Tuesday 27th 

 November, 2001. 

Carol Bowyer Johnson, Appellant, 

 against Record No. 1354-00-3 

 Circuit Court No. CR00011925-03 

Commonwealth of Virginia, Appellee. 

Upon a Rehearing En Banc 

Before Chief Judge Fitzpatrick, Judges Benton, Elder, Bray, Annunziata, 

Bumgardner, Frank, Humphreys, Clements and Agee 

 Craig P. Tiller (Davidson, Sakolosky, Moseley, & 

Tiller, on brief), for appellant. 

 Amy L. Marshall, Assistant Attorney General 

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

appellee. 

 By published opinion dated March 20, 2001, a panel of this 

Court affirmed the judgment of the trial court. See Johnson v. 

Commonwealth, 35 Va. App. 134, 543 S.E.2d 605 (2001). We stayed the 

mandate of that decision and granted a rehearing en banc. 

 Upon rehearing en banc, it is ordered that the stay of the 

March 20, 2001 mandate is lifted, and the judgment of the trial court 

is affirmed unanimously for the reasons set forth in the panel 

opinion. 

 It is ordered that the trial court allow counsel for the 

appellant an additional fee of $200 for services rendered the 

appellant on the rehearing portion of this appeal, in addition to 
counsel's costs and necessary direct out-of-pocket expenses. This 

amount shall be added to the costs due the Commonwealth in the 

March 20, 2001 mandate. 

 This order shall be published and certified to the trial 

court. 

 A Copy, 

 Teste: 

 Cynthia McCoy, Clerk 

 By: 

 Deputy Clerk 
 Wednesday 6th 

 September, 2000. 

Carol Bowyer Johnson, Appellant, 

 against Record No. 1354-00-3 

 Circuit Court No. CR00011925-03 

Commonwealth of Virginia, Appellee. 

From the Circuit Court of the City of Lynchburg 

 Before Judge Coleman 

A judge of this Court having determined that this petition 

should be granted, an appeal is hereby awarded to the petitioner from 

a judgment of the Circuit Court of the City of Lynchburg dated May 8, 

2000. 

No bond is required. The clerk is directed to certify this 

action to the trial court and to all counsel of record. 

Pursuant to Rule 5A:25, an appendix is required in this 

appeal and shall be filed by the appellant at the time of the filing 

of the opening brief. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
CERTIFICATE OF CLERK 

I, Cynthia L. McCoy, Clerk of the Court of Appeals of 

Virginia, do hereby certify that on September 6, 2000 an appeal 

was awarded as described in the order to which this certificate 

is appended. A copy of this certificate and a copy of the order 

to which it is appended were this day mailed to the trial court 

indicated in the order and to all counsel of record. 

Given under my hand this 6th day of September, 2000. 

 Cynthia L. McCoy, Clerk 

 By: 

 Deputy Clerk 

 -4- 
COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Agee 

Argued at Salem, Virginia 

CAROL BOWYER JOHNSON 

 OPINION BY 

v. Record No. 1354-00-3 JUDGE ROBERT J. HUMPHREYS 

 MARCH 20, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 Craig P. Tiller (Davidson, Sakolosky, 

Moseley & Tiller, P.C., on brief), for 

appellant. 

 Amy L. Marshall, Assistant Attorney General 

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

for appellee. 

 Carol Bowyer Johnson appeals her conviction, after a bench 

trial, of misdemeanor concealment of merchandise, in violation of 

Code § 18.2-103. Johnson argues the evidence was insufficient to 

support the conviction. 

I. Background 

 Between the months of August and November, 1999, security 

personnel of a Lynchburg Wal-Mart store observed Johnson in the 

store on several occasions, behaving suspiciously. On August 

16, 17, 22, and 31, October 12 and 22, and November 15 and 22, 

respectively, security personnel observed Johnson, by video 

surveillance, enter the cigarette aisle of the store, pick up 

several cartons of cigarettes, place them in her shopping cart 

-5-
and cover them with items of clothing and other items she 

already had in her cart.1

 On August 31, after viewing Johnson's behavior on video, 

security officer Andrew Hill went to the main floor and followed 

Johnson after she left the cigarette aisle. Johnson had a male 

companion with her at the time. Hill followed the two to the 

toy department, where he observed Johnson "taking the cartons of 

cigarettes and . . . stacking them behind a rack of toy boxes," 

and "fixing the boxes where the cigarettes could not be seen." 

He then observed Johnson push her cart to the lawn and garden 

department, leave the cart with the other merchandise still in 

it, and exit the store with her companion. 

 On an unspecified date in October, Hill again observed 

Johnson's behavior on video and followed her to the back of the 

store to the "same aisle." He again observed her taking the 

cigarettes out of the cart and putting them behind "all the 

boxes of toys and concealing them." Johnson then pushed her 

cart to the pet department, left her cart by the last aisle, and 

exited the store through the lawn and garden department. 

 On another occasion in October, Johnson approached Angela 

Culpepper, a clerk in the lawn and garden department, and "asked 

her questions." Culpepper asked Johnson to wait a moment. When 

 1

 Each of the surveillance videos recording Johnson's 

activities in the cigarette aisle of the store was admitted as 

evidence at trial. 

-6-
Culpepper returned her attention to Johnson, she had abandoned 

another shopping cart full of merchandise and left the store. 

"Around October 22, 1999," Culpepper had another occasion to 

observe Johnson. On this occasion, Johnson asked Culpepper some 

questions "about plants." When Culpepper "turned [her] back," 

Johnson again abandoned her cart of merchandise and left the 

store. Culpepper testified that she observed "a big bulk" under 

Johnson's sweatshirt when Johnson first approached her.2

 On November 15, 1999, Hill again observed Johnson on video. 

This time he saw her take a stack of cigarette cartons, placing 

some under her arm and holding some in her hands, and walk out 

of view of the camera. Hill followed Johnson to the "same aisle 

of toys." He testified that Johnson seemed "spooked" and came 

out of the aisle and walked around the store, with the 

cigarettes now in her shopping cart, covered by clothing items. 

Johnson went to the front of the store and walked out of the 

store, leaving her cart full of clothing and cartons of 

cigarettes by the main doors. 

 Finally, on November 22, 1999, security officer Jerry 

Thomas observed Johnson engaging in the same behavior on video 

and followed her out of the cigarette area to the "same aisle" 

in the toy department. He observed Johnson open a carton of the 

cigarettes and walk to another aisle. At that point, a woman, 

 2

 Lillie Bowyer, Johnson's mother, testified that Johnson 

was pregnant during that time. 

-7-
who Thomas testified he thought was Johnson's mother, walked up 

and looked at Thomas, then at Johnson. The two women proceeded 

to the grocery department, left the shopping cart in the grocery 

main aisle, and left the store. Thomas found the cigarettes and 

other items in the cart and followed Johnson and her companion 

out of the store. "About halfway down the parking lot [Johnson] 

asked [Thomas] if [he] had a fucking problem." She continued 

toward a car and got in with the other woman. Johnson "flipped 

[Thomas] the finger through the window of the car and yelled 

'you fat, mother fucker.'" Thomas took down Johnson's license 

plate number and contacted the police. 

 On March 6, 2000, Johnson was indicted on eight (8) counts 

of concealment, third or subsequent offense, in violation of 

Code §§ 18.2-103 and 18.2-104. After the presentation of 

evidence at the May 8, 2000 trial, the trial court dismissed 

seven of the eight charges and convicted Johnson of only one 

count of misdemeanor concealment for her actions on August 31, 

1999. The trial judge stated the following: 

Miss Johnson, I am going to find as fact and 

law that the Commonwealth has proven beyond 

a reasonable doubt that on August 31st, 

1999, you concealed merchandise within the 

meaning of the statute . . ., in other 

words, with intent to defraud Wal-Mart. 

* * * * * * * 

There's just no explanation for you 

concealing, first, in your cart and then 

behind the toys. 

-8-
 On appeal, Johnson contends the evidence was insufficient 

to establish that she concealed the cigarettes within the 

meaning of the statute. As a result, she argues there was no 

evidence from which the court could infer her intent to defraud 

Wal-Mart of the value of the goods.3

II. Analysis 

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). When the 

sufficiency of the evidence is challenged on appeal, "it is our 

duty to look to that evidence which tends to support the verdict 

and to permit the verdict to stand unless plainly wrong." 

Snyder v. Commonwealth, 202 Va. 1009, 1016, 121 S.E.2d 452, 457 

(1961). "The judgment of a trial court sitting without a jury 

is entitled to the same weight as a jury verdict and will not be 

set aside unless it appears from the evidence that the judgment 

is plainly wrong or without evidence to support it." Martin, 4 

Va. App. at 443, 358 S.E.2d at 418. 

 To convict an accused for unlawful concealment in violation 

of Code § 18.2-103, "[t]he Commonwealth must prove (1) a willful 

concealment of merchandise, done (2) with the intent to convert 

 3

 Johnson also assigns error to the trial court's failure to 

grant her motions to strike and bases her contention on the same 

sufficiency argument. Accordingly, we treat all of Johnson's 

assignments of error as a single sufficiency issue. 

-9-
the merchandise or to defraud the storekeeper." Snead v. 

Commonwealth, 11 Va. App. 643, 646, 400 S.E.2d 806, 807 (1991).4 

The willful concealment of goods while still on the premises is 

prima facie evidence of intent to defraud the owner of the value 

of the goods or merchandise at issue. Code § 18.2-103. 

 Johnson argues that because no evidence proved that she 

concealed the items on her person, her actions did not fall 

within the purview of the statute. Although it appears that no 

reported appellate decision has applied the concealment statute 

to a case where an item was concealed somewhere other than on 

the defendant's person, we disagree with Johnson's contention. 

 4

 Code § 18.2-103 provides the following in pertinent part: 

Concealing or taking possession of 

merchandise; altering price tags; 

transferring goods from one container to 

another; counseling, etc., another in 

performance of such acts--Whoever, without 

authority, with the intention of converting 

goods or merchandise to his own or another's 

use without having paid the full purchase 

price thereof, or of defrauding the owner of 

the value of the goods or merchandise, (i) 

willfully conceals or takes possession of 

the goods or merchandise of any store or 

other mercantile establishment . . . when 

the value of the goods or merchandise 

involved in the offense is less than $200, 

shall be guilty of petit larceny . . . . 

The willful concealment of goods or 

merchandise of any store . . . while still 

on the premises thereof, shall be prima 

facie evidence of an intent to convert and 

defraud the owner thereof out of the value 

of the goods or merchandise. 

-10-
 The plain language of the statute does not require proof of 

concealment on the person. In construing a statute, "[w]here 

the legislature has used words of a plain and definite import 

the courts cannot put upon them a construction which amounts to 

holding the legislature did not mean what it has actually 

expressed." Dominion Trust Co. v. Kenbridge Constr., 248 Va. 

393, 396, 448 S.E.2d 659, 660 (1994) (citations omitted). The 

plain meaning of the term "conceal" is "to place out of sight; 

withdraw from being observed: shield from vision or notice". 

Webster's Third New International Dictionary 469 (1993). The 

definition is not limited to concealment on the person, and the 

plain language of the statute does not place such a limitation 

on the term. Moreover, the title to the statute contemplates 

concealment or taking possession of merchandise by "transferring 

goods from one container to another." Thus, we decline 

Johnson's invitation to change the plain meaning of Code 

§ 18.2-103 by adding the phrase "on his/her person" as a 

modifier to the term "conceals." 

 The statute does not, however, prohibit simply the 

concealment of merchandise. Instead, it prohibits a willful 

concealment. "The word [willful] often denotes an act which is 

intentional, or knowing, or voluntary, as distinguished from 

accidental. But when used in a criminal statute it generally 

means an act done with a bad purpose; without justifiable 

excuse; stubbornly, obstinately, perversely. The word is also 

-11-
employed to characterize a thing done without ground for 

believing it is lawful." Snead, 11 Va. App. at 646-47, 400 

S.E.2d at 807 (citation omitted). 

 Here, the August 31, 1999 store surveillance video shows 

Johnson taking several cartons of cigarettes from the shelf, 

placing them in her shopping cart, then intentionally covering 

them from view with items of clothing she had in her cart. 

Security officer Hill testified that after viewing this video, 

he followed Johnson to the toy aisle and witnessed her "putting 

[the] cartons of cigarettes behind the boxes of toys . . . and 

fixing the boxes where the cigarettes could not be seen." 

Johnson's actions in this regard amounted to willfully placing 

the goods "out of sight" and concealing the goods in the manner 

contemplated by the statute. This conduct alone is prima facie

evidence of Johnson's intent to willfully defraud Wal-Mart of 

the value of the goods. The trial court found that this prima

facie case was not rebutted by Johnson. 

 Considering the above, in conjunction with the totality of 

Johnson's conduct, we hold that the trial court could reasonably 

find, beyond a reasonable doubt, that Johnson willfully 

concealed the goods with the intent to defraud Wal-Mart of their 

value. Accordingly, the holding of the trial court is affirmed. 

Affirmed. 

-12-