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Velez-Suarez v. Commonwealth

Court of Appeals of Virginia

January 27, 2015

FREDDY VELEZ-SUAREZ
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LOUDOUN COUNTY. Burke F. McCahill, Judge.

Bonnie H. Hoffman, Deputy Public Defender (Office of the Public Defender, on briefs), for appellant.

Susan Mozley Harris, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Kelsey, Alston and Senior Judge Bumgardner.

Page 716

[64 Va.App. 271] OPINION

ROSSIE D. ALSTON, JR., JUDGE

Freddy Velez-Suarez (appellant) appeals his convictions of conspiracy to commit grand larceny in violation of Code § § 18.2-23 and -95 and destruction of property in violation of Code § 18.2-137. On appeal, appellant argues that the trial court erred " in convicting [appellant] of conspiracy to commit grand larceny as the evidence was insufficient to establish [appellant] and Mr. Amaya had an agreement to engage in a pre-concerted criminal act" and " in convicting [appellant] of destruction of property as the evidence was insufficient . . . under a principle in the second degree or accomplice/co-conspirator theory to establish [appellant's] guilt for the cutting of the sensor tags found in Mr. Amaya's dressing room stall." We disagree and therefore affirm appellant's convictions.

I. Background

On January 20, 2012, appellant was arrested for shoplifting and conspiracy to commit larceny along with his co-conspirator, Edgar Amaya-Cuellar, at Dulles Town Center Mall in Sterling, Virginia, outside of a Lord & Taylor department [64 Va.App. 272] store. On April 9, 2012, appellant was indicted on charges of felony possession of burglarious tools with the intent to commit larceny in violation of Code § 18.2-94; felony conspiracy to commit larceny in violation of Code § § 18.2-23[1]

Page 717

and -95; petit larceny, second offense, in violation of Code § § 18.2-96 and -104; destruction of property valued less than $1,000 in violation of Code § 18.2-137; and preventing a law enforcement officer from lawfully arresting him in violation of Code § 18.2-479.1.

As this is a sufficiency of the evidence case, we review the facts before the trial court in their entirety in order to determine whether those facts supported appellant's convictions. At appellant's bench trial on July 27, 2012, Nicole Bramlett, a Lord & Taylor loss prevention officer testified for the Commonwealth. Ms. Bramlett testified that she first noticed appellant and Mr. Amaya-Cuellar because they were carrying shopping bags that did not belong to any of the stores at that mall and she began to follow them on camera.[2] She saw both men select merchandise, and then witnessed Mr. Amaya-Cuellar enter the fitting room first and appellant enter a bit later. The men were not in the fitting room for longer than five minutes. Mr. Amaya-Cuellar exited first, and appellant followed a bit later. After Mr. Amaya-Cuellar exited the fitting room and then the store, he sat outside the store on a bench, and loss prevention officers approached him. After a [64 Va.App. 273] physical confrontation with Mr. Amaya-Cuellar, including officers having to physically detain him until law enforcement officers arrived, loss prevention officers recovered property belonging to Lord & Taylor from him that was worth over $200.

Meanwhile, when appellant exited the fitting room, he continued to look at more clothing in the store. After looking around for a few more minutes, and while the officers " wrestled around with [Mr. Amaya-Cuellar] outside the store," as appellant exited the store and tried to walk around Ms. Bramlett, she witnessed appellant carrying a shopping bag with a black coat inside she had previously seen appellant handle while in the store. Ms. Bramlett then approached appellant and told him that he had stolen merchandise and asked him to come back to the office with her. Appellant said he needed to use the bathroom and that Ms. Bramlett did not have the right to stop him. Ms. Bramlett testified that she told appellant that he could not go to the bathroom but appellant went inside the bathroom of Lord & Taylor anyway. Loss prevention officers later recovered the black coat outside of the store without a security sensor on it. Ms. Bramlett testified that she could not recall if the specific black coat had a security sensor on it prior to the theft, but that usually those coats would have a security sensor on them. The black jacket retails for $119.99.

The evidence also revealed that while Ms. Bramlett monitored Mr. Amaya-Cuellar and appellant on surveillance camera until they exited the store with merchandise, her coworker Justin Wade, another loss prevention officer at Lord & Taylor, followed the men around the store and into the fitting room. Mr. Wade also testified for the Commonwealth and stated that he observed (and the video showed) appellant entering the fitting room area with some items he selected, including a shiny black coat. Mr. Wade entered the fitting room area while Mr. Amaya-Cuellar and appellant were in individual stalls with their merchandise. He heard Mr. Amaya-Cuellar and appellant talking in Spanish and could not understand what they were saying. After Mr. Amaya-Cuellar exited the [64 Va.App. 274] fitting room with no merchandise, Mr. Wade entered the stall Mr. Amaya-Cuellar had occupied and identified three missing items he previously saw Mr. Amaya-Cuellar holding. Appellant remained in his fitting room stall while Mr. ...


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