Glass v. Commonwealth

74 Va.App. 214

867 S.E.2d 500

Dawan Anthony GLASS

v.COMMONWEALTH of Virginia

Record No. 0294-21-3

Court of Appeals of Virginia, Lexington.

JANUARY 18, 2022

M. Lee Smallwood, II, Deputy Public Defender, for appellant.

Robin M. Nagel, Assistant Attorney General (Mark R. Herring,¹ Attorney General, on brief), for appellee.

Present: Judges Humphreys, Ortiz and Chaney

OPINION BY JUDGE DANIEL E. ORTIZ

Though previously undecided in a criminal matter, the General Assembly's deliberate selection and singular use of the term "fair market cost of repair" in the destruction of property statute raises a novel question. At issue is whether fair market cost of repair includes profits. Appellant Dawan Anthony Glass contends that it does not. Instead, he argues profits were improperly included in the fair market cost of repair amount, causing the damage amount to exceed the statutory threshold and resulting in his felony conviction. Because the phrase "fair market cost of repair" includes a contractor's profit and Glass did not object to the admissibility of testimony regarding the repair value, the Commonwealth presented sufficient evidence for the Danville City Circuit Court to find that Glass committed felony destruction of property. Thus, we affirm the circuit court's decision.

BACKGROUND

In mid-2020, Rodney Barnett reported to police that someone had broken a window at his Wyllie² Avenue property. The responding officer spoke with Glass, and Glass confessed to breaking the window. Barnett replaced the broken window himself for $60. Several days later, Steven Decker, another property owner, told police that he discovered several broken windows and damaged storm and internal doors at his Wyllie Avenue property. Decker, an experienced contractor, informed police that it would cost approximately $1,165 to repair the damage. While the officer was investigating the damage, neighbors informed him that Glass caused the damage. The officer located Glass, and Glass eventually confessed to damaging the property.

On direct examination at trial, Decker explained he was a contractor with more than thirty years of experience and that he used his employees to repair the property damage. He noted that his employees had to quit another job to repair the Wyllie Avenue property so his future renters could move into the duplex. In all, he estimated a total cost of $1,165, which included labor, materials, and a fifteen to twenty percent profit margin. During cross-examination, Decker also stated that "if [he] had to do the same thing for somebody else's house that is what [he] would price it at."

At the close of the Commonwealth's evidence, Glass’ counsel moved to strike the Commonwealth's evidence as to the felony count. Glass’ counsel argued that the cost of repair did not meet the statutory threshold because Decker included profits in his estimate. Without including a twenty percent profit, the total cost of repair fell below the $1,000 statutory threshold to approximately $986, barring the felony charge. Further, Glass’ counsel contended that Decker engaged in "self-dealing"³ by including profits in his estimate, which was not permitted in cases where the owner repaired the damage himself. The circuit court overruled Glass’ motion to strike and renewed motion to strike and convicted Glass of felony and misdemeanor property damage. Glass challenges only the felony count.

ANALYSIS

A. Standard of Review

For sufficiency of the evidence challenges, we review evidence "in the light most favorable to the prevailing party at trial and consider[ ] all inferences fairly deducible from that evidence." Clark v. Commonwealth , 279 Va. 636, 640, 691 S.E.2d 786 (2010) (quoting Jones v. Commonwealth , 276 Va. 121, 124, 661 S.E.2d 412 (2008) ). Further, we will affirm a trial court's decision "unless it is ‘plainly wrong or without evidence to support it.’ " Spratley v. Commonwealth , 298 Va. 187, 193, 836 S.E.2d 385 (2019) (quoting Commonwealth v. Perkins , 295 Va. 323, 327, 812 S.E.2d 212 (2018) ). A trial court's decision is not plainly wrong unless no rational trier of fact "could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting Sullivan v. Commonwealth , 280 Va. 672, 676, 701 S.E.2d 61 (2010) ). While we review a trial court's statutory construction of the phrase fair market cost of repair de novo , we review "with the highest degree of appellate deference" a trial court's factual findings as to the fair market cost of repair. Id. at 193-94, 836 S.E.2d 385 (quoting Bowman v. Commonwealth , 290 Va. 492, 496, 777 S.E.2d 851 (2015) ).

B. The Evidence Was Sufficient Because Fair Market Cost of Repair Includes Reasonable Profit

Pursuant to Code § 18.2-137(B), a defendant is guilty of a "Class 6 felony if the value of or damage to the property ... is $1,000 or more." The Commonwealth may establish the amount of loss "by proof of the fair market cost of repair or fair market replacement value." Code § 18.2-137(B).

Glass does not challenge that he intentionally caused the property damage. Instead, he contends the Commonwealth failed to establish that the damage to Decker's property reached the $1,000 threshold necessary to convict him of a felony. Glass’ assignment of error raises two key issues: (1) how this Court should interpret fair market cost of repair under Code § 18.2-137(B) and (2) whether any rational trier of fact could have found beyond a reasonable doubt that the damage to or value of the property was $1,000 or more.

1. Defining Fair Market Cost of Repair under Code § 18.2-137(B)

Defining fair market cost of repair under Code § 18.2-137(B) is an issue of first impression for this Court. The term "fair market cost of repair" is not used elsewhere in the Code of Virginia. Further, few cases discuss how to value property damage pursuant to Code § 18.2-137(B). See, e.g. , Crowder v. Commonwealth , 41 Va. App. 658, 664-65, 588 S.E.2d 384 (2003) (reversing a conviction when the owner failed to testify to the estimated value of his destroyed crops); Gilliam v. Commonwealth , No. 1254-12-1, slip op. at 10, 2014 WL 2187757 (Va. Ct. App. May 27, 2014) (holding the Commonwealth failed to prove beyond a reasonable doubt that the cost of repair was $1,000 or more when the only testimony regarding the cost was an inadmissible hearsay statement); Brown v. Commonwealth , No. 2825-07-1, slip op. at 11, 2009 WL 166936 (Va. Ct. App. Jan. 27, 2009) (reversing a conviction where the only testimony as to value was the owner's inadmissible hearsay statement of the repair estimate she received).

In fact, only one Virginia criminal case addresses how to calculate cost of repair, but it does so in the context of a different statute. See Cocke v. Commonwealth , 68 Va. App. 11, 15-16, 801 S.E.2d 427 (2017) (discussing "damage to property" under Code § 46.2-894 ).⁴

However, "fair market value" has been defined in Virginia caselaw for over 100 years. Seaboard Air Line Ry. v. Chamblin , 108 Va. 42, 46, 60 S.E. 727 (1908). In both the criminal and civil contexts, the Supreme Court of Virginia has repeatedly defined fair market value as "the price property will bring when offered for sale by a seller who desires but is not obliged to sell and bought by a buyer under no necessity of purchasing." See, e.g. , Robinson v. Commonwealth , 258 Va. 3, 5-6, 516 S.E.2d 475 (1999) (quoting Bd. of Supervisors v. Donatelli & Klein, Inc. , 228 Va. 620, 628, 325 S.E.2d 342 (1985) ); see also Byrum v. Commonwealth , No. 1201-09-1, slip op. at 3, 2010 WL 1956635 (Va. Ct. App. May 18, 2010) (noting an item's value "is the fair market value, mainly meaning the retail value" or sale price). Further, fair market value includes the prevailing profit in the trade. Rowland v. Kable , 174 Va. 343, 361, 6 S.E.2d 633 (1940) ("[T]he reasonable cost of the goods, all necessary and proper handling charges and the usual percentage of profit prevailing in the trade ... fix[ ] such value at the price the goods could have brought on a fair competitive market." (emphasis added)); see also Hofmann v. O'Brien , 367 F. App'x 439, 442 (4th Cir. 2010) (quoting Polar Bear Prods., Inc. v. Timex Corp. , 384 F.3d 700, 708 (9th Cir. 2004) ) (determining copyright damages based on loss in the fair market value, which is often calculated by the lost profits due to infringement).

The caselaw surrounding larceny convictions also supports defining fair market cost of repair to include profits. In determining the value of stolen property to establish whether the offense is grand or petit larceny, the Commonwealth may use price tags, purchase price, or retail value. See Robinson , 258 Va. at 10, 516 S.E.2d 475 (price tags); Parker v. Commonwealth , 254 Va. 118, 121, 489 S.E.2d 482 (1997) (purchase price); Byrum , No. 1201-09-1, slip op. at 3, 2010 WL 1956635 (retail price). Each of these pricing methods usually includes profit.

Glass argues the circuit court defined fair market cost of repair in two conflicting ways, that is, one amount excluding profit (Barnett's $60 window repair) and the other including profit (Decker's $1,165 estimate). This argument fails for two reasons.

First, the statute is permissive. Code § 18.2-137(B) states only that the "amount of loss ... may be established by proof of the fair market cost of repair." (Emphasis added). "[T]he word ‘may’ is prima facie permissive, importing discretion, but the courts construe it to be mandatory when it is necessary to accomplish the manifest purpose of the Legislature." Harper v. Va. Dep't of Tax'n , 250 Va. 184, 194, 462 S.E.2d 892 (1995) (quoting Caputo v. Holt , 217 Va. 302, 305 n.*, 228 S.E.2d 134 (1976) ). The section contains no language intimating that the word "may" is mandatory. Further, the exclusive use of fair market cost of repair or fair market replacement value is not necessary to fulfill the General Assembly's purpose. This section's purpose is to determine the class of the criminal offense, and accordingly, the...