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Johnson v. Commonwealth

Court of Appeals of Virginia

December 17, 2013

RICHARD LEE JOHNSON, JR.
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Randall D. Smith, Judge.

Kathleen A. Ortiz, Public Defender (Office of the Public Defender, on brief), for appellant.

Victoria Johnson, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: Judges Humphreys, Beales and Huff Argued at Chesapeake, Virginia.

MEMORANDUM OPINION [*]

RANDOLPH A. BEALES, JUDGE.

Richard Lee Johnson, Jr. (appellant) appeals his conviction for grand larceny, in violation of Code § 18.2-95. Appellant argues that the trial court erred in finding that the Commonwealth introduced sufficient evidence for a grand larceny conviction. Specifically, appellant contends that the evidence was insufficient since the manhole covers that "he had possession of were indistinct and fungible goods, which could not be sufficiently proven to be property of Pam Joy [Realty]" and that there was no evidence that the manhole covers he possessed were actually stolen. We hold that the trial court did not err when it found that the Commonwealth had introduced evidence sufficient for a grand larceny conviction, and, accordingly, for the following reasons, we affirm appellant's conviction for grand larceny.

I. Background

We consider the evidence on appeal "'in the light most favorable to the Commonwealth, as we must since it was the prevailing party'" in the trial court. Beasley v. Commonwealth, 60 Va.App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)).

In this case, John Tillery, who worked for Pam Joy Realty as a property manager of Holly Point Shopping Plaza, testified that, sometime between December 1 and December 14 of 2011, he noticed that two manhole covers were missing from the Holly Point Shopping Plaza parking lot. John Tillery testified that somebody from Pam Joy Realty is on-site six days a week to clean and check the parking lot for signs of vandalism, including missing manhole covers, and that it was one of these Pam Joy Realty employees who brought the fact of the missing manhole covers to John Tillery's attention. In order to replace the two manhole covers, John Tillery purchased two new manhole covers -- each of which cost $125 -- from a business in Virginia Beach.

Shortly after replacing the two manhole covers, John Tillery received notice that three additional manhole covers were missing from Holly Point. Suspecting that somebody might be stealing manhole covers and taking them to a scrap metal yard, John Tillery and his son, Logan Tillery, went to Baldwin Auto Disposal (Baldwin), which is somewhere between three and five miles away from Holly Point Shopping Plaza. When John and Logan Tillery arrived at Baldwin, they noticed three manhole covers that appeared consistent with the three manhole covers that were missing from Holly Point Shopping Plaza. John Tillery did acknowledge that these three manhole covers did not bear any sort of marking or identification that would allow for easy identification of the manhole covers from Holly Point Shopping Plaza. In addition, Logan Tillery acknowledged that a manhole cover recovered from Baldwin could have fit other manholes in the City of Chesapeake. Nevertheless, when the Commonwealth asked John Tillery, "And are you able to say that the manhole covers that you recovered from Baldwin Auto were the ones that belonged on the Pam Joy Realty property, " John Tillery responded, "Yes." In addition, John Tillery testified that the manhole covers from Baldwin fit the manholes in Holly Point Shopping Plaza, and he also stated that he identified the manhole covers from Baldwin by their appearance, rectangular shape, and thickness. Logan Tillery also testified that the manhole covers from Baldwin were "an exact fit" and that he and John Tillery had "measured" the manhole covers.

Christie Perry, an employee at Baldwin, testified that Baldwin does not take manhole covers because "they're just too easy to take off the side of the street, " but that appellant did deliver "four or five" manhole covers on December 14, 2011. Perry testified that she was quite familiar with appellant, as he had been appearing at Baldwin "at least once a day or once every other day" for "a couple of months." Perry testified that, prior to December 14, 2011, appellant had not taken any manhole covers to Baldwin, but Perry did acknowledge that she was not present at Baldwin each time appellant came to Baldwin.

Perry testified that appellant's van was weighed on Baldwin's scale, that the metal inside the van was unloaded, and that appellant's van then was re-weighed. During the unloading process, according to Perry, the crane operator noticed that manhole covers were included in appellant's load of scrap. With the assistance of the crane operator, Perry set the manhole covers aside, photographed them, and then notified the police. Before leaving Baldwin, appellant stopped by Perry's desk, showed her his driver's license, and signed a form acknowledging that he was the sole owner of the property he dropped off and that he was bringing in the property "with permission to scrap." At trial, the Commonwealth presented a picture of appellant's driver's license and a picture of the vehicle that appellant drove to Baldwin on December 14, 2011. Perry testified that, from the time appellant entered Baldwin to the time Perry received notice from the crane operator that appellant had dropped off manhole covers, no other individuals were at Baldwin attempting to drop off metal.

Detective Satterfield of the Chesapeake Police Department testified that, after meeting with Perry, he met with John Tillery. According to Detective Satterfield, John Tillery told Detective Satterfield that all three manhole covers fit the uncovered manholes and that each manhole cover "was not interchangeable with the other" in terms of how each fit over the uncovered manholes. According to Detective Satterfield, when he went to Baldwin after Perry contacted him, and after the three manhole covers had been recovered from Baldwin, "there were two other manholes at [Baldwin] as well." Detective Satterfield testified that those two manhole covers looked similar to the three manhole covers John and Logan Tillery recovered from Baldwin, but that "Mr. Tillery said they were not his." Detective Satterfield also met with appellant. When Detective Satterfield ...


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