COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, 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 Attorney General (Jerry W. Kilgore, 

Attorney General, on brief), for appellee. 

 The trial court found the appellant, 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 conviction and remand the case for retrial, if the Commonwealth is 

so advised, on the lesser-included offense of misdemeanor destruction of property under Code 

§ 18.2-137(B)(i). 

I. 

When examining a challenge to the sufficiency of the evidence on appeal, “the evidence 

and all reasonable inferences flowing therefrom must be viewed in the light most favorable to the 

prevailing party in the trial court.” 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 that of the Commonwealth, and regard as true all the credible evidence 
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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 Chevrolet 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, proceeded to a nearby field that 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 harvest.” Upon entering the field, Crowder “drove 

through” and “did donuts” in the crops. The truck, 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 driving in the field and drove his truck over to 

confront Crowder. Thomas and Crowder, seeing Joshua Cash approaching, departed from the 

field by “jumping a bank” onto the highway. Joshua 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 property 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 examination, the following colloquy occurred: 

Q. It’s been alleged that the damage 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 needs to ask him a question about the 

value, not suggest what the answer is. 
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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 the amount of damage that was done 

to your property, sir? 

A. Well, I figured — I had two — three 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 had not proved the “value of the crops.” The 

Commonwealth responded that Cash “had three 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 farmers “are capable” of estimating. Crowder objected 

and argued that these were facts not in evidence because 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, Crowder asked the Court to “incorporate” in his 

“closing arguments the comments that I made previously about the fair market value of the . . . 

crop.” The trial court again overruled the motion to strike and found Crowder guilty of felony 

destruction of property valued in excess of $1,000 under Code § 18.2-137(B)(ii). 
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II. 

When faced with a challenge to the sufficiency of the evidence, we “presume the 

judgment of the trial court to be correct” and reverse 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 decides 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 that 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 the 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 court does not “ask itself whether it believes that the 

evidence at the trial established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 

307, 318-19 (1979) (emphasis in original and citation 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 unreasonably, 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. 
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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 convicted offense). “This familiar standard gives 

full play to the responsibility of the trier of fact fairly to resolve 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 find that no rational factfinder could have found 

beyond a reasonable doubt that the Commonwealth proved the $1,000 threshold value element of 

the felony destruction of property 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 the 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 historical 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 the 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 opinion testimony of the 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 property 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 deemed qualified by reason of his 

relationship as owner to give estimates 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 (2000) (“We have recognized 

the general rule that an owner 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 the value of that property.”). 
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$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 testify4 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 figure. 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 two or three other farmers. Cash never said what those estimates 

were. Nor did Cash say whether those estimates confirmed the $1,000 allegation of the 

indictment or the $2,000 figure erroneously attributed by the prosecutor to the indictment. 

 By his silence, Cash may have implicitly agreed with the $2,000 figure. 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 finder of fact to conclude the 

existence of one fact from the proof of one or more other facts.” Carfagno v. Commonwealth, 39 

Va. App. 718, 727, 576 S.E.2d 765, 769 (2003) (citations 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 used, however, an inference may 

only extend a syllogism — not begin one. 

 4

 See Commonwealth v. Sluss, 14 Va. App. 601, 607, 419 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.”). 
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In short, from the record before us, no rational factfinder could conclude that the 

evidence proved beyond a reasonable doubt that the damage to Cash’s crop exceeded the $1,000 

required for a felony conviction 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 testimony 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 conviction 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 the sufficiency of the evidence on some (but 

not all) aspects of his conviction, we must determine if the proven 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 charge and a remand of the lesser charge for retrial — assuming 

the Commonwealth, in its prosecutorial 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 practice 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 “never established a particular 

figure for the valuation . . . .” We disagree. Crowder objected to the Commonwealth’s leading 

question regarding the quantum of damage, stating: “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 strike, Crowder argued that “the 

Commonwealth has not adequately demonstrated the fair market value of whatever they’re 

talking about here — a barley 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. 
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sustain a felony conviction on appeal, but sufficient to sustain a conviction on a lesser-included 

misdemeanor offense, has been to remand the case for retrial on the lesser-included offense”).7

III. 

 Finding the evidence insufficient to establish 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 element of the lesser-included offense of 

misdemeanor destruction of property 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 robbery and use of a firearm in the commission of 

robbery, and we remand for a new trial for larceny 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 remand 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 court for a new trial for assault and battery if the 

Commonwealth be so advised.”).