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Frango v. Commonwealth

Court of Appeals of Virginia

February 23, 2016

JAMES LEE FRANGO
v.
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CRAIG COUNTY. Malfourd W. Trumbo, Judge.

Reversed and remanded.

Seth C. Weston (Gilbert, Bird & Weston, P.C., on briefs), for appellant.

Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Chafin, O'Brien and Russell.

OPINION

Page 176

[66 Va.App. 38] WESLEY G. RUSSELL, JR. JUDGE

James Lee Frango, appellant, was convicted of grand larceny of timber in violation of Code § 55-334.1 and, for unrelated conduct, second offense misdemeanor petit larceny. On appeal, he argues that the evidence

Page 177

was insufficient to sustain the conviction for violation of Code § 55-334.1 because the Commonwealth failed to prove that the timber had any value, let alone that the timber was worth $200. He also contends the trial court erred in sentencing him to two years' incarceration on the second offense petit larceny conviction. For the following reasons, we reverse and remand both convictions for further proceedings.

BACKGROUND

Ricky Smith, appellant's next-door neighbor, testified that, sometime after March 8, 2015, he noticed several trees had been cut from his property. He prepared a list of the missing trees, fifteen oaks and three pines, and the Commonwealth submitted the list as Exhibit One at trial. Smith testified that a certified forester from Arrow Forestry came to his property to prepare a valuation report of the missing trees. The prosecutor asked that a copy of the report be submitted to the court, stating, " I'm going to submit [the report] to the Court upside down and not to be read into evidence at this point [66 Va.App. 39] [and] only if there's a determination of guilt or innocence will I, will I ask the Court to review this." Smith detailed his reasoning as to why appellant was the person who had taken the trees, including prior contacts with appellant and that the trees would have been removed from the site through appellant's property as opposed to through Smith's.

Deputy Paris Parson testified that he spoke with appellant by telephone. Appellant denied cutting the live trees on Smith's property, although he did admit to cutting some " dead snags" off Smith's land.

Appellant testified and denied cutting anything except " dead snags" from Smith's property at or near the time in question. After suggesting others who may have taken the trees, he noted that he believed that approximately eight oak trees had been removed from Smith's property. He estimated that the trees were thirty-feet tall. He said he could see the stand of trees from his house, but did not see anyone cut down the trees, cut them up or remove them.

He also testified that, on a prior occasion, he did cut and remove an oak tree from the stand of oak trees in question. He said it had fallen on a power line and that he had cut it into sections and used it as firewood.

At the close of the evidence, the court continued the matter, indicating the court would hear from any additional defense witnesses when the court reconvened. Upon return, and at the conclusion of additional testimony, appellant moved the court to strike the Commonwealth's evidence, arguing that the Commonwealth never offered the forester's report into evidence, and therefore, failed to prove value. Based on the court's own notes and the number of trees removed, the court overruled the motion and found appellant guilty of grand larceny, sentencing him to two years of incarceration on the charge.[1] Appellant filed a motion to reconsider, arguing that the Commonwealth failed to prove value. Upon further argument [66 Va.App. 40] of counsel and review of transcripts, the trial court denied the motion, explaining:

[I]n fact what would happen then is if there was sufficient evidence to convict of a larceny without having any value then it was agreed upon by the parties that in fact if there was sufficient evidence to convict as larceny then the Court would review the report of the person, the forestry person who did the evaluation, match it up with Exhibit One with the number of trees to place a value on it. And that being the case then that would be the determination of whether or not it would be petit larceny or grand larceny because in fact the number of trees, the description of the trees had already been introduced into evidence, it was only the function of whether or not, as agreed upon by the parties, it would be petit or grand larceny.

In a separate matter, the court convicted appellant of second offense petit larceny. The court sentenced appellant to a term of incarceration of two years for this offense. ...


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