COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Willis and Annunziata

Argued at Chesapeake, Virginia

MICHAEL CRAIG POWELL

OPINION BY

v. Record No. 0026-99-1 CHIEF JUDGE JOHANNA L. FITZPATRICK

DECEMBER 14, 1999

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG

AND COUNTY OF JAMES CITY

Samuel T. Powell, III, Judge

Greg H. Dohrman (Knicely & Cotorceanu, on

brief), for appellant.

Richard B. Smith, Assistant Attorney General

(Mark L. Earley, Attorney General, on brief),

for appellee.

Michael Craig Powell (appellant) was indicted by a grand

jury for one count of grand larceny, in violation of Code

18.2-95. At the conclusion of the Commonwealth's evidence,

the trial court struck the grand larceny charge but allowed the

case to proceed on a charge of accessory after the fact to a

grand larceny, a violation of Code 18.2-19. On appeal,

appellant contends the trial court erred in finding the evidence

sufficient to prove that he was an accessory after the fact to a

grand larceny. For the following reasons, we reverse and

dismiss.

I.

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

the prevailing party below, granting to it all reasonable

inferences fairly deducible therefrom. See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

So viewed, the evidence established that on May 10, 1998,

appellant was working at the "Toss-A-Ball" game booth at Busch

Gardens in Williamsburg, Virginia. Sergeant David Smith

(Smith), an undercover security officer at Busch Gardens, gave

appellant a marked $100 bill to play his game. Smith correctly

received $96 in change.

When questioned by security personnel whether he had a $100

bill, appellant first stated that he had cashed it with his

supervisor. Later that day, appellant admitted to Smith that he

"had not been honest about the one hundred dollar bill and he

did not give it to [his supervisor]." Appellant told Smith that

he had given the $100 bill to another employee named Kenny

Lambert (Lambert). At trial, Smith testified as follows:

He also told me that Kenny was stealing lots

of money from Busch Gardens and that Kenny

had stolen between [$]120 to $200 just

today, and that Kenny had asked [appellant]

. . . to change the one hundred dollar bill

out so that Kenny could seal [sic] the money

-- conceal the money more easily.

Lambert was working the "Toss-A-Ball" game with appellant on May

10, 1998. The marked $100 bill was never found.

At the conclusion of the Commonwealth's evidence, the trial

court struck the grand larceny charge but allowed the case to

proceed on a charge of accessory after the fact to a grand

larceny committed by Lambert. The trial court ruled as follows:

However, the testimony from Sergeant

Smith was that [appellant] knew that Kenny,

whoever he is, was stealing the money and

that [appellant] changed the hundred dollar

bill for Kenny so that it would be easier

for Kenny to get the money out of Busch

Gardens. That is an accessory after the

fact.

* * * * * * *

I'm going to strike the Commonwealth's

evidence with regard to the grand larceny

embezzlement . . . and we'll have the

accessory after the fact to continue.

In his defense, appellant presented the testimony of

Charles Petty (Petty), an ex-employee of Busch Gardens, who

stated that it was very common for employees to change a $100

bill with other employees. Petty also testified that he knew

Lambert was taking "a lot" of money from Busch Gardens but was

not sure how much money he had taken.

At the conclusion of all the evidence, the trial court

found appellant guilty of being an accessory after the fact to a

grand larceny, stating the following:

From [appellant's] statement, I think

it's reasonably fair for the Court to infer

that he knew his friend was embezzling the

money. He gives [Lambert] a hundred dollars

and his statement to the officer, which is

unrefuted, is he gave it to him because it

would be easier to get the money out of the

-- out of Busch Gardens. That's aiding and

abetting and assisting -- providing

assistance to a person who is committing a

crime and he is providing him with aid and

comfort.

Accordingly, the trial court convicted appellant of being an

accessory after the fact to a grand larceny, in violation of

Code 18.2-19.

II.

Appellant argues that the evidence was insufficient to

establish that he committed the crime of being an accessory

after the fact to a grand larceny. First, he contends that the

evidence was insufficient to establish that the underlying crime

had been committed. There was no evidence that Busch Gardens

lost any money on May 10, 1998, or that Kenny Lambert's till was

"short" that day. Although appellant stated that he thought

Kenny Lambert had taken "between [$]120 to $200" from Busch

Gardens, no corroborating evidence that the offense of grand

larceny had been committed was introduced. We agree.

The Commonwealth must establish the following three

elements to convict appellant of being an accessory after the

fact: "that the defendant: (1) 'receive[d], relieve[d],

comfort[ed], or assist[ed]' a felon (2) after knowing that the

felon was guilty of committing a completed felony and (3) that

the felony was, in fact, completed." Dalton v. Commonwealth, 29

Va. App. 316, 326, 512 S.E.2d 142, 146-47 (1999) (en banc)

(quoting Manley v. Commonwealth, 222 Va. 642, 644, 283 S.E.2d

207, 208 (1981)). "By definition, a person cannot be an

accessory without the existence of a principal offender.

Although conviction of the principal is not a condition

precedent to conviction of an accessory, conviction of an

accessory requires proof that the crime has been committed by a

principal." Redman v. Commonwealth, 25 Va. App. 215, 218, 487

S.E.2d 269, 271 (1997) (citations omitted); see also Sheppard v.

Commonwealth, 250 Va. 379, 393, 464 S.E.2d 131, 140 (1995)

(noting that "the felony must be completed" to prove that the

accused was an accessory after the fact).

In the instant case, the evidence was sufficient to prove

the first element of the accessory offense. Appellant knew that

Lambert was stealing money from Busch Gardens, and he assisted

and aided Lambert in concealing that money. However, the

Commonwealth failed to prove the remaining two elements because

the evidence was insufficient to establish that Lambert

committed a larceny of $200 or more.

Grand larceny consists of the theft, not from the person of

another, of goods and chattels valued at $200 or more. See Code

18.2-95(ii). "This statutorily specified amount is an

essential element of the offense, and the burden is on the

Commonwealth to establish that element by proof beyond a

reasonable doubt." Robinson v. Commonwealth, 258 Va. 3, 5, 516

S.E.2d 475, 476 (1999). "Proof that an article has some value

is sufficient to warrant a conviction of petit larceny, but

where the value of the thing stolen determines the grade of the

offense, the value must be alleged and the Commonwealth must

prove the value to be the statutory amount." Id. (citing Wright

v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954)).

Appellant's statement that "Kenny was stealing lots of

money from Busch Gardens and that Kenny had stolen between

[$]120 to $200 just today" provides only a range of values,

including an amount less than the statutorily required $200.

Put simply, the Commonwealth failed to prove beyond a reasonable

doubt the statutorily specified amount, which is an essential

element of the offense. Nonetheless, the Commonwealth contends

that, taken in the light most favorable to the Commonwealth,

appellant's statement that Lambert "had stolen between [$]120 to

$200" was sufficient to establish the requisite $200 value and

that we are bound by this reasonable inference. Appellant's

statement, however, established only a range of possible values

and does not constitute proof beyond a reasonable doubt that a

theft of $200 occurred. Additionally, although Petty, an

ex-employee of Busch Gardens, testified that he knew Lambert was

taking "a lot" of money from Busch Gardens, he was not sure how

much money Lambert had taken or that Lambert had stolen at least

$200 on May 10, 1998. See Lew v. Commonealth, 20 Va. App. 353,

355, 457 S.E.2d 392, 393 (1995) ("Evidence offered to prove the

corpus delicti in a trial for larceny is insufficient where the

evidence fails to prove that property has been stolen from

another . . . .").

Absent evidence that Lambert had committed a grand larceny

of at least $200, the Commonwealth failed to prove the corpus

delicti of the principal offense. Because the Commonwealth

failed to prove the elements of the underlying grand larceny,

the evidence was insufficient as a matter of law to establish

appellant's guilt as an accessory after the fact to a grand

larceny. See Cherrix v. Commonwealth, 257 Va. 292, 305, 513

S.E.2d 642, 651 (1999) ("[I]n every criminal prosecution, the

Commonwealth must prove the element of corpus delicti, that is,

the fact that the crime charged has been actually

perpetrated."). Accordingly, appellant's conviction is reversed

and dismissed.

Reversed and dismissed.

Appellant also contends that the trial court erred in

failing to grant his motion to strike at the conclusion of the

Commonwealth's evidence and in allowing the case to proceed on the

charge of accessory after the fact to a grand larceny. However,

when a defendant presents evidence in his own behalf, after the

trial court denies his motion to strike made at the conclusion of

the Commonwealth's case-in-chief, the reviewing court considers

the entire record to determine whether the evidence was

sufficient. See Sheppard v. Commonwealth, 250 Va. 379, 387, 464

S.E.2d 131, 136 (1995). Having presented evidence in his defense,

we conclude that appellant waived his initial motion to strike.

Accordingly, we consider only the sufficiency of the evidence.

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