FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE. John W. Brown, Judge.
A. Robinson Winn, Deputy Public Defender (Chesapeake Public Defender's Office, on brief), for appellant.
Elizabeth C. Kiernan, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Frank, Humphreys and Chafin
[63 Va.App. 291] ROBERT J. HUMPHREYS,
Yvonie Décor Charles (" Charles" ) was convicted at a bench trial in the Circuit Court of the City of Chesapeake (" trial court" ) of two counts of petit larceny third offense, in violation of Code § § 18.2-96 and 18.2-104. On appeal, Charles argues that the trial court erred in allowing the Commonwealth to amend the indictment from a charge of grand larceny to a charge of petit larceny third offense because the amendment changed the nature and character of the offense. She also argues that the evidence was insufficient to prove that she had the intent to steal.
[63 Va.App. 292] I. BACKGROUND
" In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial." Rushing v. Commonwealth, 284 Va. 270, 274, 726 S.E.2d 333, 335 (2012).
A. Theft from Dillard's
On August 29, 2011, Lisa Fowlkes (" Fowlkes" ), a security camera operator for
Dillard's department store, was watching the sales floor at Dillard's when she noticed Charles and her co-defendant, Arlene McCall (" McCall" ). Fowlkes saw Charles grab numerous boys' Polo shirts from one section in the store and place them on a shelf in another section of the store. McCall was carrying a Macy's shopping bag that appeared to have some items in it, but it was not full. After some time looking around the store separately, Charles and McCall reconvened. At that time, McCall held the Macy's shopping bag open while Charles placed the boys' Polo shirts in the bag. Fowlkes did not lose sight of Charles or McCall, and she was absolutely sure that Charles put the Polo shirts in the Macy's bag. The women left Dillard's together with the bag containing the Polo shirts; they did not stop at any cash registers or make any purchases after taking the items from the sales floor. McCall carried the Macy's bag out of the store. Fowlkes noted that the Macy's shopping bag was fuller upon the women's departure from the store than it was when they entered.
After Charles and McCall passed all points of purchase, loss prevention officer Jerry Morgan (" Morgan" ) proceeded to stop the two women. Charles charged Morgan and struck him in the chest twice with her forehead. He wrestled her to the ground. Charles finally agreed to comply with Morgan. After walking three feet towards Dillard's, Charles shoved Morgan in the chest and took off running. Morgan took her down again and waited for backup. The Polo shirts were removed [63 Va.App. 293] from the Macy's bag in the Dillard's loss prevention office. A receipt reflects that eight Polo shirts were in the bag and they cost $29.99 each.
B. Theft from Icing
On May 14, 2012, Veronica Bell (" Bell" ), an Icing store employee, noticed Charles looking around in the store and saw Charles put a pair of earrings inside of her bra. The earrings were long, and Bell could easily see them through Charles's revealing shirt. Charles left the store and entered the common area of the Chesapeake Square Mall without paying for the earrings. After struggling with the security guard, Charles was eventually detained.
C. Procedural History
On October 2, 2012, the grand jury indicted Charles for grand larceny, in violation of Code § 18.2-95, for the incident at the Dillard's store, and for petit larceny third offense, in violation of Code § § 18.2-96 and 18.2-104, for the incident at the Icing store. The trial on these two charges began on November 13, 2012. The Commonwealth introduced two of Charles's prior conviction orders showing larcenous offenses: a 1995 conviction order for ...