                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Annunziata
Argued by teleconference


RONALD IRVING MITCHELL
                                             MEMORANDUM OPINION * BY
v.   Record No. 1549-01-2                  JUDGE ROSEMARIE ANNUNZIATA
                                                   MAY 21, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                         Cleo E. Powell, Judge

             Randy B. Rowlett (Gordon, Dodson & Gordon, on
             brief), for appellant.

             Marla Graff Decker, Assistant Attorney
             General (Jerry W. Kilgore, Attorney General,
             on brief), for appellee.


     Ronald Irving Mitchell was convicted at a bench trial of

grand larceny, in violation of Code § 18.2-95.      He was sentenced

to five years in prison, with three years and ten months

suspended.    He appeals on the ground that the evidence was

insufficient to prove that the value of the stolen item was $200

or more.   For the reasons that follow, we affirm his conviction.

                              Background

     On January 8, 2001, Robert Collins, a loss prevention

associate at Wal-Mart in Chesterfield County, was alerted to watch

Mitchell in the electronics department.     Collins observed Mitchell


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
looking at computers and speaking with a sales associate about the

computers.   The associate and Mitchell were pointing at the

computers and looking at the size of the boxes.

     Shortly thereafter, Collins saw the defendant "remove[] one

computer from th[e] pallet and place[] it in his shopping cart."

Collins photographed Mitchell taking the computer.    Collins then

watched Mitchell push the shopping cart into the electronics

department where he spoke with a man and a woman.    The three

individuals walked around the department for a while and then

headed towards the front of the store.   Pushing the shopping cart

with the computer in it, Mitchell followed the two other people

who had a shopping cart that contained a VCR and two CD players.

     Collins watched as Mitchell "passed all potential points of

sale without paying for [the] computer," exited the first set of

doors, and passed through the electronic surveillance system.

When Mitchell observed Collins and his partner apprehend the two

other individuals, his "eyes opened extremely wide, [and he]

immediately did a 180 with the shopping cart."    Mitchell pushed

the shopping cart with the computer towards a closed check-out

lane, where he abandoned it and walked towards the exit door.

     Collins approached the defendant and apprehended him.

Collins asked Mitchell if he knew why he had been stopped.     He

said "he had no idea."   Mitchell first claimed that he "never saw

[the] computer before in [his] life."    However, he eventually told

Collins that he wanted to buy the computer for his child.    Because

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Mitchell had only $160 in his pocket, Collins asked how he planned

to pay for the computer.   Mitchell responded that he could "deal

for the price or bargain for the price."

     Mitchell later admitted that he had accompanied the two other

people to the store in a "pick-up truck."   In his statement, he

claimed he "put the computer in the cart, but never left the

store."

     At trial, Collins testified that the computer has a value of

$798, without tax.   Although he never opened the computer box to

inspect the contents, he handled the box and noted that the box

"was factory sealed with the original tape, Hewlett Packard

stickers that go across the seams of the box."   He also stated

that he was "very certain of the contents of that box based on the

factory seals, [and the fact] that the next person who picked up

that box paid $798 even [sic] for that box."

                               Analysis

     Mitchell does not contest the Commonwealth's proof that he

stole the computer box.    Rather, he argues that the Commonwealth

failed to prove the value of the box and its contents. 1   He argues

that the box may not have contained a computer or that the

computer "may have been destroyed in transit, or suffered from



     1
       Code § 18.2-95 provides, in pertinent part: "[a]ny person
who . . . commits simple larceny not from the person of another
of goods and chattels of the value of $200 or more . . . shall
be guilty of grand larceny . . . ." Code § 18.2-95(ii).


                                - 3 -
some other devaluing event."    We find no merit in Mitchell's

contention.

     It is well settled that when the sufficiency of the evidence

is challenged on appeal, "[w]e view the evidence in the light

most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible from the evidence."

Cooper v. Commonwealth, 31 Va. App. 643, 646, 525 S.E.2d 72, 73

(2000).     We, therefore, "discard the evidence of the accused in

conflict with that of the Commonwealth, and regard as true all

the credible evidence favorable to the Commonwealth . . . ."

Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,

866 (1998).     The credibility of the witnesses and the weight of

the evidence are matters to be determined solely by the trier of

fact.     Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382

S.E.2d 258, 259 (1989).     Furthermore, the decision of the trial

court will not be disturbed unless plainly wrong or without

evidence to support it.     McGee v. Commonwealth, 25 Va. App. 193,

197-98, 487 S.E.2d 259, 261 (1997) (en banc).     "If there is

evidence to support the conviction," this Court will not

substitute its judgment for that of the trier of fact, even were

our opinion to differ.     Commonwealth v. Presley, 256 Va. 465,

466, 507 S.E.2d 72, 72 (1998).

        To convict an individual for grand larceny, the Commonwealth

must prove, inter alia, that the value of the stolen property is

at least equal to the amount fixed by the statute.    Wright v.

                                 - 4 -
Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954).     The

"value" attributed to stolen personal property is equivalent to

the fair market value of the property at the time of the theft,

or, if there is no market value, the actual value.   Lund v.

Commonwealth, 217 Va. 688, 692, 232 S.E.2d 745, 748 (1977).    Like

any other element of a crime, value may be proven by direct or

circumstantial evidence.   See Veney v. Commonwealth, 212 Va. 805,

806-07, 188 S.E.2d 80, 81-82 (1972) (finding that circumstantial

evidence proved the value of the stolen item at issue).    Evidence

that establishes the retail value of a new item is proof of its

value.   Robinson v. Commonwealth, 258 Va. 3, 5, 516 S.E.2d 475,

476 (1999).

     The Commonwealth presented sufficient evidence in this case

to prove the retail value of the computer.   First, Collins

testified that the computer was priced at $798.   Mitchell did not

object to this testimony or challenge Collins' knowledge

concerning the value of the computer.   Second, it is

uncontradicted that the box was "factory sealed with the original

tape [and] Hewlett Packard stickers that go across the seams of

the box."   Third, the computer was returned to display for sale.

Fourth, the computer was purchased by another customer for $798

and not returned.

     In addition, Mitchell's own statements support the trial

court's conclusion that the box contained a computer valued at the

retail price.   At trial, when asked, "Did you put a computer in a

                               - 5 -
cart," Mitchell said, "Yes, I did."     He later said, "The only

thing I'm guilty of, Your Honor, is . . . taking the computer and

putting it in the basket . . ." and "I admit I'm wrong for putting

the computer in the basket . . . . "

     Furthermore, the Commonwealth need only exclude "hypotheses

of innocence that flow from the evidence."     Dowden v.

Commonwealth, 260 Va. 459, 468, 536 S.E.2d 437, 442 (2000); accord

McNair v. Commonwealth, 31 Va. App. 76, 86, 521 S.E.2d 303, 308

(1999) (en banc).    Whether a "hypothesis of innocence is

reasonable is a question of fact," and a finding by the trial

court is binding on appeal "unless plainly wrong."     Grier v.

Commonwealth, 35 Va. App. 560, 571, 546 S.E.2d 743, 748 (2001).

In this case, there was no evidence establishing that the computer

box was empty or that the computer was destroyed in transit or

otherwise defective.   Indeed, the computer's presence in a factory

sealed box that was displayed for sale fully supports the

conclusion that it was neither removed from the box nor damaged

before Mitchell placed it in his cart.     Therefore, the trial

court's failure to require the Commonwealth to exclude Mitchell's

hypothesis that the box was empty or the computer was damaged was

not plainly wrong.

     For the foregoing reasons, Mitchell's conviction for grand

larceny is affirmed.



                                                      Affirmed.

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