Record No. 2045-92-4Court of Appeals of Virginia. Argued at Alexandria, Virginia.
Decided: May 17, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, J. Howe Brown, Jr., Judge
Reversed and remanded.
Clinton O. Middleton, Senior Assistant Public Defender (Office of Public Defender, on brief), for appellant.
Janet F. Rosser, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Present: Chief Judge Moon, Judge Elder and Senior Judge Duff
MEMORANDUM OPINION[*]
JUDGE LARRY G. ELDER:
Jimmy Lee Davis appeals his conviction for grand larceny under Code Sec. 18.2-95. He contends that the evidence was insufficient to show that the stolen items were valued in excess of $200 as required for grand larceny. For the reasons that follow, we reverse appellant’s conviction.
The value of an object of larceny is the fair market value at the time and place of the theft. See, e.g., Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d 792, 792 (1981). The fair market value can be proven by either direct or circumstantial evidence. Veney v. Commonwealth, 212 Va. 805, 806-07, 188 S.E.2d 80, 81-82 (1972). The evidence must be sufficient to allow the trier of fact to “intelligently and fairly estimate with reasonable certainty” the value of the item at the time of the loss. Gertler v. Bowling, 202 Va. at 216, 116 S.E.2d 268, 270 (1960). The Commonwealth bears the burden of proving value beyond a reasonable doubt. Knight v. Commonwealth, 225 Va. 85, 88, 300 S.E.2d 600, 601 (1983).
The outcome of this case is governed by the holding i Dunn v. Commonwealth, 222 Va. 704, 284 S.E.2d 792 (1981). Dunn
recognized that “the original purchase price of an item may be admitted as evidence of its current value,” but noted that “there must also be ‘due allowance for elements of depreciation.’ Without a showing of the effect of age and wear and tear on the value of an item . . . the jury might be misled to believe that original price equals current value.” Id. at 705, 284 S.E.2d at 792 (quoting Gertler, 202 Va. at 215, 116 S.E.2d at 270).
In this case, the Commonwealth introduced evidence as to the age, original purchase price, and condition of each of the items taken. Faha, the owner of the items, testified that all were in good working condition, and the Commonwealth introduced photographs of the items taken. In addition, Faha testified that the value of the VCR was $50 at the time of the theft. The Commonwealth therefore had only to prove that the remaining items taken had a fair market value of $150 or more. We conclude, however, that the record contains insufficient evidence from which the jury could reach such a conclusion. Faha gave no testimony as to the fair market value of the remaining items, some of which were fifteen years old, and, as in Dunn, the record contains insufficient evidence from which the jury could determine depreciation from the original purchase prices. In this case, the introduction of the photographs provided no more of a basis for calculating depreciation than did the testimony of the owner that the items were in good working condition at the time of the theft.
For these reasons, we reverse appellant’s conviction and remand to the trial court for further proceedings on petit larceny if the Commonwealth be so advised.
Reversed and remanded.