                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


EMILY REGINA BENTLEY
                                         MEMORANDUM OPINION * BY
v.        Record No. 1569-97-2           JUDGE JOSEPH E. BAKER
                                              MAY 5, 1998
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF HALIFAX COUNTY
                    William L. Wellons, Judge
          J. William Watson, Jr. (Watson & Nelson,
          P.C., on brief), for appellant.

          Richard B. Campbell, Assistant Attorney
          General (Richard Cullen, Attorney General;
          John K. Byrum, Jr., Assistant Attorney
          General, on brief), for appellee.



     Emily Regina Bentley (appellant) appeals from her bench

trial conviction by the Circuit Court of Halifax County (trial

court) for embezzlement.   She contends that the evidence is

insufficient to prove perishable merchandise she took from her

employer was valued at $200 or more and that the trial court

erred when it considered the retail value of the merchandise

taken rather than the wholesale price of perishable goods.

     Viewing the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom, the record discloses that in August 1996,

appellant was working as a deli manager at the Fresh & Friendly

food store in South Boston.   Without the knowledge of store
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
manager Gary Jones, appellant simultaneously operated her own

bakery in nearby Brookneal.

        In August 1996, Fresh & Friendly had an established policy

for the handling of out-of-date bakery goods.    Each item was

marked with a sale date and was kept on the shelves for sale

through that date.    On the morning following expiration of the

sale date, the items were removed from the sales floor and placed

in the back of the store for donation to the Patrick Henry Boys

Home.    The store donated only out-of-date items to the Boys Home,

and if the Boys Home staff did not retrieve the donated items

within a few days, the store discarded them.
        Between August 12 and 19, 1996, by the method described

below, appellant removed a quantity of baked goods from Fresh &

Friendly.    With the aid of Julia Gravitt, who was an employee of

appellant's Brookneal store, and Albert Seamster, appellant

filled a shopping cart with bread and pastry products from the

store floor and allowed Gravitt and Seamster to remove them from

the store without payment or authorization.    On two occasions,

Seamster and Gravitt took two carts of goods, one that appellant

filled with items from the floor and another which had already

been filled with in-date items.    On at least one occasion, police

saw appellant take the goods to her Brookneal bakery.

        On Monday, August 12, Pamela Moore, the produce manager,

noticed in the back of the store a grocery cart filled to the top

with baked goods.    She examined ten to twelve items in the cart




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and determined they were "in date"--dated August 12.     Later that

morning, Seamster entered the store and helped appellant fill a

second cart with in-date items from the sales tables.    Seamster

and Gravitt then removed the two full carts from the store.       They

left behind a box of out-of-date items being saved for the Boys

Home.

        On August 14, Moore again found a cart containing goods

dated for that day in the back of the store.    Seamster and

Gravitt again came to the store and, with appellant's help,

filled a second cart with baked goods from the floor in the same

way as before.    One of the carts was "heaping full."   Again,

Seamster and Gravitt took the goods and left without paying.
        On August 15 and 16, appellant repeated this process with

the aid of Seamster and Gravitt, but filled only one cart on each

of those dates.    On August 16, the cart they filled was "heaping

over with . . . stuff."    Similar events occurred on August 17.

        When Fresh & Friendly employees observed appellant, Gravitt

and Seamster removing the goods in the described manner, they

initially thought Gravitt and Seamster were from the Boys Home.

They reported the suspicious events to store manager Jones, whose

suspicions were heightened on August 19, when he personally

observed a cart at the rear of the store filled two-thirds full

with current-date items.    Jones inventoried the items in the cart

and found their sales prices totaled $142.    Later that morning,

Seamster and a woman arrived at the store, picked up the cart,




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loaded its contents into a gray van, drove off without paying for

the products, and met at an apartment complex where they

transferred the goods into appellant's car.   Appellant then drove

with the woman to appellant's Brookneal bakery store where they

unloaded the items.   At trial, Jones identified the items as

those he had inventoried at the rear of Fresh & Friendly on the

morning of August 19.

     Jones testified on cross-examination that, of the items in

the cart on August 19, about half of them were actually made in

the store and were priced with a "built in profit margin."   If

the items were not sold by the end of the day on their sale date,

they could only be thrown away or given away, and their only

"value" at that point "was a loss for the store."   The store

"[kept] a record" of "what they pulled [from the shelves] and

what was going to be thrown away."
     Code § 18.2-111 describes acts that constitute embezzlement

and declares such actors to be guilty of larceny.
          A person who takes personal property from the
          possession of another without the owner's
          consent and with intent to deprive him of
          possession permanently is guilty of common
          law larceny. A person entrusted with
          possession of another's personalty who
          converts such property to his own use or
          benefit is guilty of the statutory offense of
          embezzlement.


Smith v. Commonwealth, 222 Va. 646, 649, 283 S.E.2d 209, 210

(1981) (citation omitted).   Proof was adduced that on several

days during a period of one week, August 12 to 19, 1996,



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appellant and her agents placed current-date bread products owned

by Fresh & Friendly in a cart and, without paying for them or

obtaining permission, removed the products from Fresh & Friendly

and loaded them into a van.      On at least one occasion, the

products were transferred to appellant's separately owned and

operated bakery.      When these events occurred, appellant was

employed by Fresh & Friendly as a deli manager.      Therefore, the

evidence proved that appellant was guilty of embezzlement,

punishable as larceny.

                 I.   Value Equal to or Greater than $200

        Appellant argues that the goods were not shown to have any

value or, in the alternative, were not proved to have a value of

at least $200 so as to constitute grand larceny.

        The record shows that a store manager discovered the method

used by appellant to embezzle the products and on August 19

inventoried the products that had been loaded in a cart placed at

the rear of the store.      At trial, he gave the products' value as
        1
$142.       Shortly thereafter, two of appellant's agents removed the

products from the store, and appellant and one of those agents

subsequently transported them to appellant's store.         There was

evidence that on five other occasions between August 12 and

August 19, similar, currently dated merchandise had been removed

in equal or greater quantities.      We hold that sufficient evidence

        1
      A lower sum of $103 may have been claimed in a companion
case; however, the evidence in this case proved a value of $142.




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was presented from which the trier of fact could infer that the

like goods taken on separate days during the one-week period

were, at a minimum, of like value, totaling a sum in excess of

$200 so as to sufficiently prove the taking was felonious, in

violation of Code §§ 18.2-95 and 18.2-111.

                     II.   Retail or Wholesale

     Appellant asserts in the alternative that the value of

an embezzled product must be based upon its wholesale cost to

Fresh & Friendly rather than the retail selling price.     We

disagree.   The Commonwealth adduced evidence of the price for

which the products were offered for sale and for which a customer

may have purchased them.   The value of property is measured as of

the time of the theft, and the original purchase price may be

admitted as evidence of current value.     See Parker v.

Commonwealth, 254 Va. 118, 121, 489 S.E.2d 482, 483 (1997).

Moreover, the opinion testimony of the owner of a stolen item

generally is competent and admissible on the issue of the value

of that property, see id., and uncontradicted evidence that
merchandise was displayed in a retail establishment for regular

sale at a marked price can serve as sufficient circumstantial

evidence of fair market value.     See Boone v. Stacey, 597 F. Supp.

114, 117 (E.D. Va. 1984) (shoplifting offense).    Although the

items appellant embezzled were perishable, the evidence proved

that the sale dates of the items had not passed when the items

were taken, making the retail sales price proper evidence of




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value.

     For the reasons stated, the judgment of the trial court is

affirmed.

                                                        Affirmed.




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