Frango v. Commonwealth

66 Va.App. 34

782 S.E.2d 175

James Lee FRANGO

v.COMMONWEALTH of Virginia.

Record No. 1195–15–3.

Court of Appeals of Virginia, Salem.

Feb. 23, 2016.

Seth C. Weston(Gilbert, Bird & Weston, P.C., on briefs), Roanoke, for appellant.

Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: CHAFIN, O'BRIENand RUSSELL, JJ.

RUSSELL, Judge.

James Lee Frango, appellant, was convicted of grand larceny of timber in violation of Code § 55–334.1and, for unrelated conduct, second offense misdemeanor petit larceny. On appeal, he argues that the evidence was insufficient to sustain the conviction for violation of Code § 55–334.1because the Commonwealth failed to prove that the timber had any value, let alone that the timber was worth $200. He also contends the trial court erred in sentencing him to two years' incarceration on the second offense petit larceny conviction. For the following reasons, we reverse and remand both convictions for further proceedings.

BACKGROUND

Ricky Smith, appellant's next-door neighbor, testified that, sometime after March 8, 2015, he noticed several trees had been cut from his property. He prepared a list of the missing trees, fifteen oaks and three pines, and the Commonwealth submitted the list as Exhibit One at trial. Smith testified that a certified forester from Arrow Forestry came to his property to prepare a valuation report of the missing trees. The prosecutor asked that a copy of the report be submitted to the court, stating, "I'm going to submit [the report] to the Court upside down and not to be read into evidence at this point [and] only if there's a determination of guilt or innocence will I, will I ask the Court to review this." Smith detailed his reasoning as to why appellant was the person who had taken the trees, including prior contacts with appellant and that the trees would have been removed from the site through appellant's property as opposed to through Smith's.

Deputy Paris Parson testified that he spoke with appellant by telephone. Appellant denied cutting the live trees on Smith's property, although he did admit to cutting some "dead snags" off Smith's land.

Appellant testified and denied cutting anything except "dead snags" from Smith's property at or near the time in question. After suggesting others who may have taken the trees, he noted that he believed that approximately eight oak trees had been removed from Smith's property. He estimated that the trees were thirty-feet tall. He said he could see the stand of trees from his house, but did not see anyone cut down the trees, cut them up or remove them.

He also testified that, on a prior occasion, he did cut and remove an oak tree from the stand of oak trees in question. He said it had fallen on a power line and that he had cut it into sections and used it as firewood.

At the close of the evidence, the court continued the matter, indicating the court would hear from any additional defense witnesses when the court reconvened. Upon return, and at the conclusion of additional testimony, appellant moved the court to strike the Commonwealth's evidence, arguing that the Commonwealth never offered the forester's report into evidence, and therefore, failed to prove value. Based on the court's own notes and the number of trees removed, the court overruled the motion and found appellant guilty of grand larceny, sentencing him to two years of incarceration on the charge.¹ Appellant filed a motion to reconsider, arguing that the Commonwealth failed to prove value. Upon further argument of counsel and review of transcripts, the trial court denied the motion, explaining:

[I]n fact what would happen then is if there was sufficient evidence to convict of a larceny without having any value then it was agreed upon by the parties that in fact if there was sufficient evidence to convict as larceny then the Court would review the report of the person, the forestry person who did the evaluation, match it up with Exhibit One with the number of trees to place a value on it. And that being the case then that would be the determination of whether or not it would be petit larceny or grand larceny because in fact the number of trees, the description of the trees had already been introduced into evidence, it was only the function of whether or not, as agreed upon by the parties, it would be petit or grand larceny.

In a separate matter, the court convicted appellant of second offense petit larceny. The court sentenced appellant to a term of incarceration of two years for this offense. Appellant did not object to his sentence at that time.

This appeal followed.

ANALYSIS

I. Larceny of Timber

On appeal, appellant does not contest the trial court's conclusion that he was the person who cut down and took the trees from Smith's property. Rather, he challenges his conviction for larceny of timber by arguing that the Commonwealth failed to prove a value of the trees sufficient to establish that he committed grand larceny.

Because appellant's appeal is a challenge to the sufficiency of the evidence, we review the judgment below "with the highest degree of appellate deference." Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006). "An appellate court does not 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.' "

Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009)(quoting Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). Instead, the only "relevant question is, after reviewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010)(emphasis added).

This deferential appellate standard "applies not only to the historical facts themselves, but the inferences from those facts as well." Clanton v. Commonwealth, 53 Va.App. 561, 566, 673 S.E.2d 904, 907 (2009)(en banc ) (internal quotation marks omitted). "Thus, a factfinder may 'draw reasonable inferences from basic facts to ultimate facts,' " Tizon v. Commonwealth, 60 Va.App. 1, 10, 723 S.E.2d 260, 264 (2012)(quoting Haskins v. Commonwealth, 44 Va.App. 1, 10, 602 S.E.2d 402, 406 (2004)), "unless doing so would push 'into the realm of non sequitur, ' " id. (quoting Thomas, 48 Va.App. at 608, 633 S.E.2d at 231).

A. Grand Larceny of Timber

The Commonwealth has conceded that "the trial record fails to demonstrate sufficient evidence to establish the timber's value met the necessary threshold to support his conviction for" grand larceny.² It is important to recognize that the Commonwealth did not concede that the trees were not worth the $200 statutory threshold, but rather, only conceded that the evidence was insufficient to establish that fact. Thus, the concession is one of law, not fact. See Womack v. Circle, 70 Va. (29 Gratt.) 192, 203 (1877) ( "The existence of the facts and circumstances is a question of fact for the jury; their sufficiency, a question of law for the court.").

Although we are not bound by a party's concession of law, Epps v. Commonwealth, 47 Va.App. 687, 703, 626 S.E.2d 912, 919 (2006)(en banc ), aff'd on other grounds, 273 Va. 410, 641 S.E.2d 77 (2007), we believe that the Commonwealth was correct in making this concession.

Contrary to the recollection of the trial court, the record demonstrates that the valuation report was neither offered nor received in evidence in a manner that would allow it to be used to establish that appellant was guilty of grand larceny. To convict a defendant of grand larceny, the Commonwealth "must prove beyond a reasonable doubt not the exact value of stolen property, but only that its value exceeded the statutory minimum." Walker v. Commonwealth, 281 Va. 227, 230, 704 S.E.2d 124, 126 (2011). Because the Commonwealth specifically limited the admission of the valuation report to a sentencing proceeding and expressly stated that it would not be utilized during the guilt phase of trial, the valuation report was not competent evidence from which the trial court could conclude that appellant was guilty of grand larceny.

Thus, the question is whether the remaining evidence would allow a reasonable trier of fact to conclude that the trees taken were worth $200 or more. Viewing the evidence in the light most favorable to the Commonwealth as the party that prevailed below, Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009)(citing Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)), appellant stole eighteen trees, fifteen oaks and three pines, from Smith. Although it is a certainty that some collections of eighteen trees are worth $200 or more, there was insufficient evidence at trial regarding these specific trees to allow a reasonable factfinder to conclude beyond a reasonable doubt that these trees were worth $200 or more. Accordingly, we find that the evidence was insufficient to support appellant's conviction for grand larceny of timber, and thus, reverse that conviction.

B. Petit Larceny of Timber

Appellant also contends that he is entitled to a dismissal of the charge because the evidence was insufficient to convict him of the lesser-included offense of petit larceny.³ Specifically, appellant argues that because the Commonwealth offered no evidence of the monetary value of the trees taken, the evidence does not support a conviction for petit larceny. We disagree.

In most instances, "[i]n Virginia, larceny is a common law crime." Hunt v. Commonwealth, 46 Va.App. 25, 29, 614 S.E.2d 668, 670 (2005)(quoting Bryant v. Commonwealth, 248 Va. 179, 183, 445 S.E.2d 667, 670 (1994)). "An indictment that charges ... larceny in violation of only Code § 18.2–95[or Code § 18.2–96] alleges the common law crime." Id. at 30, 614 S.E.2d at 670(citation omitted). "Thus, unless violation of a specific...