Goldman v. Commonwealth

74 Va.App. 556

871 S.E.2d 243

Aaron Jacob GOLDMAN

v.COMMONWEALTH of Virginia

Record No. 0208-21-1

Court of Appeals of Virginia.

APRIL 19, 2022

J. Barry McCracken, Assistant Public Defender, for appellant.

Justin B. Hill, Assistant Attorney General (Mark R. Herring,¹ Attorney General, on brief), for appellee.

Present: Judges Humphreys, Raphael and Callins

OPINION BY JUDGE DOMINIQUE A. CALLINS

Aaron Goldman appeals his conviction of grand larceny in violation of Code § 18.2-95. He argues that the evidence was insufficient to support his conviction because (1) the Commonwealth failed to prove that he was the criminal agent who committed the larceny, and (2) the Commonwealth failed to prove the value of the stolen goods was above $500 at the time of the theft. We hold that the evidence is insufficient to prove Goldman committed grand larceny and reverse the conviction.

I. BACKGROUND

In the fall of 2019, the Eastern Virginia Medical School in Norfolk hired S.B. Ballard Construction Company, a general contractor, to perform construction work. As part of its construction work, Ballard subcontracted with Hiller Systems to install a fire suppression system for the school. Hiller Systems’ subcontract assignments included a construction site referred to as "EVMS-EVAB."

On October 31, 2019, an individual stole tools from a large brown "job box" maintained on the EVMS-EVAB construction site. The tools were never recovered. The police later developed Goldman² as a suspect, and he was indicted on May 6, 2020.³

The Circuit Court for the City of Norfolk conducted a bench trial on September 24, 2020. At trial, the Commonwealth introduced a surveillance video ("EVMS video") that purported to show the theft. The video depicts an individual reaching into the job box, located off-screen, lifting tools from the job box, and putting the tools in a bag. The video does not capture which tools, or how many tools, were put in the bag. Goldman does not dispute that he is the individual in the video.⁴

As part of its case-in-chief, the Commonwealth called Lenzy Chambers, an employee of Ballard, to identify and authenticate the video.⁵ Chambers confirmed the location in the video as within the EVMS-EVAB construction site. He described the video as "old footage" depicting an "IT rack in the hallway as well as the S.B. Ballard Construction office," and "the side hallway leading back to the storage area where contractors work." He also testified that the date of the video was January 31, 2019, through the following exchange:

Q. So you were employed back on January 31st of 2019?

A. Correct, sir.

Q. On that date did you review an old footage from your job site?

A. I don't know if it was that day. I think it was the following date that I was requested to pull the footage.

....

Q. Does this video fairly and accurately depict the video that you pulled on that particular day?

A. Yes, sir.

Q. And you reviewed the video, and the video date is dated January 31st of 2019?

A. Yes, sir.

Chambers then explained that after viewing the video, he exported it to a thumb drive and "issued that [drive] to the project manager on site to be reviewed by anybody that was on site." Following Chambers's testimony, the trial court admitted the video into evidence as the "EVMS Security Tape." The video was submitted to the trial court as one of multiple digital files burned onto a DVD.

David Farmer, a field superintendent for Hiller Systems, also testified on behalf of the Commonwealth. He reviewed the EVMS video and confirmed the location of the off-screen job box. He identified as stolen several construction tools that were regularly maintained in the job box. He also testified that the stolen tools were last seen on October 31, 2019, and that they were purchased about a month before that date. He testified that the tools were in "good working condition" at the time of the theft. Farmer then affirmed the Commonwealth's evidence that he paid $1,733.81 to replace the stolen tools.

At the close of the Commonwealth's evidence, Goldman moved to strike. He argued that the evidence could not establish a prima facie case of theft because Chambers authenticated the EVMS video as a recording from January 31, 2019, and the indictment referred to a theft that occurred on October 31, 2019. In response, the Commonwealth asserted that "Mr. Chambers pulled this video and burned this copy for the file, and the video specifically states[,] ‘IT Rack Office Entrance 2019/10/31.’ " The trial judge considered,

[T]he Court recognizes there's some confusion regarding the date of the video, but the Court's going to find sufficient foundation was laid for an October 31st, 2019, date....

What I want to do is we'll set it down for a sentencing date, but to the extent the Court may end up finding him not guilty if the Court is not satisfied there's sufficient reference to the date, but I'm going to need to review the transcript for that.

The trial judge continued the case for briefing on whether the video could be tied to October 31, 2019.

At the next hearing, the trial court ruled that "there was some video evidence of the alleged theft[ ] and the defendant was identified ... as being the individual in the video." It found "that the surveillance video was reviewed several months later ... in January of 2020, and that the date of the video was not offered in evidence." Even so, the trial court reasoned, the Commonwealth was not required to prove, as an element of larceny, that the video was recorded on October 31, 2019. The trial court convicted Goldman of grand larceny and sentenced him to a period of incarceration. This appeal followed.

II. ANALYSIS

The issue before us concerns whether the Commonwealth presented sufficient evidence to establish that Goldman committed the alleged theft, and to establish the value of the stolen property as $500 or more. At the time of the theft, Code § 18.2-95(ii) provided that "[a]ny person who commits ... simple larceny not from the person of another of goods and chattels of the value of $500 or more ... [is] guilty of grand larceny."⁶ Larceny is "the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently." Carter v. Commonwealth , 280 Va. 100, 104-05, 694 S.E.2d 590 (2010) (quoting Skeeter v. Commonwealth , 217 Va. 722, 725, 232 S.E.2d 756 (1977) ).

At trial, the Commonwealth bears the burden to prove each element of the crime beyond a reasonable doubt. Kenner v. Commonwealth , 71 Va. App. 279, 295, 835 S.E.2d 107 (2019). Otherwise, "mere opportunity to commit an offense raises only ‘the suspicion that the defendant may have been the guilty agent; and suspicion is never enough to sustain a conviction.’ " Christian v. Commonwealth , 221 Va. 1078, 1082, 277 S.E.2d 205 (1981) (quoting Simmons v. Commonwealth , 208 Va. 778, 783, 160 S.E.2d 569 (1968) ).

"When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is presumed correct and will not be disturbed unless it is plainly wrong or without evidence to support it.’ " Smith v. Commonwealth , 296 Va. 450, 460, 821 S.E.2d 543 (2018) (quoting Commonwealth v. Perkins , 295 Va. 323, 327, 812 S.E.2d 212 (2018) ). "In conducting this review, the Court defers to the trial court's findings of fact unless they are plainly wrong or without evidence to support them." Green v. Commonwealth , 72 Va. App. 193, 200, 843 S.E.2d 389 (2020).

A. The evidence was insufficient to establish Goldman stole Farmer's tools.

Goldman does not dispute that someone stole tools from the EVMS-EVAB construction site on October 31, 2019. Rather, he contends the evidence fails to establish that he is the individual who stole the tools. As evidence of Goldman's criminal agency, the Commonwealth presented (1) a video of Goldman at the EVMS-EVAB construction site putting items from the job box into a bag and (2) Farmer's testimony that tools were taken from the same location on October 31, 2019, and never returned. Because the parties did not dispute that Goldman had permission to access the tools⁷ and the Commonwealth presented no other evidence tying the theft to Goldman, this circumstantial evidence was only sufficient for a conviction if the Commonwealth proved that the EVMS video depicts the theft of October 31, 2019.

Under the applicable standard of review, we regard as true all credible evidence favorable to the Commonwealth and all reasonable inferences drawn from that evidence. Id. Yet even in the most favorable light, the Commonwealth's evidence fails to establish a connection between Goldman and the theft of Farmer's tools on October 31, 2019. The EVMS video, which the Commonwealth relies on to establish Goldman's criminal agency and criminal conduct, fails to prove either.

1. The EVMS video as evidence of criminal agency

Generally, the date of a theft is not an essential element of grand larceny. See Farhoumand v. Commonwealth , 288 Va. 338, 351, 764 S.E.2d 95 (2014). In this case, however, the Commonwealth must prove the date of the theft is the date of the EVMS video because the video represents the single connection between proof of criminal agency and proof of the corpus delecti. The EVMS video is the sole evidence on which the Commonwealth relied to establish that Goldman stole Farmer's tools. Farmer testified that his tools were taken from the EVMS-EVAB construction site on October 31, 2019. The

[871 S.E.2d 274]

EVMS video shows Goldman removing items from a location on the EVMS-EVAB construction site. If the video is dated October 31, 2019, it tends to show Goldman as the criminal agent and supports a fact finder's conclusion to that end.

The Commonwealth argues that the EVMS video proves Goldman stole tools from the job box because "Chambers testified that he was ‘requested to pull the footage’ from the surveillance cameras from the day of the theft—October 31, 2019." This argument, at best,...