Lead Opinion
This appeal was brought by Gina Marie Jerrome (“Ms. Jerrome”) from an order of the Circuit Court of Ohio County convicting her of grand larceny and sentencing her to prison for 1 to 10 years.
I.
FACTUAL AND PROCEDURAL HISTORY
The relevant facts of this ease involve four crime victims. During the late evening hours of December 8, 2012, all of the victims were at a nightclub called “Generations.” The night club was located in Wheeling, West Virginia.
Two of the crime victims, Karen Jewell and Christopher Violet, were dating and went to the nightclub together. Prior to their arrival at the nightclub, Ms. Jewell and Mr. Violet attended a Christmas party that was hosted by her employer, the law firm of Orrick, Herrington and Sutcliffe.
One of Ms. Jewell’s co-workers, an attorney named Lisa Bauer, was in the restroom when Ms. Jewell saw her purse in the trash can. Ms. Bauer helped Ms. Jewell search other trash cans to see if her wallet was in them. While the women searched trash cans, another woman entered the restroom and mentioned that someone else’s purse was missing. At that point, Ms. Bauer left the restroom to retrieve her own purse. When Ms. Bauer got to the area where she had left her purse, she discovered that also was missing. Items of value in Ms. Bauer’s purse included two cell phones and a medical inhaler.
Around the time Ms. Jewell discovered her purse in a trash can, another woman in the nightclub, a college student named Sadie Atkinson, discovered that her purse was missing. Items of value in Ms. Atkinson’s purse included an iPod and a debit card. Ms. Atkinson was the first person to inform the club’s manager, Monica Thompson, that a theft had occurred. Ms. Thompson called the police to report that Ms. Atkinson’s purse had been stolen. Ms. Thompson also informed the police that Ms. Jerrome had been in the nightclub earlier and that she believed Ms. Jerrome was responsible for the theft of the purse. In particular, Ms. Thompson indicated that she was suspicious of Ms. Jerrome because Ms. Jerrome acted strangely while she was at the nightclub. Ms. Thompson had observed Ms. Jerrome walking throughout the nightclub, but she did not appear to interact with anyone. Ms. Thompson stated that Ms. Jerrome appeared to be hiding something under one of her arms when she left the nightclub. Finally, Ms. Thompson informed the police that Ms. Jerrome had left the club with her boyfriend, Jacob Christopher. After Ms. Thompson called the police, Ms. Jewell and Ms. Bauer informed Ms. Thompson that their purses had been stolen.
When Ms. Jerrome and her boyfriend, Mr. Christopher, left the nightclub, they were accompanied by a third person. The three individuals drove to an apartment complex that apparently was not far from the nightclub. A police officer patrolling the area of the apartment complex saw a car parked improperly. The officer also saw Ms. Jerrome kneeling beside the car and digging into a bag. The police officer parked his car and approached Ms. Jerrome and her companions to investigate what appeared to be suspicious conduct. The police officer saw Mr. Christopher toss something in the doorway of a building. Eventually, other police officers arrived. It was quickly learned that the police were looking for Ms. Jerrome and Mr. Christopher in connection with the purse thefts at the nightclub. The police retrieved the object that Mr. Christopher threw away and identified it as a credit card belonging to Ms. Jewell. The police also discovered other items that were stolen from the nightclub. Ms. Jerrome initially told the police that she found the purses at the club and that she was taking them to the police station.
On January 14, 2013, a grand jury returned a two count indictment against Ms. Jerrome and Mr. Christopher. The indictment charged them with two felony offenses, grand larceny and conspiracy, involving the theft of property belonging to Ms. Jewell, Mr. Violet, Ms. Bauer, and Ms. Atkinson. Ms. Jerrome’s trial was severed from that of Mr. Christopher.
II.
DISCUSSION
On appeal to this Court, Ms. Jerrome asserts two assignments of error. Each issue will be discussed individually.
A. Application of the Single Larceny Doctrine
The first issue raised by Ms. Jerrome is that the circuit court erred in making a pretrial ruling that the State could aggregate the value of the stolen property to support the grand larceny indictment. This issue presents a question of law and requires an examination of our grand larceny statute. Our cases have held that “[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.” Syl. pt. 1, Chrystal R.M. v. Charlie A.L.,
We begin by noting that Ms. Jerrome was indicted on a charge of grand larceny under W. Va.Code § 61-3-13(a) (1994) (Repl.Vol. 2010). The statute sets out the offense of grand larceny as follows:
(a) If a person commits simple larceny of goods or chattels of the value of one thousand dollars or more, such person is guilty of a felony, designated grand larceny, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one nor more than ten years, or, in the discretion of the court, be confined in jail not more than one year and shall be fined not more than two thousand five hundred dollars.
Under this statute, the theft of “goods or chattels” valued at one thousand dollars or more constitutes grand larceny.
This Court first recognized the single larceny doctrine in State v. Hall,
It is well established that the stealing of property from different owners at the same time and at the same place constitutes but one larceny. This has come tobe known as the “single larceny doctrine” to which the overwhelming majority of jurisdictions adhere.
Hall,
The rationale behind the “single larceny doctrine” has also been applied to the crime of receiving stolen property.
While it is true that the stealing from different owners at different times, however slight the interval, constitute several offenses, a larceny of several articles may be committed by the same act, so as to constitute but one offense, though they are the property of different owners. State v. Hennessey,23 Ohio St. 339 [ (1872) ]. And so with respect to receiving or concealing stolen property. Many articles stolen at different times from several persons may be received and concealed by the same act, and then there is but one offense.
Smith v. State,
The facts in the present case indicate that at trial the prosecution offered no evidence concerning separate occasions when the appellant may have received the stolen property. The evidence showed only that the stolen property was concealed on appellant’s farm. Thus, under the facts presented there was but a single offense of larceny by aiding in the concealment of stolen property supported by the evidence. The State failed to show that the appellant committed separate offenses under the statute. Because only one offense was proven, only one conviction and one sentence are warranted. Therefore, the trial court erred in imposing multiple sentences upon the appellant.
Hall,
It has been said that “[t]he rationale behind th[e] [single larceny doctrine] is that the taking of several articles at the same time from the same place is pursuant to a single intent and design.” J.R. v. State,
(1) whether a count in a charging document alleging that the defendant stole the property of several persons at the same time charges more than one offense and is therefore duplicitous; (2) whether a prosecution, conviction, or sentencing for stealing the property of one person bars, under double jeopardy principles, the prosecution, conviction, or sentencing for having stolen the property of another person at the same time; and (3) whether, when the property of different persons is stolen at the same time, the values of the separate items of property may be aggregated to raise the grade of the offense or the severity of the punishment, to the extent that either is dependent on the value of the property taken.
Pitt v. State,
The decision in Richardson v. Commonwealth,
In order for the single larceny doctrine to apply, the items stolen may, but do not have to, be part of the same bundle or parcel; it is sufficient if they be at the same location — that is on the “same table,” or same room, or “same shop[.]” When the evidence supports a finding that the thefts were part of the same larcenous impulse or scheme and were part of a continuous act, a single larceny has occurred. The primary factor to be considered is the intent of the thief and the question to be asked is whether the thefts, although occurring successively within a brief time frame, were part of one impulse. The circumstances to be considered that will bear upon the issue are the location of the items stolen, the lapse of time between their taking, the general and specific intent of the thief, the number of owners, and whether intervening events occurred between the takings. Unless the evidence proves that two or more separate and discrete thefts occurred at separate times which were not part of the same larcenous impulse, then thefts from the same room are but a single larceny.
As for the theft of the two purses from the tenth floor nurses’ station, the evidence was not sufficient to prove that Richardson formed separate and distinct intentions to steal or to commit two separate thefts even though the purses were separated by approximately ten feet. The theft of the two purses occurred at approximately the same time, from the same room or location, and pursuant to a single impulse or design to steal items from that nurses’ station. The fact that the purses were separated by ten feet and that the thief had to walk around a wall from the desk to the cabinet are not circumstances that break the continuity of the thief’s single and continuing act of thievery____Thus, the evidence is insufficient to prove two separate and distinct offenses. The only conclusion that a fact finder could reasonably draw from this record is that Richardson went to the tenth floor nurses’ station intending to steal purses or other items of value and that he stole two purses during one continuous act or transaction.
Richardson,
During oral arguments, counsel for Ms. Jerrome argued that there was no showing that the thefts occurred at the same time and place because the purse of Ms. Atkinson was in a different part of the bar than the purses of the other victims. The decision in Richardson is illustrative of the fact that the single larceny doctrine does not require that several thefts occur simultaneously. Such a requirement is illogical because there will always be some degree of time difference in the theft of multiple, unconnected items. Therefore, the meaning of “same time” for the purpose of the single larceny doctrine contemplates several thefts within a brief time period. Moreover, Richardson is instructive as to the flexible meaning of the “same place” requirement of the single larceny doctrine. Under Richardson, theft of items located in different rooms on the same floor of a building constitutes the “same place.”
In view of the foregoing authorities, we make clear and now hold that, the theft of property from different owners at the same time and place may constitute one larceny. When considering whether the theft of several items of property from multiple victims constitutes one larceny under the single larceny doctrine, the controlling factor is whether the separate takings were part of a single scheme or continuing course of conduct. If so, the values of the property may be aggregated to determine the grade of the offense.
In the instant proceeding, Ms. Jerrome filed a pretrial motion to dismiss the indictment
In the instant case, Defendant is charged with stealing various items from several different persons within a small, finite span of time while at one location: Generations in Wheeling, WV. It also appears from the allegations that Defendant allegedly stole the various items, which includes multiple purses and their contents, within a small window of time, and the items allegedly stolen were in close proximity to each other just prior to the alleged theft. The Court notes particularly that Defendant’s actions occurred (1) at one location, i.e., Generations in Wheeling, WV; (2) within a small and finite window of time; and (3) in a confined area of physical proximity; accordingly, the Court hereby FINDS and CONCLUDES that the Defendant’s alleged crime arose out of a single occurrence. As a result, the Court is satisfied that the State’s aggregation of the value of the items stolen in order to pursue a felony grand larceny charge with respect to Defendant’s actions on the date in question, is appropriate in this case.
The trial court’s pretrial findings are consistent with the requirements of the single larceny doctrine. Moreover, it is clear that the single larceny doctrine was supported by the evidence presented at trial. The trial evidence established that Ms. Jerrome stole items belonging to four people that were contained in three purses. The thefts occurred in the same nightclub and at the relative same time. Moreover, the evidence showed that the separate takings were part of a single scheme or continuing course of conduct by Ms. Jerrome. Consequently, the value of all of the items stolen was properly aggregated to prosecute Ms. Jerrome for grand larceny.
B. Using Non-Fair Market Value Evidence to Establish the Value of Stolen Property
The next argument raised by Ms. Jerrome is that the trial court erred in allowing the victims to offer non-fair market value evidence of the value of the items stolen from them. Specifically, Ms. Jerrome contends that testimony by the victims as to the value of the iPod and cell phones was “based upon their replacement costs, or specific subjective values to the individual victims” or “cost-when-new.” Ms. Jerrome contends this type of evidence was not admissible to prove the value of the items.
With few exceptions, this Court reviews evidentiary rulings made by a trial court for an abuse of discretion:
The West Virginia Rules of Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial court in making evidentiary and procedural rulings. Thus, rulings on the admissibility of evidence ... are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary and procedural rulings of the circuit court under an abuse of discretion standard.
Syl. pt. 1, McDougal v. McCammon,
Ms. Jerrome relies upon the decision in State v. Bingman,
The State has cited to the decision in State v. Hall, supra, as guidance as to what type of evidence may be considered by a jury in deciding the value to place on stolen property. As stated earlier in this opinion, the defendant in Hall was convicted of receiving stolen property. One of the issues the defendant raised was that the trial court erred in permitting the owners of the stolen property to testify concerning the value of the items stolen from them. This Court rejected the argument as follows:
The facts indicate that in order to determine whether a felony or misdemeanor had been committed by the appellant the sole testimony concerning the value of the stolen property offered by the State was given by the owners of the property. Each owner testified when he purchased the property, what condition it was in, both when purchased and when stolen, and what he paid for it when purchased, and its value when stolen____
This Court in State v. Cokeley,159 W.Va. 664 ,226 S.E.2d 40 (1976) stated that, “[njormally the owner of stolen property may testify as to its value because he is deemed qualified to give an opinion concerning the value of the things which he owns----”226 S.E.2d at 43 , citing Commonwealth v. Warlow,237 Pa.Super. 120 ,346 A.2d 826 (1975) and State v. Anderson,20 Ariz.App. 309 ,512 P.2d 613 (1973), aff'd,110 Ariz. 238 ,517 P.2d 508 (1973).
This is also the majority rule. See, e.g., Vickers v. State,303 So.2d 700 (Fla.1974); State v. Smith,209 Kan. 664 ,498 P.2d 78 (1972); Turner v. State,486 S.W.2d 797 (Tex.Cr.App.1972). See generally 66 Am. Jur.2d Receiving Stolen Property § 23 (1973). Moreover, an owner’s testimony concerning the value of his stolen property is not the sole determinative factor but rather is but one piece of evidence which the jury may consider when establishing the property’s value.346 A.2d at 829 .
Hall,
The decision in Hall is instructive on the general rule that “an owner is generally presumed as competent to testify to the value of his stolen property.” Sanchez v. State,
At the outset we will note that our larceny statute, W. Va.Code § 61-3-13, does not address the issue of how stolen property should be valued. As a general rule, “[t]he value of the items stolen means the market value of the property at the time and place of the crime.” Davis v. State,
Fair market value can be proven by evidence of the retail price or sale price, by testimony of an owner’s opinion of value, or an expert opinion of value. No one method has been held to be exclusive. When the owner of the property is testifying as to the value of the property, he may testify as to his opinion or estimate of the value of the property in general and commonly understood terms.
Ray v. State,
In view of the foregoing, we now hold that the owner of stolen property may offer evidence of its value, at the time and place of the crime, based upon the property’s fair market value. In addition to fair market value, other ways of showing the value of stolen property include the purchase price, replacement cost, or the owner’s reasonable belief as to its value. The weight to be given the owner’s testimony as to the value of the property is for the trier of fact to decide.
In the instant proceeding, the testimony provided by the victims as to the value of their property when stolen by Ms. Jerrome was consistent with our holding. The following evidence was provided by the victims of Ms. Jerrome’s larceny. Ms. Atkinson testified that she received the iPod from her parents as a gift, and that she believed it was valued at about $150 to $200. Ms. Jewell testified that her cell phone (iPhone 4S) was worth $500 when it was stolen, based upon the purchase price of a new phone at the time of trial. Ms. Jewell stated the phone was free under the cell phone plan she had, but that if she had not recovered her phone, she would have had to buy a new phone, because her plan was still in effect. Mr. Violet testified that he bought his cell phone (Motorola Razr Maxx) from a friend for $450. He testified that it was worth $650 new.
As previously mentioned, Ms. Jerrome called an expert, Koury Jones, to testify as to the value of used cell phones. Mr. Jones testified that the value placed on the iPod by Ms. Atkinson was a “little high.” He testified that Ms. Bauer’s Blackberry cell phone was worth $35 and that her Kyocera Rise cell phone was worth $90. Mr. Jones also found that Mr. Violet’s Motorola Razr Maxx cell phone was worth $160 to $200. Finally, Mr. Jones testified that Ms. Jewell’s iPhone 4S cell phone was valued at $350 to $400.
“While the evidence was conflicting ... on the value of the personal property taken, the jury had enough evidence before it to prove [Ms. Jerrome’s] guilt beyond a reasonable doubt.” State v. Masters,
CONCLUSION
In view of the foregoing, the circuit court’s order convicting Ms. Jerrome of grand larceny and sentencing her to prison for 1 to 10 years is affirmed.
Affirmed.
Notes
. Counsel for Ms. Jerrome indicated during oral argument that she has been released on parole.
. Ms. Jewell was employed as a staff coordinator.
. One of the cell phones belonged to Mr. Violet. The battery in Ms. Jewell's cell phone was dead, so she was carrying Mr. Violet's cell phone.
. One of the cell phones was a work cell phone.
. The record does not indicate the status of the charges against Mr. Christopher.
. We dispense with our usual practice of setting forth a general standard of review section because each of the issues presented in this case has its own unique review standard, which will be included in the relevant section.
. The crime of petit larceny is set out under W. Va.Code § 61-3-13(b) (1994) (Repl.Vol.2010) as follows:
(b) If a person commits simple larceny of goods or chattels of the value of less than one thousand dollars, such person is guilty of a misdemeanor, designated petit larceny, and, upon conviction thereof, shall be confined in jail for a term not to exceed one year or fined not to exceed two thousand five hundred dollars, or both, in the discretion of the court.
.Other issues were involved in the case that are not relevant to this appeal.
. We went on to adopt the doctrine in Syllabus point 9 of Hall:
Under the provisions of W. Va.Code, 61—3—18 [1931] where the State proves that a defendant received or aided in the concealment of property which was stolen from different owners on different occasions, but does not prove that the defendant received or aided in the concealment of the property at different times or different places then such defendant may be convicted of only one offense of receiving or aiding in the concealment of stolen property.
. The defendant committed other crimes while in the hospital, but those matters are not relevant to this discussion.
. Ultimately, the decision of what constitutes the same place and time is determined on a case-by-case basis.
. Ms. Jerrome challenged the indictment on other grounds that are not relevant herein.
. Ms. Jerrome contends in her brief, and her counsel restated during oral arguments, that Mr. Violet testified that the phone increased in value after he bought it. Mr. Violet did not provide such testimony. Mr. Violet simply testified that his purchase price was less than the original price.
. See Syl. pt. 2, State v. Bailey,
Concurrence Opinion
concurring:
I concur in the majority’s conclusion that the petitioner’s grand larceny conviction is properly affirmed under the “single larceny doctrine” and agree with this Court’s recognition of the doctrine. I write separately, however, to highlight what I believe to be the guiding principle in this regard, which is implicit in the majority’s new syllabus point. This Court has previously made clear that with respect to singular or multiple charges, absent a viable double jeopardy challenge, the propriety of such charge(s) is measured by evidence of multiple separately-formed or singular intent(s), as determined by a jury. This critical element was given thorough treatment in my colleague Justice Workman’s opinion of State v. McGilton,
In McGilton, this Court was faced with the same, but inversely presented, issue: whether a defendant may be convicted of multiple offenses of malicious assault even when the offenses were part of the “same course of conduct.” Id. at 556,
Subsequent to McGilton, Justice Workman and I criticized the majority for disregarding these principles in State v. Goins,
Taking heed of this principle, the Court’s new syllabus point properly allows the jury to determine the number and quality of larcenies based upon the evidence with which it is presented. Although the issue presented is typically couched in terms of whether multiple convictions may be sustained based upon repetitive conduct, as opposed to whether a single conviction may obtain from cumulative conduct, the underlying principle remains the same: whether single or multiple convictions may be sustained depends on
The facts of the instant case not only illustrate the universe of possibilities regarding multiple or single larcenies, but are instructive as to the nature and quality of evidence that should be adduced at trial to support a conviction. Here, the petitioner stole items from four victims. The items were contained in three different purses, which were located at two different locations in one bar into which the petitioner and her boyfriend entered that evening before leaving with the stolen items. The evidence presented at trial indicated that the property of Karen Jewell and Christopher Violet, which was contained in Ms. Jewell’s purse, totaled more than $1,000.00. Similarly, the collective worth of Ms. Jewell and Lisa Bauer’s stolen items, which were contained in different purses sitting on the same table, totaled more than $1,000.00. Sadie Atkinson’s purse, however, was located some twenty to thirty feet away in a different part of the bar. However, there was also evidence that the petitioner was observed “circling” the bar, ostensibly plotting her larcenous scheme, which may have included the theft of all of the purses. Although the jury could have well concluded from this evidence that the petitioner committed one, two, or three different larcenies of varying degrees, it found that one larceny occurred, as was within its province.
As demonstrated by the fact pattern herein, the State must ensure that its evidence comports with the manner in which the defendant is charged. The focus must be, as explained in McGilton, on establishing the requisite evidence of intent to support the charges. The majority expressly states that “[ultimately, the decision of what constitutes the same place and time is determined on a ease-by-ease basis[,]” and its new syllabus point is crafted in a manner that acknowledges the fact-specific nature of this issue. Unquestionably, our precedent regarding singular or multiple charges compels the outcome reached in this ease.