COURT OF APPEALS OF VIRGINIA Present: Judges Annunz iata, Clements and Kelsey Argued at Salem, Virginia

RICHARD D. CROWDER, II OPINION BY v. Record No. 2423-02-3 JUDGE D. ARTHUR KELSEY NOVEMBER 12, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AUGUSTA COUNTY Thomas H. Wood, Judge Frankie C. Coyner for appellant. Eugene Murphy, Assistant Attorn ey General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

The trial court found the appe llant, Richard D. Crowder, II, guilty of felony destruction of property valued in excess of $1 ,000 under Code § 18.2 -137(B)(ii). On appeal, Crowder contends that no evidence proved that the value of the property destroyed exceeded $1,000. Agreeing with Crowder, we reverse the felony co nviction and remand the case for retrial, if the Commonwealth is so advised, on the lesser-included offense of misdemeanor de struction of property under Code § 18.2-137(B)(i).

I. When examining a challenge to the sufficien cy of the evidence on appeal, “the evidence

and all reasonable inferences flow ing therefrom must be viewed in the light most favorable to the prevailing party in the trial c ourt.” Commonwealth v. Hudson , 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citations omitted). That principle requires us to “discard the evidence of the

accused in conflict with th at of the Commonwealth, and regard as true all the credible evidence-2- favorable to the Commonwealth and all fair inferences that may be drawn therefrom.” Craddock

v. Commonwealth , 40 Va. App. 539, 542-43, 580 S.E.2d 454, 456 (2003) (citations omitted). On June 16, 2001, Crowder drove his brother’s new Chevro let ZR2 pickup truck to a party in Augusta County. After spending some time at the party, Crowder asked an acquaintance, Brian Thomas, if he would like to go for a ride in the new truck. Thomas agreed and the two men, with Crowder driving, proceede d to a nearby field th at was leased by Neil Cash. Cash raised barley in the field and, at the time Crowder drove into it, the barley was “within eight to ten days of being ready to ha rvest.” Upon entering the field, Crowder “drove through” and “did donuts” in the crops. The truc k, according to Cash, “just shattered the barley all over the ground” and left ruts in the ground. Cash’s son, Joshua Cash, saw the truck drivi ng in the field and drove his truck over to confront Crowder. Thomas and Crowder, seei ng Joshua Cash approaching, departed from the field by “jumping a bank” onto the highway. Jos hua Cash, however, obtained the license plate number from the truck and reported the incident to the sheriff. Deputies subsequently arrested Crowder, and a grand jury indicted him for feloniously causing damage “in excess of $1000.00 to propert y belonging to Neil Cash, in violation of Virginia Code Section 18.2-137.” During the bench trial, the Commonwealth called Neil Cash to testify regarding the damage to the property. On direct ex amination, the following colloquy occurred: Q. It’s been alleged that the da mage to your property was in the amount of $2,000.00.

MR. GARNETT: Judge, he’s going to have to question — put that in the form of a question. I — I think he just n eeds to ask him a question about the value, not suggest what the answer is.-3- MR. SMITH: Your Honor, the indictment read that the amount of damage was $2,000.00.

COURT:

I understand that. Go ahead. Q. How — how did you arrive at th e amount of damage that was done to your property, sir? A. Well, I figured — I had two — th ree other farmers there to come and give me an estimate on what they thought the property damage was. That’s taking into consideration plowing, working the ground, re-seeding. I put down grass seed. Now I’m going to have to go back and do it over because of the ruts and stuff in it.

At the conclusion of the Commonwealth’s case in chief, Crowder moved to strike the evidence on the ground that the Commonwealth ha d not proved the “value of the crops.” The Commonwealth responded that Cash “had thr ee independent estimates made by three other farmers who all are aware of value [sic] of barley ” and that “the value is based on fair market value,” which Cash and the three other farmer s “are capable” of estimating. Crowder objected and argued that these were facts not in evidence b ecause Cash never testified to the fair market value of the damaged crops as of the date of the incident. Nor did Cash adopt, Crowder contended, the $2,000 figure mistakenly cited by the prosecutor as the amount of damage alleged by the grand jury in the indictment. The trial court overruled the motion to strike. After neither party submitted further evidence regarding the value of the barley, Cr owder asked the Court to “incorporate” in his “closing arguments the comments that I made previously about the fa ir market value of the . . . crop.” The trial court again overruled the motion to strike and found Crow der guilty of felony destruction of property valued in ex cess of $1,000 under Code § 18.2-137(B)(ii).-4- II. When faced with a challenge to the suffici ency of the evidence, we “presume the judgment of the trial court to be correct” and revers e only if the trial court’ s decision is “plainly wrong or without evidence” to support it. Kelly v. Commonwealth , 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) ( en banc ) (citations omitted); see also McGee v. Commonwealth , 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) ( en banc ). When a jury decide s the case, Code § 8.01-680 requires that “we review the jury’s decision to see if reasonable jurors could have made the choices that the jury did make. We let the decision stand unless we conclude no rational juror could have reached th at decision.” Pease v. Commonwealth , 39 Va. App. 342, 355, 573 S.E.2d 272, 278 (2002) ( en banc ), aff’d , 2003 Va. LEXIS 95 (Va. Oct. 31, 2003) (per curiam). The same standard applies when a trial judge sits as th e factfinder because the “judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict.”

Cairns v. Commonwealth , 40 Va. App. 271, 293, 579 S.E.2d 340, 351 (2003) (citation omitted);

see also Shackleford v. Commonwealth , 262 Va. 196, 209, 547 S.E.2d 899, 906-07 (2001). 1 Put another way, a reviewing c ourt does not “ask itself whether it believes that the evidence at the trial established guilt be yond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 318-19 (1979) (emphasis in original and cita tion omitted). We must instead ask whether

“ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Kelly , 41 Va. App. at 257, 584 S.E.2d at 447 (quoting Jackson , 443 U.S. at 319 (emphasis in original)); see also Hoambrecker v. Commonwealth , 13 Va. App. 511, 514, 412

1 Unless the factfinder acted unr easonably, we consider it our duty not to “substitute our judgment for that of the trier of fact,” Kelly , 41 Va. App. at 257, 584 S.E.2d at 447 (citation omitted), “even were our opinion to differ,” Wactor v. Commonwealth , 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002) (citation omitted); see also Mohajer v. Commonwealth , 40 Va. App. 312, 321, 579 S.E.2d 359, 364 (2003) ( en banc ); Pease , 39 Va. App. at 355, 573 S.E.2d at 278.-5- S.E.2d 729, 731 (1992) (observing that the question on appeal is whether “a rational trier of fact

could have found the essential elements” of the c onvicted offense). “This familiar standard gives full play to the responsibility of the trier of fact fairly to reso lve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Kelly , 41 Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson , 443 U.S. at 319). 2 Governed by this standard of review, we fi nd that no rational factfi nder could have found beyond a reasonable doubt that the Commonwealth proved the $1,000 threshold value element of the felony destruction of prope rty charge under Code § 18.2-137(B) (ii). Though we agree with the Commonwealth that Cash, as the owner of the damaged crop, could have given an admissible lay opinion on its value, Lester v. Commonwealth , 30 Va. App. 495, 504-05, 518 S.E.2d 318, 322 (1999), 3 the fact is, he never did. At trial, the prosecutor took th e position that his interrupted attempt at a leading question on direct examination (“It’s been alleged that the damage to your property was in the amount of

2 This deference applies not only to the hist orical facts themselves, but the inferences from those facts as well. “The inferences to be drawn from proven facts, so long as they are reasonable, are within the province of th e trier of fact.” Hancock v. Commonwealth , 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991).

3 As we recently explained: It is generally recognized that the op inion testimony of th e owner of property, because of his relationship as owner, is competent and admissible on the question of the value of such property, regardless of his knowledge of pr operty values. It is not necessary to show that he was acquainted with the market value of such property or that he is an expert on values. He is d eemed qualified by reason of his relationship as owner to give estimat es of the value of what he owns. King v. King , 40 Va. App. 200, 212-13, 578 S.E.2d 806, 813 (2003) (quoting Haynes, Executrix v. Glenn , 197 Va. 746, 750, 91 S.E .2d 433, 436 (1956)); see also Snyder Plaza Prop., Inc. v. Adams Outdoor Ad., Inc. , 259 Va. 635, 644, 528 S.E.2d 452, 458 (200 0) (“We have recognized the general rule that an owne r of property is competent and qualified to render a lay opinion regarding the value of that property.”); Parker v. Commonwealth , 254 Va. 118, 121, 489 S.E.2d 482, 483 (1997) (“The opinion testimony of the owner of the stolen item generally is competent and admissible on the issue of th e value of that property.”).-6- $2,000.”), coupled with his mistaken description of the indictment (“Your Honor, the indictment read that the amount of damage was $2,000.00.”) , somehow established $2,000 as the damage estimate. Suffice it to say, however, counsel cannot testify 4 and indictments are not evidence. 5 True, admissible or not, the prosecutor’s comments about the $2,000 figure could have been adopted by Cash in his testimony absent a valid objection. Cash, however, was never asked if he agreed with the $2,000 fi gure. The only question asked of Cash was “How — how did you arrive at the amount of damage that was done to your property, sir?” His elliptic reply was that

he had obtained estimates from tw o or three other farmers. Cash never said what those estimates were. Nor did Cash say whether those estim ates confirmed the $1,000 allegation of the indictment or the $2,000 figure erroneously attr ibuted by the prosecutor to the indictment. By his silence, Cash may have implicitly agreed with the $2,000 fi gure. But to accept this supposition as a substitute for evidence, in our judgment, pushes the concept of reasonable

inferences into the realm of non sequitur . An inference “permits a find er of fact to conclude the

existence of one fact from th e proof of one or more other facts.” Carfagno v. Commonwealth , 39 Va. App. 718, 727, 576 S.E.2d 765, 769 (2003) (citat ions and quotation marks omitted). It allows a factfinder to reason “from basic facts to ultimate facts.” Kelly , 41 Va. App. at 257-58, 584 S.E.2d at 447 (quoting Jackson , 443 U.S. at 319). Properly us ed, however, an inference may only extend a syllogism — not begin one.

4 See Commonwealth v. Sluss , 14 Va. App. 601, 607, 4 19 S.E.2d 263, 267 (1992) (“Representations by counsel are not evidence that a court may properly consider.”); Graves v. Graves , 4 Va. App. 326, 332, 357 S.E.2d 554, 558 (1987) (“ Mere representations by counsel are not evidence.”).

5 See Swift v. Commonwealth , 199 Va. 420, 425, 100 S.E.2d 9, 13 (1957) (“It is elementary that the issuance of a warrant or the return of an indictment by a grand jury is not evidence of the guilt of the accused.”).-7- In short, from the record before us, no ra tional factfinder coul d conclude that the evidence proved beyond a reasonable doubt that the damage to Cash’s crop exceeded the $1,000 required for a felony convicti on under Code § 18.2-137(B)(ii). 6 For this reason, we reverse

Crowder’s conviction. That said, we disagree with Crowder’s assertion that a reversal precludes further proceedings against him. The trial court in this case specifically found that Cash’s crop sustained economic damage. Though we find no te stimony measuring that damage in excess of $1,000, Cash clearly testified that some measurable damage occurred to the crop. Thus, the

Commonwealth made a sufficient showing for a misdemeanor convi ction for the lesser-included charge of intentional property damage under Code § 18.2-137(B)(i), which requires no threshold damage value. When an appellant successfully challenges th e sufficiency of the evidence on some (but not all) aspects of his convicti on, we must determine if the pr oven elements of the original charge qualify as a lesser-included offense. If so , the appropriate remedy on appeal is a reversal of the conviction on the greater ch arge and a remand of the lesser charge for retrial — assuming the Commonwealth, in its prosecuto rial discretion, chooses to go forward on the lesser charge.

See generally Gorham v. Commonwealth , 15 Va. App. 673, 678, 426 S.E.2d 493, 496 (1993) (observing that the “consistent pr actice in Virginia, when the evidence is found insufficient to

6 The Commonwealth contends that Crowder waived this argument under Rule 5A:18 because he did not specifically object that the Commonwealth “n ever established a particular figure for the valuation . . . .” We disagree. Crowder objected to the Commonwealth’s leading question regarding the quantum of damage, stati ng: “Judge, he’s going to have to question — put that in the form of a question. I — I think he just needs to ask him a question about the value, not suggest what the answer is.” Later, during his motion to st rike, Crowder argued that “the Commonwealth has not adequately demonstrated the fair market value of whatever they’re talking about here — a ba rley field, on the date that this gentleman is — the date that they’re talking about.” At the end of the trial, Crowder renewed his motion to strike, asking the court to “incorporate in my closing arguments the comments that I made previously about the fair market value of the — of the crop.” Thus we find that Crowder properly preserved this issue for appeal.-8- sustain a felony conviction on appeal, but suffici ent to sustain a conviction on a lesser-included misdemeanor offense, has been to remand the case for retrial on the le sser-included offense”). 7

III. Finding the evidence insufficient to estab lish the statutory $1,000 threshold, we reverse Crowder’s conviction for felony destruction of property under Code § 18.2-137(B)(ii). Because the evidence sufficiently establishes every el ement of the lesser-included offense of misdemeanor destruction of pr operty under Code § 18.2-137(B)(i), we remand this matter for

retrial if the Commonwealth be so advised.

Reversed and remanded

.

7 See , e.g. , Jones v. Commonwealth , 39 Va. App. 545, 549, 574 S.E.2d 767, 768 (2003) (“Accordingly, we reverse the convictions for ro bbery and use of a firearm in the commission of robbery, and we remand for a new trial for la rceny if the Commonwealth be so advised.”); Woodard v. Commonwealth , 27 Va. App. 405, 410, 499 S.E.2d 557, 559-60 (1998) (“Accordingly, we reverse the conviction and re mand the case for a new trial for assault and battery, if the Commonwealth be so advised.”); Johnson v. Commonwealth , 5 Va. App. 529, 535, 365 S.E.2d 237, 240 (1988) (“Accordingly, we reverse and vacate the conviction for aggravated sexual battery and remand this case to the trial cour t for a new trial for assault and battery if the Commonwealth be so advised.”).