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COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Clements and Kelsey
Argued at Salem, Virginia
Record No. 2423-02-3
RICHARD D. CROWDER, II
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
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
Q. It’s been alleged that the damage to your property was in
amount of $2,000.00.
Judge, he’s going to have to question — put that in the form
question. I — I think he just needs to ask him a question
value, not suggest what the answer is.
Your Honor, the indictment read that the amount of damage was
I understand that. Go ahead.
Q. How — how did you arrive at the amount of damage that was
to your property, sir?
A. Well, I figured — I had two — three other farmers there
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
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 ?
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).
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).
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,
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
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).
For this reason, we reverse
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
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").
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.
factfinder acted unreasonably, we consider it our duty not to "substitute
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.
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).
As we recently
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
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
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
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.").
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.
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,
("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.").