he argues there was no evidence that the item concealed

belonged to another. For the reasons stated, we affirm the judgment of the trial court.

                                          BACKGROUND

       On November 18, 2008, Deputy Adam Assur of the Spotsylvania Sheriff’s Department

responded to a 911 call from a Ms. Cash, an employee of Famous Footwear. Upon arriving, the

deputy saw appellant standing between two rows of shoes.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
         As Ms. Cash explained to the deputy why she called 911, 1 appellant “immediately” stated,

“I didn’t steal anything, the shoe’s right here.” Appellant then held up a tan boot and placed it on

top of a row of shoes. The deputy then observed appellant remove a second tan boot from

underneath his windbreaker and hold the boot in his hand. Deputy Assur testified the boot had been

concealed under appellant’s windbreaker.

         Appellant was found guilty of petit larceny, third offense. This appeal follows.

                                              ANALYSIS

         On appeal, appellant contends that in order for him to be convicted of larceny, the item

concealed must belong to another. Since there is no evidence that the boots belonged to the shoe

store, appellant argues, the evidence was insufficient to convict him. Appellant maintains the

evidence does not exclude his ownership of the boots or that he had sometime earlier paid for the

concealed boot. 2

         When considering a challenge that the evidence presented at trial is insufficient, we

“presume the judgment of the trial court to be correct” and reverse only if the trial court’s decision

is “plainly wrong or without evidence to support it.” Davis v. Commonwealth, 39 Va. App. 96, 99,

570 S.E.2d 875, 876-77 (2002). We do not “substitute our judgment for that of the trier of fact.”

Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002). “Instead, the

relevant question is whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “This familiar standard gives




         1
             The record does not indicate the specific conversation between Ms. Cash and Deputy
Assur.
         2
             Appellant does not challenge the other elements of the offense.

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full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh

the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id.

         “Larceny is 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.” Bright v.

Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987). To convict an accused of

unlawful concealment in violation of Code § 18.2-103, 3 “[t]he Commonwealth must prove (1) a

willful concealment of merchandise, done (2) with the intent to convert the merchandise or to

defraud the storekeeper.” Snead v. Commonwealth, 11 Va. App. 643, 646, 400 S.E.2d 806, 807

(1991). The willful concealment of goods while still on the premises is prima facie evidence of

intent to defraud the owner of the value of the goods or merchandise at issue. Code § 18.2-103.

         The Commonwealth concedes that there was no direct evidence that the concealed boot was

the property of the shoe store. However, the Commonwealth argues that circumstantial evidence

proves ownership. We agree.

         The Supreme Court of Virginia has consistently evaluated the sufficiency of circumstantial

cases:




         3
             Code § 18.2-103 provides in pertinent part:

                  Whoever, without authority, with the intention of converting goods
                  or merchandise to his own or another’s use without having paid the
                  full purchase price thereof, or of defrauding the owner of the value
                  of the goods or merchandise, (i) willfully conceals or takes
                  possession of the goods or merchandise of any store or other
                  mercantile establishment . . . when the value of the goods or
                  merchandise involved in the offense is less than $200, shall be
                  guilty of petit larceny . . . . The willful concealment of goods or
                  merchandise of any store . . . while still on the premises thereof,
                  shall be prima facie evidence of an intent to convert and defraud
                  the owner thereof out of the value of the goods or merchandise.



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               It suffices to say that if the proof relied upon by the
               Commonwealth is wholly circumstantial, as it here is, then to
               establish guilt beyond a reasonable doubt all necessary
               circumstances proved must be consistent with guilt and
               inconsistent with innocence. They must overcome the
               presumption of innocence and exclude all reasonable conclusions
               inconsistent with that of guilt. To accomplish that, the chain of
               necessary circumstances must be unbroken and the evidence as a
               whole must satisfy the guarded judgment that both the corpus
               delicti and the criminal agency of the accused have been proved to
               the exclusion of any other rational hypothesis and to a moral
               certainty. Yet what inferences are to be drawn from proved facts is
               within the province of the [fact finder] and not the court so long as
               the inferences are reasonable and justified.

La Prade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950).

       Circumstantial evidence is not viewed in isolation. Emerson v. Commonwealth, 43

Va. App. 263, 277, 597 S.E.2d 242, 249 (2004). “While no single piece of evidence may be

sufficient, the ‘combined force of many concurrent and related circumstances, each insufficient

in itself, may lead a reasonable mind irresistibly to a conclusion.’” Derr v. Commonwealth, 242

Va. 413, 425, 410 S.E.2d 662, 669 (1991) (quoting Stamper v. Commonwealth, 220 Va. 260,

273, 257 S.E.2d 808, 818 (1979) (other citation omitted)).

       Appellant’s assignment of error states that the trial court erred in finding appellant guilty

because “there was no evidence presented that anyone other than the appellant owned the boots.”

By convicting appellant, the trial court necessarily found that appellant did not own the boots.

Our inquiry, therefore, is whether the record supports the trial court’s finding that someone other

than appellant owned the boots.

       Appellant argues no evidence eliminated the possibility he owned the boots.

               Although, “a factfinder cannot arbitrarily disregard a reasonable
               hypothesis of innocence,” Cooper v. Commonwealth, 54 Va. App.
               558, 573, 680 S.E.2d 361, 368 (2009), “whether the hypothesis of
               innocence is reasonable is itself a ‘question of fact,’” Clanton [v.
               Commonwealth], 53 Va. App. [561,] 572, 673 S.E.2d [904,] 910
               [(2009) (en banc)] (citations omitted). “‘Merely because
               defendant’s theory of the case differs from that taken by the
                                                -4-
               Commonwealth does not mean that every reasonable hypothesis
               consistent with his innocence has not been excluded.’” Id.
               (quoting Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d
               22, 27 (1964)).

Wilder v. Commonwealth, 55 Va. App. 579, 595, 687 S.E.2d 542, 550 (2010).

       When Ms. Cash explained to the deputy the purpose of the call to 911, appellant

immediately interjected that he did not steal anything. His response was not that the boots were

his.

       After denying he stole anything, appellant put one boot on top of a row of shoes. He then

removed another boot concealed in his windbreaker. The deputy described both boots as “tan

Chukka-style Timberland” boots. The fact finder saw photos of the two similar boots and could

determine that they were identical boots. Because appellant placed one boot back onto a shelf

where other shoes were for sale, the fact finder could properly infer that appellant took both

boots from the shelves in the store and that the boots were owned not by appellant, but by the

store. Appellant’s actions belied his argument that he owned the boots.

       “[T]he Commonwealth need only exclude reasonable hypotheses of innocence that flow

from the evidence, not those that spring from the imagination of the defendant.” Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). Here, in order for the fact

finder to conclude that appellant owned the boots, the fact finder must conclude that appellant, as

the owner of the boots, brought his own boots into the shoe store, without wearing them,

concealed one boot in his jacket and voluntarily placed his other boot on a shelf. This scenario is

incredible, unreasonable, and unsupported by any evidence. Additionally, Assur testified that

Ms. Cash indicated to him that she suspected appellant of shoplifting. Because there was no

objection to this testimony, the trial court was free to consider this as evidence. “If incompetent

or hearsay evidence is admitted without objection thereto, the [fact finder] may properly consider

it as evidence in the case.” Gutshall v. Hamilton, 134 Va. 416, 422, 114 S.E. 595, 597 (1922).
                                                -5-
The fact finder could properly infer appellant took merchandise owned by the store, not by

appellant.

       Appellant had willfully concealed merchandise while on the store’s premises, thus

creating a prima facie case of an intent to steal and defraud the owner. Code § 18.2-103. “Prima

facie evidence is ‘[e]vidence that will establish a fact or sustain a judgment unless contradictory

evidence is produced.’” White v. Commonwealth, 272 Va. 619, 626, 636 S.E.2d 353, 357

(2006) (quoting Black’s Law Dictionary 598 (8th ed. 2004)).

       Once the Commonwealth met its prima facie showing, “[appellant] had the option of

presenting evidence raising a reasonable doubt regarding one or more of those elements.”

Kingsbur v. Commonwealth, 267 Va. 348, 351, 593 S.E.2d 208, 210 (2004). No evidence

contradicts the Commonwealth’s prima facia case.

       The evidence supports the trial court’s finding of guilt. The judgment of the trial court is

affirmed.

                                                                                          Affirmed.




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