COURT OF APPE ALS OF VIRGINIA

Present: Judg e Bray, Senior Judges Baker and Overton * Argued at Norf olk, Virginia

JESSIE LAMONT MERCER, A/K/A TONY HORICE DAVIS OPINION BY v. Record No. 2663-97-1 JUDGE JOSEPH E. BAKER MARCH 23, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT CO URT OF THE CITY OF VIRGINIA BEACH Robert B. Cromwe ll, Jr., Judge Asha S. Pandya, Assi stant Public Defender (Lynndolyn T. Mitchell, Seni or Assistant Public Defender; Offi ce of the Public Defender, on brief) , for appellant. Marla Graff Decker , Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Jessie Lamont Merc er, also known as To ny Horice Davis, (appellant) ap peals from his conviction by the Circui t Court of the City of Virg inia Beach (trial cour t) for viol ating Code § 18.2-94. The sole issue presen ted is whether th e evidence was sufficient to find him guilty of that offense. Finding the evidence sufficient, we affirm the judgment of the trial court.

* Judge Overton participated in the hearing and decision of this case prior to the effective date of his retirement on January 31, 1999, and thereafter by his designation as a senior judge pursuant to Code § 17.1-401, recodifying Code § 17-116.01:1.Under familiar princi ples of appell ate review, we examine the evidence in the light most favorable to th e Commonwealth , granting to it all reason able inferences fairly deducible th erefrom. See Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a trial court will be disturbed only if plainly wrong or without evid ence to su pport it. See id. The inferences to be draw n from proven facts ar e matters so lely for the fact finder’s determination. See Hancock v. Commonwealth , 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991). Viewed accordingly, the reco rd discloses th at on May 30, 1997, Richard Lafa rr observed appellant enter the gr ocery store where Lafarr worked. Appellant procee ded down an aisle in the store and looked around nervously. La farr, who wa s watching appellant via a cl osed circuit tele vision monitor, saw appellant pick up an item and pl ace it in his left pant s pocket. Lafarr saw the item slide down ap pellant’s pants leg to his ankl e. Appellant repeated this ac tion with a second item, and again Lafa rr saw it fall down to the bott om of appellan t’s pants leg, without falling to the floor. Store employees subsequently to ok appellant into custody and recovered two six- inch by three-in ch boxes of Nico rette gum from appellant’s pant s leg. The gum wa s valued at $110 . Appellant had no identification and no means to pay for the gum. He was wearing baggy camoufla ge pants, and Lafarr note d that appellant’s left

- 2 -pants pocket was slit, allowing items to fall through the pocket into the pants leg, all the way to his an kle. The pants had drawstrings at the cuff s that prevented the it ems from falling out of the pants and onto the floor. Ap pellant presente d no evidence in his own behalf. The Commonweal th charged appe llant with violating Code § 18.2-94 by possessing "certain tools, implem ents, or outfit with the intent to ut ilize them to commit burglary , robbery, or larceny." Code § 18.2-94 pr ovides: If any person have in his possession any tools, implements or ou tfit, with intent to commit burglary, robber y or larceny, upon conviction thereof, he shall be guilty of a Class 5 felony. The possession of such burglarious tool s, implements or outfit by any person other than a licensed dealer, shall be prima facie evid ence of an intent to commit burglary, ro bbery or larceny. The Commonwealth cont ends that the baggy pants with the slit pocket and drawstring at appellant’s ankle area perm itted the fact finder to reason ably infer that the pants were prepared and worn into the store for the intended purpose to co mmit larceny and, as such, constitu ted an "outfit" under Code § 18.2-94. Appellant contends that be cause pants are no t commonly used to break into a structure, they we re not intended by the legislatur e to constitute an "outfit." We disagree. The term "outfit" is not de fined in Code § 18.2-94 or elsewhere in the Code. "Generally, th e words and phra ses used in

- 3 -a statute should be given their ordinary and us ually accepted meaning unless a different inte ntion is fairly manifest." Woolfolk v. Commonwealth , 18 Va. App. 840, 84 7, 447 S.E.2d 530, 534 (1994). The commonly acce pted definition s for the word "outfit" include (1) the act or process of fitting out or equipping, (2) material s, tools, or implem ents comprising the equipment nece ssary for carr ying out a particular project, and (3) wearing apparel designed to be wo rn on a special oc casion or in a particular situation. See Webster’s Third Ne w International Dictionary 1601 (1993). The judgment of a trial court wi ll be distur bed only if plainly wrong or without evid ence to su pport it. See Martin , 4 Va. App. at 443, 358 S. E.2d at 418. The inferences to be drawn from proven facts ar e matters sole ly for the fact finder’s determination. See Long v. Co mmonwealth , 8 Va. App. 19 4, 199, 379 S.E.2d 473, 476 (1989).

In Moss v. Co mmonwealth , 29 Va. App. 1, 509 S.E.2d 510 (1999), we rejected th e defendant’s as sertion that Co de § 18.2-94 only proscribed the po ssession of tools or implements used to commit burglary, noting that the statute "cri minalizes po ssession of 'tools, implem ents, or outfit' with th e intent to commit any one of three offens es, burglary, robbery or larceny." See id. at 3 n.1, 509 S.E.2d at 511 n.1 (quoting Code § 18.2-94). "Code § 18.2-94 requires proof that the offendin g tools, implements or

- 4 -outfit were intr insically 'bur glarious' only when the Commonwealth relies upon the statutory pres umption to establ ish the requisite criminal intent." Id. at 4-5, 509 S.E.2d at 512. A de fendant is still subject to convic tion under the statute if the Commonwealth can prove, independent of the st atutory presumpt ion, that the defendant poss essed a non-burglarious tool, implem ent, or outfit with the intent to commit larceny. See id. at 4, 509 S.E.2d at 511. An item of clothing that is alte red to facilita te shoplifting can reasonably be considered wearing appare l designed to be worn in a particular situation. See Webster’s Third Ne w International Dictionary at 1601. We hold , therefore, that a pair of pants can constitute an "out fit" as that term is used in Code § 18.2-94. A pair of pants is not ne cessarily "burgl arious," that is, it is not an item commonly used to break into a structur e. For that reason, to convict appell ant under Code § 18.2-94, the Common wealth was required to prov e that appellant possessed these pants with the intent to use them to commit larceny. See Moss , 29 Va. App. at 4, 509 S.E.2d at 511. "Because direct proo f of intent is often impossible, it must be shown by circumst antial evidence." Servis v. Commonwealth , 6 Va. App. 507, 524, 37 1 S.E.2d 156, 165 (198 8). "Circumstantial evidence is as compet ent and is entitled to as much weight as direct evidence, provided it is suffic iently convinci ng to exclude

- 5 -every reasonable hypothesis except that of guilt." Coleman v. Commonwealth , 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). But "[t]he Commonwealth ne ed only exclud e reasonable hypotheses of innocence that fl ow from the evid ence, not those th at spring from the imaginatio n of the defendant." Hamilton v. Commonwealth , 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993) . "Whether a hypothesis of in nocence is reasonable is a question of fact." Herrel v. Commonwealth , 28 Va. App. 579, 587, 507 S.E.2d 633, 637 (1998). All the tools, implements or outfits includ ed in Code § 18.2-94 may be, and usually are, designed and manufact ured for a lawful purpose. Me re possession thereo f is not a crime. Burnette v. Commonwealth , 194 Va. 785, 790, 75 S.E.2d 482, 485-86 (1953). It has been held, and Code § 18.2-94 provid es, that possession "shall be prima facie evidence of an intent to commit burglary, robbery or larceny." Nance v. Commonwealth , 203 Va. 428, 429, 124 S.E.2d 900, 90 1 (1962) (citation omitted). When viewed in it s entirety, th e record here discloses sufficient evidence to support the fi nding that appellant wore the baggy pants with the slit pocket and tied-off cuff s to facilitate his attempted sh oplifting. Th e record shows that appellant entered the grocer y store with no money or othe r means on his person to pay for the gum and that he looked about in a suspicious manner. He then plac ed two packs of Nicore tte gum, valued at

- 6 -$110, into the specia lly prepared pocket, which allowe d the gum packages to drop throug h the pocket down to the tied-off cuff of his pants, but not onto the floor. From the forego ing facts, the record supports the tr ial court’s judg ment that th e baggy pants with the slit pocket and tied-off cuffs cons tituted an "outfit" that was possessed by appellant with the inte nt to be used to commit larceny. For the reasons stated, we affirm the judgment of the trial

court. Affirmed.

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