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CROWDER v. COMMONWEALTH




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CROWDER

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Clements and Kelsey

Argued at Salem, Virginia

Record No. 2423-02-3

RICHARD D. CROWDER, II

v.

COMMONWEALTH OF VIRGINIA

 

OPINION BY JUDGE D. ARTHUR KELSEY

NOVEMBER 12, 2003

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY

Thomas H. Wood, Judge

Frankie C. Coyner for appellant.

Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,

Attorney General, on brief), for appellee.

The trial court found the appellant, Richard D. Crowder, II,
guilty of felony destruction of

property valued in excess of $1,000 under Code ?
18.2-137(B)(ii). On appeal, Crowder contends

that no evidence proved that the value of the property destroyed
exceeded $1,000. Agreeing with

Crowder, we reverse the felony conviction and remand the case
for retrial, if the Commonwealth is

so advised, on the lesser-included offense of misdemeanor
destruction of property under Code

? 18.2-137(B)(i).

I.

When examining a challenge to the sufficiency of the evidence on
appeal, "the evidence

and all reasonable inferences flowing therefrom must be viewed
in the light most favorable to the

prevailing party in the trial court." Commonwealth v.
Hudson, 265 Va. 505, 514, 578 S.E.2d

781, 786 (2003) (citations omitted). That principle requires us
to "discard the evidence of the

accused in conflict with that of the Commonwealth, and regard as
true all the credible evidence

favorable to the Commonwealth and all fair inferences that may
be drawn therefrom." Craddock

v. Commonwealth, 40 Va. App. 539, 542-43, 580 S.E.2d 454, 456
(2003) (citations omitted).

On June 16, 2001, Crowder drove his brother’s new Chevrolet
ZR2 pickup truck to a

party in Augusta County. After spending some time at the party,
Crowder asked an

acquaintance, Brian Thomas, if he would like to go for a ride in
the new truck. Thomas agreed

and the two men, with Crowder driving, proceeded to a nearby
field that was leased by Neil

Cash. Cash raised barley in the field and, at the time Crowder
drove into it, the barley was

"within eight to ten days of being ready to harvest."
Upon entering the field, Crowder "drove

through" and "did donuts" in the crops. The
truck, according to Cash, "just shattered the barley

all over the ground" and left ruts in the ground.

Cash’s son, Joshua Cash, saw the truck driving in the field
and drove his truck over to

confront Crowder. Thomas and Crowder, seeing Joshua Cash
approaching, departed from the

field by "jumping a bank" onto the highway. Joshua
Cash, however, obtained the license plate

number from the truck and reported the incident to the sheriff.

Deputies subsequently arrested Crowder, and a grand jury
indicted him for feloniously

causing damage "in excess of $1000.00 to property belonging
to Neil Cash, in violation of

Virginia Code Section 18.2-137."

During the bench trial, the Commonwealth called Neil Cash to
testify regarding the

damage to the property. On direct examination, the following
colloquy occurred:

Q. It’s been alleged that the damage to your property was in
the

amount of $2,000.00.

MR. GARNETT:

Judge, he’s going to have to question — put that in the form
of a

question. I — I think he just needs to ask him a question
about the

value, not suggest what the answer is.

MR. SMITH:

Your Honor, the indictment read that the amount of damage was

$2,000.00.

COURT:

I understand that. Go ahead.

Q. How — how did you arrive at the amount of damage that was
done

to your property, sir?

A. Well, I figured — I had two — three other farmers there
to come

and give me an estimate on what they thought the property damage

was. That’s taking into consideration plowing, working the

ground, re-seeding. I put down grass seed. Now I’m going to
have

to go back and do it over because of the ruts and stuff in it.

At the conclusion of the Commonwealth’s case in chief, Crowder
moved to strike the

evidence on the ground that the Commonwealth had not proved the
"value of the crops." The

Commonwealth responded that Cash "had three independent
estimates made by three other

farmers who all are aware of value [sic] of barley" and
that "the value is based on fair market

value," which Cash and the three other farmers "are
capable" of estimating. Crowder objected

and argued that these were facts not in evidence because Cash
never testified to the fair market

value of the damaged crops as of the date of the incident. Nor
did Cash adopt, Crowder

contended, the $2,000 figure mistakenly cited by the prosecutor
as the amount of damage alleged

by the grand jury in the indictment.

The trial court overruled the motion to strike. After neither
party submitted further

evidence regarding the value of the barley, Crowder asked the
Court to "incorporate" in his

"closing arguments the comments that I made previously
about the fair market value of the . . .

crop." The trial court again overruled the motion to strike
and found Crowder guilty of felony

destruction of property valued in excess of $1,000 under Code ?
18.2-137(B)(ii).

II.

When faced with a challenge to the sufficiency of the evidence,
we "presume the

judgment of the trial court to be correct" and reverse only
if the trial court’s decision is "plainly

wrong or without evidence" to support it. Kelly v.
Commonwealth, 41 Va. App. 250, 257, 584

S.E.2d 444, 447 (2003) (en banc) (citations omitted); see
also McGee v. Commonwealth, 25 Va.

App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc).
When a jury decides the case, Code

? 8.01-680 requires that "we review the jury’s decision
to see if reasonable jurors could have

made the choices that the jury did make. We let the decision
stand unless we conclude no

rational juror could have reached that decision." Pease v.
Commonwealth, 39 Va. App. 342,

355, 573 S.E.2d 272, 278 (2002) (en banc), aff’d, 2003
Va. LEXIS 95 (Va. Oct. 31, 2003) (per

curiam). The same standard applies when a trial judge sits as
the factfinder because the

"judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict."

Cairns v. Commonwealth, 40 Va. App. 271, 293, 579 S.E.2d 340,
351 (2003) (citation omitted);

see also Shackleford v. Commonwealth, 262 Va. 196, 209, 547
S.E.2d 899, 906-07 (2001).[1]

Put another way, a reviewing court does not "ask itself
whether it believes that the

evidence at the trial established guilt beyond a reasonable
doubt." Jackson v. Virginia, 443 U.S.

307, 318-19 (1979) (emphasis in original and citation omitted).
We must instead ask whether

"any rational trier of fact could have found the
essential elements of the crime beyond a

reasonable doubt." Kelly, 41 Va. App. at 257, 584 S.E.2d at
447 (quoting Jackson, 443 U.S. at

319 (emphasis in original)); see also Hoambrecker v.
Commonwealth, 13 Va. App. 511, 514, 412

S.E.2d 729, 731 (1992) (observing that the question on appeal is
whether "a rational trier of fact

could have found the essential elements" of the convicted
offense). "This familiar standard gives

full play to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to

weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts." Kelly,

41 Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443
U.S. at 319).[2]

Governed by this standard of review, we find that no rational
factfinder could have found

beyond a reasonable doubt that the Commonwealth proved the
$1,000 threshold value element of

the felony destruction of property charge under Code ?
18.2-137(B)(ii). Though we agree with

the Commonwealth that Cash, as the owner of the damaged crop,
could have given an admissible

lay opinion on its value, Lester v. Commonwealth, 30 Va. App.
495, 504-05, 518 S.E.2d 318,

322 (1999),[3]
the fact is, he never did.

At trial, the prosecutor took the position that his interrupted
attempt at a leading question

on direct examination ("It’s been alleged that the damage
to your property was in the amount of

$2,000."), coupled with his mistaken description of the
indictment ("Your Honor, the indictment

read that the amount of damage was $2,000.00."), somehow
established $2,000 as the damage

estimate. Suffice it to say, however, counsel cannot testify[4]
and indictments are not evidence.[5]

True, admissible or not, the prosecutor’s comments about the
$2,000 figure could have

been adopted by Cash in his testimony absent a valid objection.
Cash, however, was never asked

if he agreed with the $2,000 figure. The only question asked of
Cash was "How — how did you

arrive at the amount of damage that was done to your property,
sir?" His elliptic reply was that

he had obtained estimates from two or three other farmers. Cash
never said what those estimates

were. Nor did Cash say whether those estimates confirmed the
$1,000 allegation of the

indictment or the $2,000 figure erroneously attributed by the
prosecutor to the indictment.

By his silence, Cash may have implicitly agreed with the $2,000
figure. But to accept

this supposition as a substitute for evidence, in our judgment,
pushes the concept of reasonable

inferences into the realm of non sequitur. An inference
"permits a finder of fact to conclude the

existence of one fact from the proof of one or more other
facts." Carfagno v. Commonwealth, 39

Va. App. 718, 727, 576 S.E.2d 765, 769 (2003) (citations and
quotation marks omitted). It

allows a factfinder to reason "from basic facts to ultimate
facts." Kelly, 41 Va. App. at 257-58,

584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319). Properly
used, however, an inference may

only extend a syllogism — not begin one.

In short, from the record before us, no rational factfinder
could conclude that the

evidence proved beyond a reasonable doubt that the damage to
Cash’s crop exceeded the $1,000

required for a felony conviction under Code ? 18.2-137(B)(ii).[6]
For this reason, we reverse

Crowder’s conviction.

That said, we disagree with Crowder’s assertion that a
reversal precludes further

proceedings against him. The trial court in this case
specifically found that Cash’s crop

sustained economic damage. Though we find no testimony measuring
that damage in excess of

$1,000, Cash clearly testified that some measurable damage
occurred to the crop. Thus, the

Commonwealth made a sufficient showing for a misdemeanor
conviction for the lesser-included

charge of intentional property damage under Code ?
18.2-137(B)(i), which requires no threshold

damage value.

When an appellant successfully challenges the sufficiency of the
evidence on some (but

not all) aspects of his conviction, we must determine if the
proven elements of the original

charge qualify as a lesser-included offense. If so, the
appropriate remedy on appeal is a reversal

of the conviction on the greater charge and a remand of the
lesser charge for retrial — assuming

the Commonwealth, in its prosecutorial discretion, chooses to go
forward on the lesser charge.

See generally Gorham v. Commonwealth, 15 Va. App. 673, 678, 426
S.E.2d 493, 496 (1993)

(observing that the "consistent practice in Virginia, when
the evidence is found insufficient to

sustain a felony conviction on appeal, but sufficient to sustain
a conviction on a lesser-included

misdemeanor offense, has been to remand the case for retrial on
the lesser-included offense").[7]

III.

Finding the evidence insufficient to establish the statutory
$1,000 threshold, we reverse

Crowder’s conviction for felony destruction of property under
Code ? 18.2-137(B)(ii). Because

the evidence sufficiently establishes every element of the
lesser-included offense of

misdemeanor destruction of property under Code ?
18.2-137(B)(i), we remand this matter for

retrial if the Commonwealth be so advised.

Reversed and remanded.

 

FOOTNOTES:

[1]Unless the
factfinder acted unreasonably, we consider it our duty not to "substitute
our

judgment for that of the trier of fact," Kelly, 41 Va. App.
at 257, 584 S.E.2d at 447 (citation

omitted), "even were our opinion to differ," Wactor v.
Commonwealth, 38 Va. App. 375, 380,

564 S.E.2d 160, 162 (2002) (citation omitted); see also Mohajer
v. Commonwealth, 40 Va. App.

312, 321, 579 S.E.2d 359, 364 (2003) (en banc); Pease, 39
Va. App. at 355, 573 S.E.2d at 278.

 

[2]This deference
applies not only to the historical facts themselves, but the inferences

from those facts as well. "The inferences to be drawn from
proven facts, so long as they are

reasonable, are within the province of the trier of fact."
Hancock v. Commonwealth, 12 Va.

App. 774, 782, 407 S.E.2d 301, 306 (1991).

 

[3]As we recently
explained:

It is generally recognized that the opinion testimony of the
owner of property,

because of his relationship as owner, is competent and
admissible on the question

of the value of such property, regardless of his knowledge of
property values. It

is not necessary to show that he was acquainted with the market
value of such

property or that he is an expert on values. He is deemed
qualified by reason of his

relationship as owner to give estimates of the value of what he
owns.

King v. King, 40 Va. App. 200, 212-13, 578 S.E.2d 806, 813
(2003) (quoting Haynes, Executrix

v. Glenn, 197 Va. 746, 750, 91 S.E.2d 433, 436 (1956)); see also
Snyder Plaza Prop., Inc. v.

Adams Outdoor Ad., Inc., 259 Va. 635, 644, 528 S.E.2d 452, 458
(2000) ("We have recognized

the general rule that an owner of property is competent and
qualified to render a lay opinion

regarding the value of that property."); Parker v.
Commonwealth, 254 Va. 118, 121, 489 S.E.2d

482, 483 (1997) ("The opinion testimony of the owner of the
stolen item generally is competent

and admissible on the issue of the value of that
property.").

 

[4]See
Commonwealth v. Sluss, 14 Va. App. 601, 607, 419 S.E.2d 263, 267 (1992)

("Representations by counsel are not evidence that a court
may properly consider."); Graves v.

Graves, 4 Va. App. 326, 332, 357 S.E.2d 554, 558 (1987)
("Mere representations by counsel are

not evidence.").

 

[5]See Swift v.
Commonwealth, 199 Va. 420, 425, 100 S.E.2d 9, 13 (1957) ("It is

elementary that the issuance of a warrant or the return of an
indictment by a grand jury is not

evidence of the guilt of the accused.").

 

[6]The
Commonwealth contends that Crowder waived this argument under Rule 5A:18

because he did not specifically object that the Commonwealth
"never established a particular

figure for the valuation . . . ." We disagree. Crowder
objected to the Commonwealth’s leading

question regarding the quantum of damage, stating: "Judge,
he’s going to have to question — put

that in the form of a question. I — I think he just needs to
ask him a question about the value,

not suggest what the answer is." Later, during his motion
to strike, Crowder argued that "the

Commonwealth has not adequately demonstrated the fair market
value of whatever they’re

talking about here — a barley field, on the date that this
gentleman is — the date that they’re

talking about." At the end of the trial, Crowder renewed
his motion to strike, asking the court to

"incorporate in my closing arguments the comments that I
made previously about the fair market

value of the — of the crop." Thus we find that Crowder
properly preserved this issue for appeal.

 

[7]See, e.g.,
Jones v. Commonwealth, 39 Va. App. 545, 549, 574 S.E.2d 767, 768 (2003)

("Accordingly, we reverse the convictions for robbery and
use of a firearm in the commission of

robbery, and we remand for a new trial for larceny if the
Commonwealth be so advised.");

Woodard v. Commonwealth, 27 Va. App. 405, 410, 499 S.E.2d 557,
559-60 (1998)

("Accordingly, we reverse the conviction and remand the
case for a new trial for assault and

battery, if the Commonwealth be so advised."); Johnson v.
Commonwealth, 5 Va. App. 529, 535,

365 S.E.2d 237, 240 (1988) ("Accordingly, we reverse and
vacate the conviction for aggravated

sexual battery and remand this case to the trial court for a new
trial for assault and battery if the

Commonwealth be so advised.").


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