COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Clements 

Argued at Richmond, Virginia 

MARIO CHEROME BRIGGS 

 MEMORANDUM OPINION* BY 

v. Record No. 2917-99-2 JUDGE JEAN HARRISON CLEMENTS 

 JANUARY 30, 2001 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF COLONIAL HEIGHTS 

John F. Daffron, Jr., Judge 

 William B. Bray (Perry & Bray, on brief), for 

appellant. 

 Amy L. Marshall, Assistant Attorney General 

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

for appellee. 

 Appellant, Mario Cherome Briggs, was convicted in a bench 

trial of grand larceny in violation of Code § 18.2-95. On appeal 

he contends the evidence was not sufficient to sustain the 

conviction. We disagree and affirm the conviction. 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, this opinion recites only those facts necessary to a 

disposition of this appeal. 

 Briggs claims that the Commonwealth failed to prove beyond 

a reasonable doubt that he was guilty of grand larceny. His 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
argument in support of that claim is threefold. First, he 

argues that the evidence presented at trial was insufficient to 

show that the value of the clothing stolen from Hecht's 

Department Store was $200 or more. Second, he contends that the 

evidence was insufficient to establish that he possessed the 

requisite intent and knowledge to commit the larceny of all five 

items of merchandise, which would have been necessary to bring 

the value of the merchandise stolen to $200 or more. Third, he 

asserts that the evidence was insufficient to prove that the 

taking of the subject merchandise occurred without the consent 

or authority of the store, a necessary element of the offense of 

larceny. 

 When the sufficiency of the evidence is challenged on 

appeal, we must consider the evidence "in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Bright v. Commonwealth, 

4 Va. App. 248, 250, 356 S.E.2d 443, 444 (1987). In addition, 

the "credibility of a witness, the weight accorded the 

testimony, and the inferences to be drawn from proven facts are 

matters solely for the factfinder's determination." Keyes v. 

City of Virginia Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 

767 (1993). Furthermore, a conviction will not be reversed 

unless "it appears from the evidence that it is plainly wrong or 

without evidence to support it." Sutphin v. Commonwealth, 1 Va. 

App. 241, 243, 337 S.E.2d 897, 898 (1985). 

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A. VALUE OF THE STOLEN MERCHANDISE 

 Appellant maintains that, because the stolen clothes could 

have been on sale and thus not worth $200, the Commonwealth 

failed to prove the offense of grand larceny. 

 Grand larceny consists of the theft not from the person of 

another of goods and chattels valued at $200 or more. See Code 

§ 18.2-95(ii). "The value of the goods specified in the statute 

is an essential element of the crime, and the Commonwealth must 

prove that element beyond a reasonable doubt." Walls v. 

Commonwealth, 248 Va. 480, 481, 450 S.E.2d 363, 364 (1994). 

"The value of the stolen property is measured as of the time of 

the theft . . . ." Parker v. Commonwealth, 254 Va. 118, 121, 

489 S.E.2d 482, 483 (1997). 

 Here, the Commonwealth presented evidence of the value of 

the goods through the testimony of Albert Bell, the security 

manager at the Hecht's store where the theft occurred. Bell, 

who had the stolen merchandise with him in court, testified to 

the value of the five items stolen based on the store's price 

tags affixed to those items. They ranged in price from $31.99 

to $49.99 and totaled $212.95 in value. A photograph of the 

stolen goods was admitted into evidence in substitution for the 

items themselves so that they could be returned to the store. 

 On cross-examination, Bell admitted that, if any of the 

items were on sale at the time of the theft, their values would 

have been less than the prices marked on the tags. The sale 

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prices would have rung up on the register and would not have 

been reflected on the tags themselves. Bell, however, was not 

asked by the defense, and thus did not indicate, whether or not 

the stolen items were on sale when the theft occurred. 

Moreover, Briggs presented no other evidence to show that the 

stolen items were on sale as of the time of the theft. 

 In Robinson v. Commonwealth, 258 Va. 3, 516 S.E.2d 475 

(1999), the Supreme Court recognized an exception to the hearsay 

rule allowing the admission in shoplifting cases of price tags 

affixed to items of merchandise as evidence to prove the value 

of that merchandise. "[S]uch evidence, when admitted," the 

Court stated, "would suffice to make out a prima facie case of 

an item's value [and] the accused would retain full opportunity 

to cross-examine adverse witnesses and to present rebutting 

evidence on the issue of value." Id. at 10, 516 S.E.2d at 479. 

 Applying this principle, we find that the Commonwealth's 

evidence based on the price tags affixed to the stolen items in 

this case was sufficient to make out a prima facie case of the 

value of the stolen merchandise. As Briggs presented no 

evidence to rebut the Commonwealth's prima facie case of the 

stolen merchandise's value, we find that the evidence presented 

was sufficient to prove that the value of the items was $200 or 

more. 

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B. APPELLANT'S INVOLVEMENT IN THE LARCENY 

 Appellant also maintains that the evidence presented by the 

Commonwealth was insufficient to prove that he actually stole 

the merchandise in question. According to him, he was nothing 

more than an innocent bystander while Alonzo Battle alone 

concealed the five articles of clothing and removed them from 

the store without paying for them. The evidence, he suggests, 

proved only that he happened to be in the same section of the 

store at the same time as Battle, a man he did not know, and 

that he coincidentally handled two of the items eventually taken 

by Battle. 

 He further argues that, even if the evidence was somehow 

sufficient to show that he participated in the theft of the two 

items he handled, it certainly did not establish that he had the 

requisite knowledge and intent to steal all five items. The 

evidence, he asserts, connects him at most to only two of the 

stolen items and does not prove that he knew Battle was going to 

steal any of the items rather than pay for them. 

 As appellant correctly notes, his conviction depended on 

the Commonwealth being able to prove beyond a reasonable doubt 

that he was guilty of the theft of all five articles of 

clothing. Anything less than that would have brought the value 

of the stolen property under $200 and would not have constituted 

grand larceny. 

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 The Commonwealth asserts that its evidence clearly 

established that Briggs was acting in concert with Battle and 

that he aided and abetted Battle in the larceny of all of the 

stolen clothing. As a principal in the second degree, he had, 

the Commonwealth argues, the requisite knowledge and intent to 

commit the crime. 

 "The intent required to commit larceny, the animus furandi, 

is defined as the taking of property with the mental design of 

permanently depriving the owner of possession of the goods. 

'The animus furandi must accompany the taking, but the wrongful 

taking of property in itself imports the animus furandi.'" 

Saunders v. Commonwealth, 18 Va. App. 825, 828, 447 S.E.2d 526, 

528 (1994) (citations omitted) (quoting Dunlavey v. 

Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)). 

 Here, it is undisputed that Battle removed clothing 

belonging to Hecht's Department Store from the store without 

paying for it. Because it was Battle, rather than Briggs, who 

physically completed the asportation of the clothing, the 

Commonwealth had to prove that Briggs was a principal in the 

second degree in order to obtain a conviction against him for 

grand larceny. See Allard v. Commonwealth, 24 Va. App. 57, 62, 

480 S.E.2d 139, 141 (1997) (noting that a principal in the 

second degree may be convicted and punished as if a principal in 

the first degree). To prove that Briggs was a principal in the 

second degree, the Commonwealth had to demonstrate that Briggs 

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was present during the offense and aided and abetted Battle in 

the crime. See Rollston v. Commonwealth, 11 Va. App. 535, 539, 

399 S.E.2d 823, 825 (1991). 

 In determining whether the Commonwealth's evidence was 

sufficient to establish that Briggs aided and abetted Battle, we 

are mindful that the mere presence and consent of the accused 

are not enough to constitute "aiding and abetting." Id. It 

must be shown that the alleged accomplice committed some overt 

act of assistance or encouragement or that he shared the 

criminal intent of the actual perpetrator. Id. However, 

[n]otwithstanding these rules as to the 

nonliability of a passive spectator, it is 

certain that proof that a person is present 

at the commission of a crime without 

disapproving or opposing it, is evidence 

from which, in connection with other 

circumstances, it is competent for the 

[trier of fact] to infer that he assented 

thereto, lent to it his countenance and 

approval, and was thereby aiding and 

abetting the same. 

Foster v. Commonwealth, 179 Va. 96, 99-100, 18 S.E.2d 314, 316 

(1942) (quotations omitted). 

 Viewing the record with these principles in mind, we find 

the evidence sufficient to prove that Briggs was indeed a 

principal in the second degree in the commission of the subject 

larceny. Bell, the store's security manager, observed via 

closed-circuit television Battle and the accused interacting in 

the young men's department of the store. He saw Briggs take a 

red shirt off a rack and hand it to Battle. Battle then removed 

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the shirt from its hanger and put it into a plastic shopping bag 

from Sears. Bell further observed Briggs selecting or handling 

other items which Battle then placed in the Sears bag. Soon 

thereafter, Bell observed Battle and Briggs leave the store 

without paying for the merchandise. Battle, who exited the 

store first, was carrying the Sears bag containing the five 

stolen pieces of clothes when he was stopped by Bell. Briggs 

exited the store soon afterwards and was also detained by Bell. 

 The Commonwealth also introduced into evidence a video 

recording from the store's closed-circuit monitoring system that 

vividly reveals much of what Bell observed. That video, despite 

its periodic loss of image due to tape damage, leaves no doubt 

that Briggs and Battle were acting in concert. It shows them 

walking together in the store, frequently stopping together to 

view and discuss particular pieces of apparel, repeatedly 

examining and handling the anti-theft devices on the clothes, 

and then selecting, gathering, and concealing the various items 

they intended to steal. 

 Contrary to Briggs's assertion that he did not even know 

Battle, when Briggs is first seen on the videotape, he is the 

one carrying the Sears bag. The video also later shows him 

handing Battle a red shirt, which Battle proceeds to roll up and 

put in the Sears bag, all while Briggs looks on. The tape 

further shows Battle placing a sweatshirt that Briggs had just 

handled into the bag while Briggs stands nearby watching. The 

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two men are then seen exiting the store together, albeit Briggs 

walking several conspicuous paces behind Battle. 

 Throughout the video, Briggs and Battle are clearly working 

together. Briggs was not, as he claims, merely a passive 

shopper who had nothing to do with this crime. He aided and 

abetted Battle in the crime and plainly intended to steal the 

clothing from Hecht's. 

 As for Briggs's argument that, even assuming he helped 

steal the red shirt and sweatshirt, the evidence is insufficient 

to prove that he stole merchandise totaling $200 or more, we 

find that such a contention is without merit. Between Bell's 

testimony and the videotape, there is ample evidence to support 

the reasonable inference by the trial court that all of the 

merchandise recovered by Bell from the Sears bag was stolen by 

both Battle and Briggs. Furthermore, because he was a principal 

in the second degree acting in concert with Battle, Briggs is 

vicariously responsible for Battle's acts occurring during the 

commission of the crime. See Fitzgerald v. Commonwealth, 227 

Va. 171, 174-75, 313 S.E.2d 394, 396 (1984); Spradlin v. 

Commonwealth, 195 Va. 523, 527-28, 79 S.E.2d 443, 445 (1954). 

Thus, it is immaterial whether or not there is direct evidence 

specifically connecting Briggs to all five of the stolen items. 

He is culpable for them nonetheless. 

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C. LACK OF CONSENT OR AUTHORITY 

 Appellant further contends that the record does not show 

that Battle and Briggs lacked the store's authority and consent 

to remove the clothing in question from the store's premises. 

Therefore, the evidence presented by the Commonwealth is 

insufficient to prove he committed larceny, Briggs argues. 

 Larceny is the "wrongful or fraudulent taking of personal 

goods of some intrinsic value, belonging to another, without his 

assent, and with the intention to deprive the owner thereof 

permanently." Dunlavey v. Commonwealth, 184 Va. 521, 524, 35 

S.E.2d 763, 764 (1945). 

 Here, the evidence established that, while in Hecht's 

Department Store, Battle, aided and abetted by Briggs, took 

items of clothing that were on display and for sale in the young 

men's department and placed them into a plastic shopping bag 

from Sears. In at least two instances, he attempted to remove 

anti-theft devices from the store's merchandise. Battle then 

left the store carrying the bag filled with Hecht's clothes 

without paying for the merchandise. He was stopped outside the 

store by Hecht's security manager who testified at trial that 

Battle had "[f]ive items belonging to Hecht's Department Store" 

in the Sears bag. All of the items had Hecht's price tags on 

them, and none of them had been paid for by Battle or Briggs. 

Briggs offered no evidence at trial to show that he and Battle 

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had permission to remove the merchandise from Hecht's without 

paying for it. 

 We find that the trial court was entitled to infer from 

this evidence that Battle and Briggs removed the clothing from 

the store's premises without the assent of the store. 

 Hence, we conclude that the evidence presented in this case 

sufficiently supports appellant's grand larceny conviction and 

that the conviction is not plainly wrong. Accordingly, we 

affirm the conviction. 

 Affirmed. 

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