ANALYSIS OF MAY 27, 2008 CAV OPINION

 

[Posted May 27, 2008]  The Court of Appeals gives us one published opinion today, and it’s an interesting criminal case arising at a Chesterfield County department store.  A shopper entered the store carrying a purse that looked unusual in that it was apparently empty.  She gathered some merchandise and went into a fitting room.  Some time later, she emerged holding the purse, which by now obviously contained something.

 

It doesn’t take a legal rocket scientist to figure out what’s going on here – a loss prevention officer went into the dressing room and found empty hangers but no clothes.  The defendant was stopped outside the store with $156 worth of clothing in the purse.  She admitted that she had gone into the store to steal clothing.

 

So what’s the big appellate deal?  The Commonwealth wasn’t satisfied with charging her only with petit larceny, so it secured an indictment for possession of burglarious tools.  The empty purse, the prosecutor reasoned, was the tool (or more correctly, the outfit, since the statute criminalizes possession of “any tools, implements, or outfit, with intent to commit burglary”).  The trial court went along with that and convicted her of the larceny charge (a misdemeanor) and the possession charge (which is a Class 5 felony).

 

Now, I don’t know about you, but I’ve never heard of someone who got convicted of a felony for carrying an empty purse around, regardless of what her intent was.  Today, in Edwards v. Commonwealth , we get the Court of Appeals’ take on just how felonious this activity was.  The panel splits over this very interesting distinction, with two judges (Chief Judge Felton, joined by Judge Clements) deciding that a purse isn’t a tool, or an implement, or an outfit.

 

Obviously, clothing is, under one accepted definition, an outfit, but that isn’t the point here.  The court has previously upheld a conviction where a pair of pants had been altered (by adding internal pockets) to facilitate shoplifting, but the majority finds that a normal purse doesn’t meet that definition.  Judge Beales dissents, concluding that this purse was never used as a purse; it was solely carried as a device to conceal and carry away stolen merchandise.  Carrying this purse wasn’t mere accessorizing; it was a planned theft, and the purse was part of the defendant’s equipment.

 

On occasion, when my non-lawyer friends have occasion to tease me over something or other, I jokingly reply that one should never underestimate the creativity of a lawyer who has cause to wish you ill.  In a sense, this case illustrates that warning, as a very creative prosecutor managed to convince a judge that carrying this purse was a felony.  While this case might get appealed further – starting with a petition for en banc review – I think today’s ruling will hold up.  I cannot see a majority of the Court of Appeals, and certainly not a majority of the Supreme Court, sanctioning a felony conviction on these facts.  But that’s not my decision to make, of course.