Any lawyer who goes to trial without a typed or written checklist of elements needed to prove the case, is playing with fire. Perhaps the prosecutor against James Leo Frango omitted such a checklist, or prepared a wrong checklist, did not follow the checklist, or simply had insufficient evidence to prove the value element, in prosecuting Mr. Frango for felony theft of his neighbor’s timber. Frango v. Com., ___ Va. App. ___ (Feb. 23, 2016).

In Virginia, the felony theft threshold is $200. Setting aside the injustice of such a low threshold for distinguishing between facing up to a year in jail for misdemeanor theft and twenty years for felony theft, the prosecutor must prove that $200 value threshold beyond a reasonable doubt. That burden never gets shifted.

James Frango got his felony theft conviction reversed for felony theft of timber, because the prosecutor never offered any evidence of value during the Circuit Court bench trial against Frango.

For whatever reason, the prosecutor did not also charge Frango with misdemeanor theft, thus leaving the Virginia Court of Appeals to order a retrial for misdemeanor theft alone, because Frango did not agree simply to be resentenced, for misdemeanor theft. Frango’s refusal simply to be resentenced makes sense, not only because he now has a second chance to fight to win, but also because the trial judge originally gave him a substantial sentence, so may be ready to substantially sentence if Frango loses at retrial.

A cause for concern is why the trial judge even allowed a felony theft conviction in the first place, where the prosecutor offered no evidence that the allegedly stolen timber was worth at least $200. The factfinder’s role is not to fill in such blanks, but for the prosecutor to prove value beyond a reasonable doubt for a felony theft prosecution. Frango.