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MERCER v. COMMONWEALTH OF VA


MERCER

v.

COMMONWEALTH OF VA


MARCH 23, 1999
Record No. 2663-97-1

JESSIE LAMONT MERCER, A/K/A TONY HORICE DAVIS

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA
BEACH

Robert B. Cromwell, Jr., Judge
Argued at Norfolk, Virginia
Present: Judge Bray, Senior Judges Baker and
Overton
[1]
OPINION BY JUDGE JOSEPH E. BAKER
Asha S. Pandya, Assistant Public Defender
(Lynndolyn T. Mitchell, Senior Assistant Public Defender; Office
of the Public Defender, on brief), for appellant.

Marla Graff Decker, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.


Jessie Lamont Mercer, also known as Tony Horice
Davis, (appellant) appeals from his conviction by the Circuit
Court of the City of Virginia Beach (trial court) for violating
Code Sect. 18.2-94. The sole issue presented is whether the
evidence was sufficient to find him guilty of that offense.
Finding the evidence sufficient, we affirm the judgment of the
trial court.

Under familiar principles of appellate review,
we examine the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. See Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a
trial court will be disturbed only if plainly wrong or without
evidence to support it. See id. The inferences to
be drawn from proven facts are matters solely for the fact
finder’s determination. See Hancock v.
Commonwealth
, 12 Va. App. 774, 782, 407 S.E.2d 301, 306
(1991).

Viewed accordingly, the record discloses that
on May 30, 1997, Richard Lafarr observed appellant enter the
grocery store where Lafarr worked. Appellant proceeded down an
aisle in the store and looked around nervously. Lafarr, who was
watching appellant via a closed circuit television monitor, saw
appellant pick up an item and place it in his left pants pocket.
Lafarr saw the item slide down appellant’s pants leg to his
ankle. Appellant repeated this action with a second item, and
again Lafarr saw it fall down to the bottom of appellant’s
pants leg, without falling to the floor.

Store employees subsequently took appellant
into custody and recovered two six-inch by three-inch boxes of
Nicorette gum from appellant’s pants leg. The gum was valued
at $110. Appellant had no identification and no means to pay for
the gum. He was wearing baggy camouflage pants, and Lafarr noted
that appellant’s left pants pocket was slit, allowing items
to fall through the pocket into the pants leg, all the way to his
ankle. The pants had drawstrings at the cuffs that prevented the
items from falling out of the pants and onto the floor. Appellant
presented no evidence in his own behalf.

The Commonwealth charged appellant with
violating Code Sect. 18.2-94 by possessing "certain
tools, implements, or outfit with the intent to utilize them to
commit burglary, robbery, or larceny." Code
Sect. 18.2-94 provides:

If any person have in his possession
any tools, implements or outfit, with intent to commit
burglary, robbery or larceny, upon conviction thereof, he
shall be guilty of a Class 5 felony. The possession of
such burglarious tools, implements or outfit by any
person other than a licensed dealer, shall be prima facie
evidence of an intent to commit burglary, robbery or
larceny.

The Commonwealth contends that the baggy pants
with the slit pocket and drawstring at appellant’s ankle
area permitted the fact finder to reasonably infer that the pants
were prepared and worn into the store for the intended purpose to
commit larceny and, as such, constituted an "outfit"
under Code Sect. 18.2-94. Appellant contends that because
pants are not commonly used to break into a structure, they were
not intended by the legislature to constitute an
"outfit." We disagree.

The term "outfit" is not defined in
Code Sect. 18.2-94 or elsewhere in the Code.
"Generally, the words and phrases used in a statute should
be given their ordinary and usually accepted meaning unless a
different intention is fairly manifest." Woolfolk v.
Commonwealth
, 18 Va. App. 840, 847, 447 S.E.2d 530, 534
(1994). The commonly accepted definitions for the word
"outfit" include (1) the act or process of fitting out
or equipping, (2) materials, tools, or implements comprising the
equipment necessary for carrying out a particular project, and
(3) wearing apparel designed to be worn on a special occasion or
in a particular situation. See Webster’s Third New
International Dictionary
1601 (1993).

The judgment of a trial court will be disturbed
only if plainly wrong or without evidence to support it. See
Martin, 4 Va. App. at 443, 358 S.E.2d at 418. The
inferences to be drawn from proven facts are matters solely for
the fact finder’s determination. See Long v.
Commonwealth
, 8 Va. App. 194, 199, 379 S.E.2d 473, 476
(1989).

In Moss v. Commonwealth, 29 Va. App. 1,
509 S.E.2d 510 (1999), we rejected the defendant’s assertion
that Code Sect. 18.2-94 only proscribed the possession of
tools or implements used to commit burglary, noting that the
statute "criminalizes possession of ‘tools, implements, or
outfit’ with the intent to commit any one of three offenses,
burglary, robbery or larceny." See id. at 3
n.1, 509 S.E.2d at 511 n.1 (quoting Code Sect. 18.2-94).
"Code Sect. 18.2-94 requires proof that the offending
tools, implements or outfit were intrinsically ‘burglarious’ only
when the Commonwealth relies upon the statutory presumption to
establish the requisite criminal intent." Id. at 4-5,
509 S.E.2d at 512. A defendant is still subject to conviction
under the statute if the Commonwealth can prove, independent of
the statutory presumption, that the defendant possessed a
non-burglarious tool, implement, or outfit with the intent to
commit larceny. See id. at 4, 509 S.E.2d at 511.

An item of clothing that is altered to
facilitate shoplifting can reasonably be considered wearing
apparel designed to be worn in a particular situation. See
Webster’s Third New International Dictionary at 1601.
We hold, therefore, that a pair of pants can constitute an
"outfit" as that term is used in Code
Sect. 18.2-94. A pair of pants is not necessarily
"burglarious," that is, it is not an item commonly used
to break into a structure. For that reason, to convict appellant
under Code Sect. 18.2-94, the Commonwealth was required to
prove that appellant possessed these pants with the intent to use
them to commit larceny. See Moss, 29 Va. App. at 4,
509 S.E.2d at 511.

"Because direct proof of intent is often
impossible, it must be shown by circumstantial evidence." Servis
v. Commonwealth
, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988). "Circumstantial evidence is as competent and is
entitled to as much weight as direct evidence, provided it is
sufficiently convincing to exclude every reasonable hypothesis
except that of guilt." Coleman v. Commonwealth, 226
Va. 31, 53, 307 S.E.2d 864, 876 (1983). But "[t]he
Commonwealth need only exclude reasonable hypotheses of innocence
that flow from the evidence, not those that spring from the
imagination of the defendant." Hamilton v. Commonwealth,
16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). "Whether a
hypothesis of innocence is reasonable is a question of
fact." Herrel v. Commonwealth, 28 Va. App. 579, 587,
507 S.E.2d 633, 637 (1998).

All the tools, implements or outfits included
in Code Sect. 18.2-94 may be, and usually are, designed and
manufactured for a lawful purpose. Mere possession thereof is not
a crime. Burnette v. Commonwealth, 194 Va. 785, 790, 75
S.E.2d 482, 485-86 (1953). It has been held, and Code
Sect. 18.2-94 provides, that possession "shall be prima
facie evidence of an intent to commit burglary, robbery or
larceny." Nance v. Commonwealth, 203 Va. 428, 429,
124 S.E.2d 900, 901 (1962) (citation omitted).

When viewed in its entirety, the record here
discloses sufficient evidence to support the finding that
appellant wore the baggy pants with the slit pocket and tied-off
cuffs to facilitate his attempted shoplifting. The record shows
that appellant entered the grocery store with no money or other
means on his person to pay for the gum and that he looked about
in a suspicious manner. He then placed two packs of Nicorette
gum, valued at $110, into the specially prepared pocket, which
allowed the gum packages to drop through the pocket down to the
tied-off cuff of his pants, but not onto the floor. From the
foregoing facts, the record supports the trial court’s
judgment that the baggy pants with the slit pocket and tied-off
cuffs constituted an "outfit" that was possessed by
appellant with the intent to be used to commit larceny.

For the reasons stated, we affirm the judgment
of the trial court.

Affirmed.

 

FOOTNOTES:

[1] Judge Overton
participated in the hearing and decision of this case prior to
the effective date of his retirement on January 31, 1999, and
thereafter by his designation as a senior judge pursuant to Code
Sect. 17.1-401, recodifying Code Sect. 17-116.01:1.

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