Frances Denise Hinnant v Commonwealth

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COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Coleman and Willis
Argued at Alexandria, Virginia

FRANCES DENISE HINNANT
MEMORANDUM OPINION BY
Vv. Record No. 0909-95-4 JUDGE SAM W. COLEMAN III
MAY 7, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge

John M. Tran (Greenberg, Bracken & Tran, on
briefs), for appellant.

Leah A. Darron, Assistant Attorney General

(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Frances Denise Hinnant was convicted in a jury trial of
petit larceny under Code § 18.2-96. Hinnant contends that the
trial court erred by refusing to instruct the jury that she was
not guilty of larceny if she believed that the stolen property
had been abandoned, by admitting certain evidence, and by finding
the evidence sufficient to prove that the stolen property had
value. We hold that the trial court did not err and affirm the
defendant's conviction.

FACTS

On July 30, 1994, at approximately 9:50 p.m., Shannon

Welford, a security guard at a department store in the Pentagon

City Mall, saw the defendant in the store and began to watch her.

" Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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Welford testified that she focussed her attention on the
defendant because the defendant was wearing "revealing" clothing
and acting suspiciously. 	According to Welford, the defendant
"was looking around nervously in all directions . . . as if . . .
to see if somebody was watching her," and "seemed to be kind of
pacing back and forth in a small area and looking towards the
wrap desk." 	Welford observed the defendant remove a blue suit
from one display area and hang it up on another display. 	Then
Welford witnessed the defendant make "several tugging motions" at
the suit, and "eventually saw something cupped into her right
hand."
After the defendant left the store with a male companion,
Welford checked the suit the defendant had been handling and
noticed that three buttons were missing from it. 	Welford
testified that the suit was not missing the three buttons before
the defendant handled it.
Although the defendant passed several cashiers on her way
out of the store, she made no attempt to pay for the buttons or
ask an employee whether she could have them. 	Welford stopped the
defendant outside the store and asked her to come to the security
office, which the defendant did. 	Welford searched the
defendant's purse and found three buttons identical to those
missing from the blue suit.
When Welford asked the defendant why she took the buttons,
the defendant stated "that she just wanted them and knew it was

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wrong to do it." 	The defendant also "repeatedly asked if she
could just pay for the item and go."
Welford testified that the suit was valued at $190 prior to
the removal of the buttons, but that without the buttons, the
suit "ha[d] no value to [the store]." 	Welford did testify that
"it would be possible that [the suit] -- if it was not destroyed,
. . . would be sent to a rack store and sold for a very low rate,
a very low price." 	Welford further testified that although the
store does not sell buttons, the buttons were valued at
approximately $5.
The defendant testified that she found the buttons on the
floor and that she thought they were trash. 	She testified that
she planned to ask the cashier if she could have the buttons, but
forgot to do so after her companion came over and told her that
the store was about to close. 	Michael Wilson, the defendant's
companion, testified that he did not see the defendant take the
buttons, but admitted that he was not with her the entire time
they were in the store.
On rebuttal, Welford testified that she found several other
buttons in the defendant's purse in addition to those missing
from the blue suit. 	The following morning, Welford investigated
further and found a red dress in another department of the store
that was missing buttons identical to those found in the
defendant's purse.
ABANDONMENT INSTRUCTION

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At the conclusion of all the evidence, the defendant
requested the trial court to give the jury the following
instruction:
Instruction F -- If you believe the defendant
. . . took the buttons she is charged with
stealing under a belief that the buttons were
abandoned property, then, even though her
belief was mistaken, you shall find the
defendant not guilty of petit larceny.
The defendant testified that she found the buttons on the floor
and that she thought "[t]hey were trash." 	She contends,
therefore, that the trial court erred by refusing Instruction F
because she was entitled to defend the charge of larceny by
proving that at the time of the taking she possessed an honest
belief that the property had been abandoned and, thus, had no
intent to steal the property. 	See Barnes v. Commonwealth, 190
Va. 732, 740, 58 S.E.2d 12, 16 (1950); see also Butts v.
Commonwealth, 145 Va. 800, 815, 133 S.E. 764, 768 (1926).
On appeal of the trial court's denial of a defense
instruction, we review the evidence in the light most favorable
to the defendant. 	Boone v. Commonwealth, 14 Va. App. 130, 131,
415 S.E.2d 250, 251 (1992). 	Failure to give the defendant's
instruction is reversible error if the instruction is supported
by credible evidence that amounts to more than a mere
"scintilla." 	Id. at 132, 415 S.E.2d at 251.
In the Barnes case, the defendants were convicted of
stealing four large rolls of cable from a shipyard dump. 	Barnes,
190 Va. at 735, 58 S.E.2d at 13. 	At trial, the defendants

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testified that they had previously removed cable from the dump
"and that the persons in charge of the Shipyard had acquiesced in
this practice for some years." 	In fact, one of the defendants
testified that the shipyard's foreman "had told a group of men,
including himself, that they could take anything on the dump as
long as they 'did not bother lumber.'" 	Id. at 736, 58 S.E.2d at
14. 	Consequently, the trial court instructed the jury that it
must find the defendants not guilty if it "believe[d] from the
evidence that the [shipyard] maintained a dump at or near the
premises and that they suffered or permitted the accused and
others to reclaim metal and other scrap materials therefrom; and
. . . that the accused found the cable in question upon the said
dump and removed it as they had been permitted to do on other
occasions, under an honest belief that it was abandoned
material." 	Id. at 740, 58 S.E.2d at 16 (emphasis in original).
The evidence in Barnes that they had been told or allowed to
remove the property from the dump in the past was a reason that
would have allowed the jury to find that the defendants had
reason to believe that the shipyard had abandoned the cable in
the dump. 	See also State v. Hayes, 67 S.E.2d 9, 16 (W. Va. 1951)
(holding that the defense instruction on abandoned property
should have been given where "the uncle of one of the defendants
had told him a year before the taking that the [property] had
been abandoned," and the property was located in a dump and was
in a dilapidated condition). 	Thus, Barnes indicates that a trial

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court must give an instruction on abandoned property when the
evidence proves that a reason exists for the accused to have a
good faith belief that the property is abandoned.
This principle, commonly referred to as a bona fide claim of
right, which simply negates the existence of an intent to steal,
is uniformly recognized in other jurisdictions. 	See Butts, 145
Va. at 813, 133 S.E. at 768; see also Nicholson v. State, 369 So.
2d 304, 307 (Ala. Crim. App. 1979) ("Th[e] intent [to commit
larceny] is lacking and the defendant is not guilty of larceny if
he has taken the property with the reasonable and actual belief
that it was abandoned.") (emphasis added); Szewczyk v. State, 256
A.2d 713, 715 (Md. Ct. Spec. App. 1969) (same); State v. Gage,
136 N.W.2d 662, 665 (Minn. 1965) (same). 	For instance, in
Nicholson v. State, the Court of Criminal Appeals of Alabama held
that the trial court erred by refusing to give an instruction on
abandoned property because "there was evidence by virtue of the
appellant's testimony, other testimony, the dilapidated condition
of the property taken and its location which tended to show that
the trucks may have been abandoned." 	369 So. 2d at 307; see also
Jordan v. State, 107 Tex. Crim. 414, 419-20 (Tex. Crim. App.
1927).
Here, the facts do not provide a reasonable basis for the
defendant to believe that the buttons were abandoned. 	A
commercial retail establishment does not abandon its merchandise
by discarding it or leaving it on the floor. 	A patron of a

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clothing store has no reason or basis to conclude that
merchandise or matching buttons from merchandise that are found
on the floor where clothing is on display have been abandoned.
The location of property is a factor to be considered in
determining whether a person might reasonably believe that the
property has been abandoned. 	For instance, if buttons had been
found in a trash can, a person might reasonably conclude that
property is abandoned. 	In both Barnes and Butts, prior
acquiescence or consent to removing cable from the dump and
Butts's entitlement to be paid his wages were reasons for the
defendants to believe, in good faith, that they had a right to
claim the property. 	No reasonable person would have believed
that the store had abandoned its interest in the blue suit if it
had been found on the floor. 	Similarly, it is not reasonable to
conclude that the store had abandoned its interest in the
buttons, which were an integral part of the suit. 	Even accepting
the defendant's account that she found the buttons on the floor
and did not remove them from the suit, she acknowledged that she
did not have a reason to honestly believe they were abandoned
when she testified that it "did cross [her] mind at first" to ask
someone whether she could take them. 	She did not believe that
she had a right to claim the buttons. 	Thus, because the
defendant did not produce a scintilla of evidence to prove that
she had a reason to believe, in good faith, that the buttons had
been abandoned, the trial court did not err by refusing

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Instruction F.
VALUE
"At the common law, an article to be the subject of larceny
must be of some value. 	It is sufficient, however, it is said, if
it be worth less than the smallest coin known to the law." 	Evans
v. Commonwealth, 226 Va. 292, 297, 308 S.E.2d 126, 129 (1983)
(quoting Woverton v. Commonwealth, 75 Va. 909, 913 (1881)).
Accordingly, the Commonwealth is not required to prove "that the
subject of petit larceny has a specific value." 	Id.
Because the Commonwealth was not required to prove the
specific value of the buttons, we need not address the
defendant's claim that Shannon Welford had no basis for assigning
a value of $5 to the buttons. 	The fact that buttons belonging to
the store were taken is sufficient evidence to prove that
property of "some value" was the subject of petit larceny.
ADMISSIBILITY
The defendant contends that Welford's testimony that the
defendant "was looking around nervously in all directions . . .
as if . . . to see if somebody was watching her" violated the
rule prohibiting lay witnesses from offering their opinions to
the jury.1 See Ramsey v. Commonwealth, 200 Va. 245, 249, 105
1 Although the defendant did not allege specific grounds at
trial for the objection to Welford's testimony, the trial court
stated that the testimony is "only admitted because it's
[Welford's] state of mind. 	It's not admitted because [Welford
is] right as to what [the defendant's] state of mind was at the
time." 	Therefore, the defendant is not barred by Rule 5A:18 from
raising this issue on appeal because the trial court considered
the issue and ruled on it. 	See Weidman v. Babcock, 241 Va. 40,

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S.E.2d 155, 158 (1958). 	In addition, the defendant argues that
the trial court abused its discretion by admitting evidence of a
red dress that was missing buttons identical to those found in
the defendant's possession because it was evidence of a prior bad
act.2 See Knick v. Commonwealth, 15 Va. App. 103, 105, 421
S.E.2d 479, 480 (1992). 	We hold that the trial court did not err
by admitting the testimony and the evidence of the red dress.
(..continued)
44, 400 S.E.2d 164, 167 (1991).
2 Although the defendant did not offer reasons for her
objection when the dress was admitted into evidence, she had
provided grounds for the objection prior to trial in her motion
in limine.
Some statements are not mere opinions
but are impressions drawn from collected,
observed facts, and are admitted under the
"collective facts rule." 	Thus, an "opinion"
formed by a witness at a given time, may be a
"fact" that explains why the witness acted in
a particular way. 	Making this distinction is
a question best left to the discretion of the
trial judge.
Lafon v. Commonwealth, 17 Va. App. 411, 420-21, 438 S.E.2d 279,
285 (1993) (citations omitted).
Here, Welford testified that the defendant "was looking
around nervously" in the context of explaining why she noticed
the defendant. 	As the trial judge noted, Welford's testimony was
offered to explain what she perceived from her observations of
the defendant's "physical acts, . . . eye movements, [and] body
movements." 	Therefore, the judge did not abuse his discretion by
admitting the testimony.
With respect to the admissibility of evidence about the red
dress, evidence of a prior or subsequent offense is admissible if

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it is "closely related in time [to the offense charged] and
tend[s] to show a general scheme or guilty knowledge and intent."
Sutphin v. Commonwealth, 1 Va. App. 241, 246, 337 S.E.2d 897,
899 (1985) (emphasis in original). 	Welford testified that the
morning after the defendant was arrested for stealing the buttons
from the blue suit, she searched the store for other merchandise
that was missing buttons. 	Welford found the red dress and
determined that it was missing buttons identical to two of the
buttons found in the defendant's possession. 	Therefore, the
trial court did not err by admitting evidence pertaining to the
red dress. 	Because the red dress was found to be missing buttons
identical to those found on the defendant soon after the she was
arrested for stealing the buttons from the blue suit, it was
reasonable to conclude that the defendant had stolen those
buttons. 	The evidence tended to establish a common scheme or
plan to steal buttons from the store's merchandise.
For the foregoing reasons, we affirm the defendant's
conviction.
Affirmed.

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BENTON, J., dissenting.
Abandoned property cannot be the subject of larceny. 	See
Nicholson v. State, 369 So. 2d 304, 307 (Ala. Crim. App. 1979);
Commonwealth v. Meinhart, 98 A.2d 392, 395 (Pa. 1953). 	Whether
items found on the property of another are abandoned is a factual
issue that must be decided by a jury when put in issue by the
evidence. 	Morissette v. United States, 342 U.S. 246, 276 (1952).
Furthermore, even if the evidence proved the property was not
abandoned, a defendant could not be guilty of larceny if the jury
found she honestly believed it to be abandoned. 	Barnes v.
Commonwealth, 190 Va. 732, 740, 58 S.E.2d 12, 16 (1950). 	3
Wharton's Criminal Law § 377, p. 447 (15th ed. 1995).
Hinnant's testimony, if believed by the jury, would have
supported a finding that she had a good faith reasonable belief
that the buttons she found on the floor of the retail store,
which did not sell buttons, were abandoned. 	The majority's bald
conclusion that a "commercial retail establishment does not
abandon its merchandise by discarding it or leaving it on the
floor" is not compelled by any rule of law and cannot support the
failure to instruct the jury. "[J]uries are not bound by what
seems inescapable logic to judges." 	Morissette, 342 U.S. at 276.
Viewed in the light most favorable to Hinnant, Boone v.
Commonwealth, 14 Va. App. 130, 131, 415 S.E.2d 250, 251 (1992),
the evidence was sufficient to support the giving of the
instruction.

For these reasons, I would reverse the conviction and remand

for a new trial.