COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

Argued at Alexandria, Virginia 

FRANCES DENISE HINNANT 

 MEMORANDUM OPINION* BY 

v. 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. 
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 For these reasons, I would reverse the conviction and remand 

for a new trial.