The author, Marina Medvin, is a passionate trial attorney who focuses her practice exclusively on criminal defense. She advocates for her clients in Federal and Virginia State courthouses on a daily basis. Ms. Medvin is presently accepting clients for criminal cases pending in Alexandria, Fairfax, Arlington, Falls Church, Prince William, and in the United States District Court for the Eastern District of Virginia in Alexandria.

WHAT IS LARCENY?
Larceny is simply the crime of theft. Virginia courts define larceny as the wrongful or fraudulent taking of things of value, belonging to another, without that person or business’ consent, and with the intention to permanently deprive that person or business of the value of the items taken. Grand Larceny is a felony. Petit Larceny is a misdemeanor. They are divided by the value of the items stolen.

MISDEMEANOR LARCENY
To be charged or arrested for misdemeanor Larceny, you must have done one of the following acts:
(1) Larceny of goods or things from a place worth less than $200, or
(2) Larceny of money or things directly off the body of a person worth less than $5
Misdemeanor Larceny is punished under Virginia VA Code Section 18.2-96 as a Class 1 misdemeanor. The maximum punishment for this crime is twelve months in jail with a $2,500.00 fine.

PUNISHMENT ENHANCEMENT FOR SUBSEQUENT MISDEMEANOR LARCENY CONVICTIONS
Second Misdemeanor Larceny Offense: VA Code Section 18.2-104 creates a punishment enhancement for a prior larceny record, mandating a 30 day minimum jail sentence as part of the penalty for a second conviction.

3 Strikes Rule
Third Misdemeanor Larceny Offense: A third misdemeanor larceny conviction is upgraded to a Class 6 Felony, even though the value of the goods stolen is under $200. This charge will also be accompanied by a 30 day minimum jail sentence.

Because of the punishment enhancements for any subsequent larceny convictions, it is important for you to make sure that you are comfortable with your defense and/or plea of guilt to any first larceny offense – as no one really knows what the future might bring.

FELONY LARCENY – GRAND LARCENY
Virginia Felony larceny is known as Grand Larceny, and can be one of three acts:
(1) Larceny of things from a place worth $200 or more, or
(2) Larceny of things from the body of a person worth $5 or more, or
(3) Larceny of a firearm or gun, regardless of the value

Grand larceny is punished by VA Code Section 18.2-95. You face up to 20 years in prison with a conviction.

PENALTY ENHANCEMENT FOR GRAND LARCENY WITH INTENT TO RESELL THE MERCHANDISE
Grand larceny with intent to resell the merchandise carries a minimum prison penalty of 2 years! VA Code Section 18.2-108.01 states that when more than one of the same item is stolen in the course of a grand larceny, that is direct evidence of intent to resell those items.

SHOPLIFTING / CONCEALING MERCHANDISE
Shoplifting is a larceny. The reason why it has its own code section in the law books is that the wording in the law makes it easier to convict someone of shoplifting based on certain conduct explained further below.

Virginia Code Section 18.2-103 separates a felony from a misdemeanor shoplifting charge based on the value of the merchandise involved, with shoplifting of items valued $200.00 or more constituting a felony offense, while taking items valued below that would be a misdemeanor charge.

Shoplifting is defined as the taking merchandise from a store without permission and with the intention of making the merchandise your own without having paid the full purchase price; or simply by defrauding the owner of the value of the goods or merchandise – which means paying less for it than the merchant was asking without the merchant’s permission. Thus, shoplifting can be either walking out with unpaid merchandise, changing price tags or stickers on merchandise, or paying a lesser price for merchandise without negotiating with the owner.

Specifically, the Virginia Code criminalizes the following acts as shoplifting:
(1) purposely hiding, concealing or taking merchandise in a store,
(2) altering the price tag or other price marking on merchandise,
(3) transferring items from one container to another.

CAN I BE DETAINED BY STORE SECURITY IF SUSPECTED OF SHOPLIFTING?
In short, yes. Virginia Law 18.2-105.1 permits a merchant, agent or employee of the merchant, who has probable cause to believe that you shoplifted in violation of § 18.2-95 or § 18.2-96 or § 18.2-103, on the premises of that merchant, may detain you for a period not to exceed one hour pending arrival of a law-enforcement officer.

WHAT EVIDENCE / PROOF WILL BE INTRODUCED IN COURT AGAINST ME?
A witness who saw you with the stolen items might testify against you, a store employee may testify against you, video surveillance will be introduced in court, and the value of the stolen items will be calculated for the judge.

Generally speaking, walking past the point of the cash registers with unpaid merchandise is enough to invoke an inference of intent to steal.

For shoplifting, hiding merchandise while you are still in the store is enough for a conviction in Virginia because it is considered direct evidence of your intent to steal the merchandise or defraud the owner of the sticker price value. The Court explained in the famous case of Welch v. Commonwealth that as long as the item is in the possession or personal control of an unauthorized person, who acts in a manner that is inconsistent with an actual possible purchaser, he can be guilty of larceny without actually leaving the premises of a store.

Proof or evidence of larceny can simply be a person’s unexplained possession of the stolen items. The famous case of Bright v. Commonwealth of Virginia stated that unexplained possession of stolen property permits the courts to make an inference that the owner of the stolen property is the person who committed the larceny of that property.

REDUCING A FELONY LARCENY TO A MISDEMEANOR
Since the value of the items tends to be the reason for a larceny being charged as a felony instead of a misdemeanor, a good lawyer can successfully argue that value in a case is uncertain, or due to other convincing circumstances, a felony should be reduced to a misdemeanor with minimal or no jail time.

STATUTE OF LIMITATIONS ON PROSECUTION OF LARCENY CRIMES AND GRAND LARCENY CRIMES
While the general statute of limitations on misdemeanor offenses is 1 year from the date of the crime, Virginia VA Code Section 19.2-8 extends the prosecution of misdemeanor larceny offenses to 5 years from the date of the crime. Grand larceny, as a felony, is not subject to a statute of limitations in Virginia.

EMBEZZLEMENT
Embezzlement can be simply defined as a theft that took place while the offender was entrusted with someone else’s property. This theft does not need to benefit the embezzler, it can benefit some other person. Virginia VA Code Section 18.2-111 criminalizes any use, disposing, concealing or embezzling of the property. An employee-employer relationship is the most common form of trust that is subject of an embezzlement case.

UNAUTHORIZED USE OF VEHICLE
Borrowing a vehicle, an animal, boat, or aircraft, without permission, even though you planned to return it and never intended to steal it, can land you with a larceny charge under Virginia VA Code Section 18.2-102. This punishes a temporary deprivation of personal property as grand-larceny or as larceny, depending on the value of the item borrowed. The borrower must have known that he was borrowing the car without permission. Just because consent or permission to use was granted by the owner on a previous occasion, such consent will not be implied in defense of the accused. Anyone who assists or acts as an accomplice will be responsible for the crime as if he or she acted as the principal offender and will be punished as the primary offender.

While normally you cannot be charged with larceny if you plan to return the item you took – BUT this code makes an exception to this general rule for: animals, aircraft, vehicles, boats and vessels. Temporarily borrowing these items amount to larcenies under Virginia law.

CREDIT CARD AND CREDIT CARD NUMBER THEFT
If you obtain another person’s credit card or credit card number, without their knowledge or consent; or, even if you just receive or buy the credit card or credit card number from someone without personally stealing it but you intend to use it or sell it, or to transfer it to a person other than the issuer or the cardholder, you are responsible for the larceny under Virginia VA Code Section 18.2-192. Same goes for keeping a credit card or credit card number that you know was lost, mislaid, or delivered but still retain possession of it with intent to use it, to sell it, or to transfer the credit card or credit card number to a person other than the issuer or the cardholder. Under Virginia VA Code Section 18.2-194, possession of 2 or more credit cards, or 2 or more credit card numbers, which don’t rightfully belong to you is primary evidence that in fact you violated Virginia VA Code Section 18.2-192.

All credit card theft offenses are punished as grand larcenies in Virginia, regardless of whether they are below $200.

CHARGING FRIENDS OF THIEVES & ACCOMPLICES
First, any person who was counseling, assisting, aiding or abetting another person who committed a shoplifting offense as per Virginia VA Code Section 18.2-103, is guilty of the exact same crime as the person who actually does the shoplifting under the same Virginia Code Section.

Second, any person who receives, conceals, or hides stolen property from/for someone who stole that property, and knows that it was stolen, can be charged with larceny under Virginia VA Code Section 18.2-108. Furthermore, even in the thief doesn’t get convicted of the larceny, the friend who hid the stolen property can still be found guilty of a larceny of that property! Additionally, even if you knowingly buy stolen property, you can be guilty of a larceny.

Third, any person who assists in the transportation or disposition of stolen property, knowing that it was stolen, is also guilty of larceny. See Moehring v. Com.

Fourth, conspiring, advising, or helping someone in any way to commit a grand larceny, will also be responsible for the grand larceny and will have to serve between 1 and 20 years in prison as punishment for the crime under Virginia VA Code Section 18.2-23.

POSSESSION OF BURGLARIOUS TOOLS
Possession of burglarious tools may be a more serious offense than the actual crime! While a larceny is either a misdemeanor or a felony, possession of burglarious tools is a Class 5 felony. To be guilty, you need to have in your possession any kind of tools, implements or outfits while intending to commit burglary, robbery or larceny. What’s worse, is that under Virginia VA Code Section 18.2-94, possession of these tools is primary evidence of your intent to commit the underlying larceny crime as well.

IDENTITY THEFT
Virginia law criminalizes the use, distribution, and sale of identifying information of another person without their permission. Identifying information is explained as (but not limited to):
(i) name; (ii) date of birth; (iii) social security number; (iv) driver’s license number; (v) bank account numbers; (vi) credit or debit card numbers; (vii) personal identification numbers (PIN); (viii) electronic identification codes; (ix) automated or electronic signatures; (x) biometric data; (xi) fingerprints; (xii) passwords; or (xiii) any other numbers or information that can be used to access a person’s financial resources, obtain identification, act as identification, or obtain money, credit, loans, goods or services.

VA Code Section 18.2-186.3 specifically names the following intentional acts as identity theft:
1. Obtain, record or access identifying information which is not available to the general public that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of such other person;
2. Obtain money, credit, loans, goods or services through the use of identifying information of such other person;
3. Obtain identification documents in such other person’s name; or
4. Obtain, record or access identifying information while impersonating a law-enforcement officer or an official of the government of the Commonwealth.

Identity theft is punishable as a Class 1 misdemeanor when the value of the theft is under $200.00 – the same penalty as for any other larceny charges. When the identity theft results in an amount greater than $200.00, it is a Class 6 felony – identical to a grand larceny. The main difference between regular theft and identity theft is in the realm of repeat offenses. A second or subsequent conviction for identity theft is always punishable as a Class 6 felony – which means that you always face a maximum of 5 years in prison for a second offense.

Additional punishment enhancements for identity theft include:
(1) If you attempt to sell or distribute 5 or more persons’ identifying information which was obtained in the same transaction or occurrence, the crime will be punishable as a Class 6 felony regardless of the value of the theft.
(2) If you attempt to sell or distribute 50 or more persons’ identifying information which was obtained in the same transaction or occurrence, the crime will be punishable as a Class 5 felony regardless of the value of the theft.
(3) If you committed the identity theft to avoid summons, arrest, prosecution, or to impede a criminal investigation, the theft is always a Class 6 felony.

STEALING ANIMALS
Because animals and pets are deemed property in Virginia, stealing them amounts to a larceny. Killing animals, taking them from their owners, or hurting them provides the an additional civil cause of action against the perpetrator under Virginia VA Code Section 3.2-6585, as a separate recourse from criminal larceny or criminal trespass. Animal larceny depends on the particular animal stolen. Larceny of a dog, horse, pony, mule, cow, steer, bull or calf is a Class 5 Felony under Virginia VA Code Section 18.2-97, which is a higher level crime than general Grand Larceny. Thus, a stolen dog is a much higher crime than theft of other household pets, including cats.

ROBBERY
Robbery is a grand larceny as explained above, but with an added element of force, violence, or intimidation. Robbery is defined as the taking of personal property of another, intending to steal it, in the presence of the victim, by use of some kind of violence. Examples can be using an object of force such as a knife, gun or firearm, or baseball bat; or using other force such as strangulation, beating or hitting or kicking, suffocation, or even just a threat of violence. Robbery is a very serious Felony and can be punished by up to life in prison. All cases related to robbery offenses need to be discussed with an attorney as soon as they are charged.

Virginia law does not require that the victim actually own the property or object that was robbed – just that the victim’s rights to that object were somehow superior to that of the robber. As for the crucial intimidation element of the offense – all that is required is that the victim feared the accused would cause her/him hard. The fear must come from either the robber’s words or conduct. As such, the prosecution does not need to show that the fear was reasonable from an objective viewpoint, just that the particular victim feared bodily injury during the incident.

HOME BURGLARY
Burglary is a larceny that takes place within someone’s home. Virginia law provides extra penalties for breaking and entering into a home. It is important to understand that someone’s home is their place of safety and breaking that safety seal by entering the home is regarded as an outrageous crime. Thus, Virginia law on burglary has the following elements in Virginia VA Code Section 18.2-89: you must break and enter someone else’s home, at night, intending to commit theft (larceny) or a felony (such as robbery, rape, arson, murder, etc.). This is a Class 3 felony, so you can face between 5 and 20 years in prison and may have to pay a $100,000.00 fine. If you use a deadly weapon at the time of the break-in (such as a gun), the crime gets bumped up to a Class 2 felony – which means you can face life in prison.

Virginia law separates day-time home burglaries form nighttime ones with Virginia VA Code Section 18.2-90 and Virginia VA Code Section 18.2-91. If you break and enter during the day, with intent to commit murder, rape, robbery or arson, the punishment is the same as described above. But, if the burglary occurs during the day with intent to commit larceny, assault and battery or a felony not mentioned in this paragraph, then the punishment, while still may be a maximum of 20 years, does not have a 5 year floor. Nonetheless, use of a deadly weapon, regardless of the crime you intend to commit while breaking into someone’s home, will always land you with a Class 2 felony and a possible life sentence.

Pitts v. Commonwealth, Va: Court of Appeals 2011

On appeal from his felony conviction of third offense petit larceny in violation of Code § 18.2-104, Carl Leroy Pitts contends the trial court erred in holding that his prior conviction of attempted petit larceny was a predicate offense cognizable under the statute. We disagree and affirm.

At trial, Pitts stipulated that the evidence was sufficient to prove he stole an item with a value of less than $200. He conceded that he had suffered a prior conviction for grand larceny and a prior conviction for attempted petit larceny under Code § 18.2-27, but he argued that the attempted petit larceny conviction was not a predicate offense, operating under Code § 18.2-104 to enhance the petit larceny offense to a felony. The trial court convicted Pitts of petit larceny, third or subsequent offense, a felony.

Code § 18.2-96 defines “petit larceny” as the “commi[ssion] of simple larceny not from the person of another of goods and chattels of the value of less than $200.” Code § 18.2-104 provides for the punishment for petit larceny and states in part:

When a person is convicted of an offense of larceny or any offense deemed to be or punished as larceny under any provision of the Code . . . he shall be confined in jail not less than thirty days nor more than twelve months; and for a third, or any subsequent offense, he shall be guilty of a Class 6 felony.

Code § 18.2-27 states: “Every person who attempts to commit an offense which is a misdemeanor shall be punishable by the same punishment prescribed for the offense the commission of which was the object of the attempt.”

Relying on Harris v. Commonwealth, 23 Va. App. 311, 477 S.E.2d 3 (1996), aff’d on reh’g en banc, 24 Va. App. 613, 484 S.E.2d 170 (1997), Pitts argues that his prior attempted petit larceny conviction was not a larceny conviction within the contemplation of Code § 18.2-104, because Code § 18.2-27 does not expressly state that offense is deemed to be or is punishable as larceny.

The issue thus presented raises a question of law. Therefore, we employ a de novo standard of review. Rollins v. Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2001).

“While penal statutes must be strictly construed against the Commonwealth, `[t]he plain, obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained construction; a statute should never be construed so that it leads to absurd results.’” Newton v. Commonwealth, 21 Va. App. 86, 89, 462 S.E.2d 117, 119 (1995) (quoting Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992)).

In Harris, the defendant was convicted of felony petit larceny based upon a prior petit larceny conviction and a prior robbery conviction. Harris, 23 Va. App. at 312, 477 S.E.2d at 4. We held that a prior robbery conviction was not a predicate offense for enhancement purposes under Code § 18.2-104. Id. at 313, 477 S.E.2d at 4. In reaching that holding, we discussed the 1994 amendment to Code § 18.2-104 made in response to our holding in Snead v. Commonwealth, 11 Va. App. 643, 400 S.E.2d 806 (1991),[1] and stated that “[p]rior to the amendment of Code § 18.2-104, the scope of predicate offenses that would enhance a defendant’s sentence was narrow.” Harris, 23 Va. App. at 313, 477 S.E.2d at 4. Based upon the legislative history of the amendment, we held that under amended Code § 18.2-104 “predicate offenses now include: (1) `any offense of larceny;’ (2) `any offense deemed . . . larceny;’ (3) `any offense . . . punishable as larceny;’ and (4) `any substantially similar offense in any other jurisdiction.’” Id. at 314, 477 S.E.2d at 5 (quoting Code § 18.2-104). Code § 18.2-104 includes crimes that are “punished as larceny under any provision of the

Code.” Because Code § 18.2-27 provides that attempts “shall be punishable by the same punishment prescribed for the offense the commission of which was the object of the attempt,” Pitts’ attempted petit larceny conviction was punishable as a petit larceny conviction and was a predicate conviction under Code § 18.2-104. Accordingly, the trial court did not err in holding that Pitts’ prior conviction for attempted petit larceny was a predicate offense, raising his current petit larceny offense to a felony, and in convicting appellant of petit larceny, third or subsequent offense.

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THARRINGTON v. Commonwealth, Va: Court of Appeals 2011

Ronald Arthur Tharrington (appellant) was convicted in a jury trial of grand larceny in violation of Code § 18.2-95 and larceny with intent to sell or distribute in violation of Code § 18.2-108.01.[1] On appeal, appellant argues the trial court erred in failing to dismiss the indictments for grand larceny and larceny with intent to sell or distribute because conviction for both offenses stemming from one course of conduct constitutes double jeopardy. Because the General Assembly clearly and unambiguously intended that each statutory offense be punished separately, no double jeopardy violation occurred, and we affirm appellant’s convictions.

I.

BACKGROUND

“On appeal, `we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence establishes that appellant’s convictions stem from the burglary of the residence of Travis Dallos and Tara Black. On January 8, 2009, Dallos and Black returned home and discovered the back door to the residence standing open and shattered glass “all over the place.” Among the items missing from the residence was a PlayStation 3 game console worth $400.

The shift manager of a local pawn shop testified that on January 8, 2009, the same day as the burglary at Dallos’s and Black’s residence, appellant entered the store and attempted to obtain a loan on a PlayStation 3. Appellant presented identification and filled out the required paperwork in order to collect $100. The form reflected that he owned the game console and had the right to pawn it. At an undisclosed later time, appellant returned to the pawn shop and sold the game console for an additional $150. Upon his arrest, appellant admitted to pawning the game console, but insisted he did not break into Dallos’s and Black’s residence. At his trial, appellant testified that he obtained the game console from his housemate and gave him the proceeds from the pawn shop.

Appellant filed a pretrial motion to dismiss the indictments for grand larceny and larceny with intent to sell or distribute, contending Code § 18.2-108.01 “is unconstitutional on its face or in application to the facts of this prosecution.” At trial, appellant renewed his objection on double jeopardy grounds, arguing “the constitutional protection of double jeopardy would prevent him being convicted and punished twice for what is essentially the same crime” even though “it may have a separate element.” Appellant reasoned that “you can[not] convict someone twice . . . for stealing the same item just because they may have had a different intent.” The trial court denied the motion, holding “the legislature has deemed that [the crime of larceny with intent to sell or distribute] is a separate and distinct crime with a separate intent.” A jury subsequently found appellant guilty of statutory burglary, grand larceny, and larceny with intent to sell. This appeal followed.

II.

ANALYSIS

Appellant argues convicting him of both grand larceny and larceny with intent to sell or distribute violates double jeopardy principles because he was punished twice for essentially the same conduct. Appellant compares the dual convictions imposed here with a situation in which a defendant is prosecuted for both simple possession of contraband and possession with intent to distribute. Simultaneous conviction for both crimes is allowed only “if each offense is based upon a distinguishable incident of the offending conduct.” Peake v. Commonwealth, 46 Va. App. 35, 40, 614 S.E.2d 672, 676 (2005). Appellant contends his instant convictions do not meet this test because the theft of the PlayStation 3 cannot be divided into separate incidents of wrongdoing and, therefore, he was unconstitutionally subjected to multiple punishments. To that end, appellant further argues that the “proper interpretation of [Code §] 18.2-108.01 should be that it constitutes an enhanced punishment if the larceny is for sale or distribut[ion], not that it constitutes a separate additional crime.”[2]

“The double jeopardy clauses of the United States and Virginia Constitutions provide that no person shall be put twice in jeopardy for the same offense.” Martin v. Commonwealth, 221 Va. App. 720, 722, 273 S.E.2d 778, 780 (1981). “This constitutional provision guarantees protection against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.” Payne v. Commonwealth, 257 Va. 216, 227, 509 S.E.2d 293, 300 (1999). “In the single-trial setting, `the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense.’” Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 798 (1981) (quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L. Ed. 2d 187, 194 (1977)).

“When considering multiple punishments for a single transaction, the controlling factor is legislative intent.” Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104 (1983). The legislature “may determine the appropriate `unit of prosecution’ and set the penalty for separate violations.” Jordan [v. Commonwealth], 2 Va. App. [590,] 594, 347 S.E.2d [152,] 154 [(1986)]. Therefore, although multiple offenses may be the “same,” an accused may be subjected to legislatively “authorized cumulative punishments.” Id. “It is judicial punishment in excess of legislative intent which offends the double jeopardy clause.” Shears [v. Commonwealth], 23 Va. App. [394,] 401, 477 S.E.2d [309,] 312 [(1996)].

Lane v. Commonwealth, 51 Va. App. 565, 577, 659 S.E.2d 553, 558 (2008). “In reviewing a double jeopardy claim, or a claim based on statutory interpretation, this Court shall conduct a de novo review.” Davis v. Commonwealth, 57 Va. App. 446, 455, 703 S.E.2d 259, 263 (2011).

This Court must determine the General Assembly’s intent from the words contained in the statutes. Washington v. Commonwealth, 272 Va. 449, 455, 634 S.E.2d 310, 313 (2006); see Burke v. Commonwealth, 29 Va. App. 183, 188, 510 S.E.2d 743, 745-46 (1999) (“[W]e presume that . . . the legislature `acted with full knowledge of and in reference to the existing law upon the same subject and the construction placed upon it by the courts.’” (quoting City of Richmond v. Sutherland, 114 Va. 688, 693, 77 S.E. 470, 472 (1913))). Clearly, the language in Code § 18.2-108.01(C) stating that “[a] violation of this section constitutes a separate and distinct offense” expresses the legislative intent to authorize the imposition of multiple punishments in conjunction with other larceny statutes such as Code § 18.2-95. See Payne v. Commonwealth, 277 Va. 531, 539, 674 S.E.2d 835, 839 (2009) (holding that the plain language of Code § 18.2-36.1(C) allows for the convictions of both aggravated involuntary manslaughter and felony murder in a single trial). Because the legislative intent is unambiguous, we need not determine whether Code §§ 18.2-95 and -108.01 each require proof of a fact which the other does not.[3] Accordingly, appellant’s convictions for larceny with intent to sell or distribute and grand larceny do not violate his double jeopardy rights.

III.

CONCLUSION

The plain language of Code § 18.2-108.01(C) clearly and unambiguously expresses the General Assembly’s intent to permit multiple punishments under Code §§ 18.2-95 and -108.01. Accordingly, no double jeopardy violation occurred, and we affirm appellant’s convictions.

Affirmed.

[1] Appellant was also convicted of statutory burglary but does not challenge the validity of that conviction.

[2] The Commonwealth contends this argument is procedurally barred under Rule 5A:18 because appellant did not specifically object on those grounds at trial. We disagree. In making his double jeopardy objection, appellant necessarily implied that grand larceny was a lesser-included offense because “the double jeopardy defense does not apply unless (a) the defendant is twice punished for one criminal act, and (b) the two punishments are either for the same crime or one punishment is for a crime which is a lesser included offense of the other.” Coleman v. Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001) (second emphasis added).

[3] This test, known as the Blockburger rule, dictates that when “the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each [offense charged] requires proof of an additional fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306, 309 (1932). “This test emphasizes the elements of the two crimes. `If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.’” Brown, 432 U.S. at 166, 97 S. Ct. at 2226, 53 L. Ed. 2d at 194 (quoting Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 1293 n.17, 43 L. Ed. 2d 616, 627 n.17 (1975)). “In applying the Blockburger test, we look at the offenses charged in the abstract, without referring to the particular facts of the case under review.” Coleman, 261 Va. at 200, 539 S.E.2d at 734. “[T]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.” Garrett v. United States, 471 U.S. 773, 779, 105 S. Ct. 2407, 2411, 85 L. Ed. 2d 764, 771 (1985); see Andrews v. Commonwealth, 280 Va. 231, 284, 699 S.E.2d 237, 267 (2010) (noting that the Blockburger test “is not the sole, or in many cases, the primary tool of statutory construction used to determine [legislative] intent”).

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Marsh v. Com., 704 SE 2d 624 – Va: Court of Appeals 2011

Bernard Chesley Marsh (“Marsh”) was convicted in a bench trial of grand larceny, in violation of Code § 18.2-95, and was sentenced to four years incarceration with all but sixty days suspended. On appeal, Marsh argues that the trial court erred in finding the evidence sufficient to support his conviction of grand larceny. Specifically, he contends that he never intended to permanently deprive Rhonda Gazda (“Gazda”) of her property. For the following reasons, we disagree and affirm the trial court’s conviction.

BACKGROUND

“Where the issue is whether the evidence is sufficient, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.” Sandoval v. Commonwealth, 20 Va.App. 133, 135, 455 S.E.2d 730, 731 (1995). So viewed, the evidence is as follows.

On October 17, 2008, Marsh went to Gazda’s apartment to attend a birthday party with her. Gazda, Marsh’s girlfriend of approximately two years, was getting ready when she noticed she was missing a ring from her jewelry box along with some other items. She asked Marsh if he had taken the missing items. Marsh replied he had needed some quick cash so he had 626*626 pawned the items,[1] but he would get the jewelry back when he got paid the next day.[2] They then attended the birthday party together. Upon returning to her apartment after the party, Gazda told Marsh she did not want him staying with her. After Marsh left, Gazda called the police, and reported the missing items as stolen property. Gazda testified that she never allowed Marsh to take items or pawn items before even though he had done so in March 2008, with some of the same pieces and had subsequently returned them.

Detective Richard Buisch, with the Fairfax County Police Department, became involved with the case when he came in contact with Gazda on an unrelated matter. Gazda informed Detective Buisch that she had reported the stolen property, and asked what had happened with regards to the report. Detective Buisch contacted Marsh, and made arrangements with him for the return of the items. Marsh returned some of the items that he had pawned to Detective Buisch, and informed him that he was trying to save up money to purchase the other items back.[3] After giving Marsh two to three weeks to come up with the money to retrieve the rest of the items, Detective Buisch placed a hold on them when Marsh did not obtain the rest of the items, retrieved them from Vienna Jewelry and Estate Buyers in Vienna, Virginia, and returned them to Gazda.

Suzette Marsham, the manager of Vienna Jewelry and Estate Buyers, testified that Marsh had brought in jewelry on several occasions and used it as collateral for loans. She stated that using the jewelry as collateral was different than a sales transaction because using the jewelry as collateral permitted the individual to come back and retrieve the jewelry.[4] Ms. Marsham testified that on one of the occasions when Marsh brought in jewelry, a couple of the transactions had been written up as sales transactions rather than as loan transactions with the jewelry as collateral. However, upon seeing the transactions were improperly written up, Marsh insisted that the items were not to be sold, and Ms. Marsham redid the paperwork to reflect that the transactions were loan transactions and not sales transactions. The receipts indicate that Marsh received $2,975 and that payments had not been received on some of the loans.[5] Gazda testified that she thought the approximate value of the jewelry taken was $25,000.

Marsh took the stand at trial and testified that he had taken the items and pawned them to help carry him through a job he was working on. Marsh stated that he had initially needed approximately $500. When asked why he continued to pawn more items after he received that amount, he replied “[b]y then I was in a position where I was robbing Peter to pay Paul . . . [t]hat was Ms. Gazda to pay the shop.” He also stated that he had informed Gazda he would get her items back when he was paid the next day. Marsh further testified that it was always his intent “to redeem [the jewelry] and give it back to her” as soon as he received his check.

At trial, Marsh made a motion to strike the charge against him, contending that the evidence was insufficient to prove he intended to permanently deprive Gazda of the jewelry. The trial court denied the motion, and found 627*627 him guilty of grand larceny. Marsh now appeals to this Court.

ANALYSIS

In a challenge to the sufficiency of the evidence, “we `presume the judgment of the trial court to be correct,’ and `will not set it aside unless it is plainly wrong or without evidence to support it.’” Davis v. Commonwealth, 39 Va.App. 96, 99, 570 S.E.2d 875, 876-77 (2002) (quoting Broom v. Broom, 15 Va.App. 497, 504, 425 S.E.2d 90, 94 (1992); Dodge v. Dodge, 2 Va.App. 238, 242, 343 S.E.2d 363, 365 (1986)). The reviewing court, under this standard, 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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original and citation omitted). Instead, the reviewing court asks whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. at 2789 (emphasis in original). When reviewing the sufficiency of the evidence to support a conviction, “we determine whether the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the reasonable inferences fairly deducible from that evidence support each and every element of the charged offense.” Haskins v. Commonwealth, 31 Va.App. 145, 149-50, 521 S.E.2d 777, 779 (1999).

“In Virginia, larceny is a common law crime. We have defined larceny as `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.’” Carter v. Commonwealth, 280 Va. 100, 104-05, 694 S.E.2d 590, 593 (2010) (quoting Skeeter v. Commonwealth, 217 Va. 722, 725, 232 S.E.2d 756, 758 (1977)). “Stated simply, larceny requires that there be a taking and asportation of the seized goods, coupled with an intent to steal those goods.” Id. at 105, 694 S.E.2d at 593 (citing Britt v. Commonwealth, 276 Va. 569, 575, 667 S.E.2d 763, 766 (2008)). Code § 18.2-95 defines grand larceny and provides, in pertinent part, that “[a]ny person who . . . (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more . . . shall be guilty of grand larceny. . . .”

“`The defendant’s intent to steal must exist at the time the seized goods are moved.’” Id. at 105, 694 S.E.2d at 593-94 (quoting Britt, 276 Va. at 575, 667 S.E.2d at 766). “The element of criminal intent may, and often must, be inferred from the facts and circumstances of the case, including the actions of the defendant and any statements made by him.” Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 764 (2001) (citing Stanley v. Webber, 260 Va. 90, 96, 531 S.E.2d 311, 315 (2000); Commonwealth v. Taylor, 256 Va. 514, 519, 506 S.E.2d 312, 314 (1998)). “In Virginia, absent countervailing evidence of intention otherwise, `the wrongful taking of the property in itself imports the animus furandi.’ In other words, the very existence of a trespassory taking permits the inference (unless other circumstances negate it) that the taker intended to steal the property.’” McEachern v. Commonwealth, 52 Va.App. 679, 685, 667 S.E.2d 343, 346 (2008) (citations omitted).

However, “`[o]ne who takes another’s property intending at the time he takes it to use it temporarily and then to return it unconditionally within a reasonable time— and having a substantial ability to do so— lacks the intent to steal required for larceny.’” Carter, 280 Va. at 107, 694 S.E.2d at 595 (quoting 3 Wayne R. LaFave, Substantive Criminal Law § 19.5(b), at 89 (2d ed.2003)). “An intent to return, however, must be unconditional. Thus it is no defense to larceny that the taker intends to return the property only if he should receive a reward for its return, or only upon some other condition which he has no right to impose.” Id. (citing LaFave, supra, at 90).

As noted above, it is not a defense to larceny merely to have an intent to return the property; in addition one must, at the time of taking, have a substantial ability to do so (even though, as events turn out, it may later become impossible to do so). . . . So too, an intent to pawn the property, accompanied by an intent later to redeem 628*628 the property and return it to its owner, is a defense only if the taker’s financial situation is such that he has an ability to redeem it.

LaFave, supra, at 91; see also State v. Langford, 483 So.2d 979, 985 (La.1986) (“[T]o counter inferred or proven intent to permanently deprive, a defendant must show both that he had the intent to return the property within a reasonable time, and that he had a substantial ability to do so.” (citing LaFave & Scott, Criminal Law § 88 (1972))); Putinski v. State, 223 Md. 1, 161 A.2d 117, 119 (1960) (“`If a man takes another’s goods with intent to pawn them, and does so, he is clearly guilty of larceny if he does not intend to redeem and return them. And he is guilty even if he does intend to redeem and return them, if he does not show ability to do so, or at least a fair and reasonable expectation of ability. If he shows such ability or expectation, it seems that he is not guilty.’” (quoting Clark & Marshall, Crimes, Sec. 12.04, p. 733 (6th Ed.))).

Marsh acknowledges that there was a trespassory taking of Gazda’s property, but argues that the evidence was insufficient to prove that he intended to permanently deprive her of that property rather than temporarily. While the fact finder could have reasonably inferred from Marsh’s acknowledgment that he took the property that he intended to steal it, Marsh contends that the facts do not support this inference because they do not establish beyond a reasonable doubt that he intended to permanently deprive her of the jewelry—that there is “counterveiling evidence of intention otherwise.” McEachern, 52 Va.App. at 685, 667 S.E.2d at 346. Specifically, he argues that the evidence negates any inference that he intended to permanently deprive her of the property because the transactions were written up as loans, he had made several payments on those loans, none of the loans had gone past their maturity except the ones the police placed a hold on, and he had redeemed some of the items.

In response, the Commonwealth asks this Court to broaden the conditions excluded under the “unconditional” return requirement of the intent to permanently deprive defense to include this type of situation where the return of the property was conditioned on Marsh’s receipt of his paycheck and on the condition that he subsequently redeem the property from the pawnshop. However, we decline the Commonwealth’s invitation to do so.[6] In this case, Marsh was not placing a condition on Gazda that she has to pay off the loans in order to receive the property back, nor is he placing some other condition on her that he has no right to impose. As has been noted by our Supreme Court, “it is no defense to larceny that the taker intends to return the property only if he should receive a reward for its return, or only upon some other condition which he has no right to impose.” Carter, 280 Va. at 107, 694 S.E.2d at 595. The Supreme Court noted that “[t]o take property by trespass for the purpose of `selling’ it to the owner is larceny.” Id. at 108 n. 2, 694 S.E.2d at 595 n. 2.

The cases in which courts have declined to find the lack of an intent to permanently deprive a defense to larceny due to a condition imposed have all involved the defendant placing a condition on the original owners of the property, and not a condition the defendant has imposed upon himself or that is imposed upon him by a third party. Id. at 107-08, 694 S.E.2d at 595 (“According to their scheme, Carter and his accomplice intended to return the paint [to the store] upon receipt of a payment [from the store] for returning it, a condition which they had no right to impose.”); People v. Davis, 19 Cal.4th 301, 79 Cal.Rptr.2d 295, 965 P.2d 1165 (1998) (holding that a defendant’s taking of merchandise from the store shelf with the intent to claim ownership and return it to the 629*629 store on the condition that the store pays a refund constitutes an intent to permanently deprive within the meaning of larceny); Slaughter v. State, 113 Ga. 284, 38 S.E. 854 (1901) (affirming larceny when the defendant, a private detective, took an individual’s watch and returned it to him claiming a reward); Commonwealth v. Mason, 105 Mass. 163 (1870) (affirming larceny conviction where defendant took the horse from the owner’s stable with the intent of concealing it until the owner offered a reward and returning it in order to obtain the reward); Berry v. State, 31 Ohio St. 219 (1877) (rejecting defendant’s claim that he did not intend to permanently deprive when he took the horses from the owner’s stable in order to obtain a reward); State v. Hauptmann, 115 N.J.L. 412, 180 A. 809 (1935) (upholding larceny conviction where defendant carried away the Lindbergh baby in its nightdress and intended only to return the nightdress on the condition that Lindbergh negotiate a payment for the baby’s return). Because the condition in this case is not one placed on Gazda, we do not find that the return of the property was based on a condition Marsh had no right to impose, and we decline to apply the “unconditional” return requirement to the facts of this case.[7]

Rather, in turning to the facts of this case, we hold the evidence was sufficient to support the fact finder’s conclusion that Marsh did not have the substantial ability to return the property to Gazda at the time he took it because of his financial situation. LaFave, supra, at 91. Marsh testified that he took the items because he was having money troubles, and needed money in order to carry him through a job he was working on. In order to redeem the property, Marsh would need $3,272.50. However, the only job he had at that time was a contract for carpentry work in which he would receive a total of $2,000 in installments as the work was completed. In addition, he was behind on other bills, and the initial $800 installment that he received from the $2,000 went towards payment of those outstanding bills. The evidence shows that he did not have that amount at the time he pawned the items, nor was he able to get that amount when Detective Buisch gave him a few weeks to do so. Marsh had neither the present ability nor the prospective ability at the time he took the items because of his financial situation to return the property. Thus, he did not have the substantial ability required, and his stated intent to return the property is not a defense to larceny.

In addition, the trial judge, as the fact finder, was not required to believe Marsh’s testimony that he intended to return the jewelry to Gazda the next day when he got paid and could retrieve the items from the pawnshop. “In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt.” Marable v. Commonwealth, 27 Va.App. 505, 509-10, 500 S.E.2d 233, 235 (1998). “A defendant’s false statements are probative to show he is trying to conceal his guilt, and thus is evidence of his guilt.” Emmett v. Commonwealth, 264 Va. 364, 372, 569 S.E.2d 39, 45 (2002) (quoting in parenthetical from Rollston v. Commonwealth, 11 Va.App. 535, 548, 399 S.E.2d 823, 831 (1991)).

For these reasons, we find the evidence supports the trial court’s factual finding that Marsh intended to permanently deprive Gazda of her property. Accordingly, we hold that the trial court did not err in holding the evidence sufficient to find Marsh guilty of 630*630 grand larceny in violation of Code § 18.2-95, and affirm.

Affirmed.

McCLANAHAN, J., concurring.

I agree with the conclusion reached by the majority that the evidence was sufficient to prove Marsh intended to permanently deprive Gazda of her property and therefore concur in affirming his conviction. I disagree, however, with the majority’s discussion of whether his intent to return the property was “unconditional.”

As the majority states, when a defendant takes the property of another person with the intent to use it temporarily and return it within a reasonable time, he generally lacks the intent to commit larceny. Carter v. Commonwealth, 280 Va. 100, 107, 694 S.E.2d 590, 595 (2010). But his intent to return must be “unconditional.” Id. Therefore, “it is no defense to larceny that the taker intends to return the property” upon a “condition which he has no right to impose.” Id. Although Carter and the other cases cited by the majority involved defendants placing a condition upon the original owners of the property,[8] I do not believe those cases stand for the proposition that a self-imposed condition could not also constitute a condition the defendant has no right to impose. I cannot, therefore, agree that “[b]ecause the condition in this case is not one placed on Gazda, we do not find that the return of the property was based on a condition Marsh had no right to impose. . . .” Indeed, a condition imposed upon the defendant by himself or imposed upon the defendant by a third party because of defendant’s own actions is also evidence of whether the defendant’s intent to return the property was unconditional.

Nevertheless, since the majority concludes the evidence was sufficient to prove Marsh intended to permanently deprive Gazda of her property because he did not have the substantial ability to return it, I believe the discussion of whether his intent to return was “unconditional” is unnecessary to the holding. See Morgan v. Commonwealth, 50 Va.App. 120, 130-31, 646 S.E.2d 899, 904 (2007) (appellate court opinions should avoid dicta and be decided on the best and narrowest grounds).

[1] The pawnshop receipts contain thirty-one pieces of jewelry that Marsh used as collateral for ten different loans.

[2] Marsh testified that he had been working as a self-employed carpentry contractor on a carpentry project for which he expected to receive $2,000 in four different installments. During September and October, this was his sole source of income, and he had already received one installment of $800, none of which he used to redeem the jewelry.

[3] The record does not indicate which loans Marsh paid off or which items he returned.

[4] The record is silent as to what would happen if Marsh was unable to pay the loan amount, if the jewelry could be sold after certain conditions had not been met (i.e. default on the loan or passage of time), or under what conditions Marsh would be able to get the jewelry back. However, each receipt contains the following language in the “Total of Payments” box: “Amount required to redeem pawn on Maturity Date.”

[5] The receipts from the pawnshop, dated September 20, September 24, September 26, October 11, October 14, October 16, and October 17, reflect that Marsh owed $3,272.50 on all of the loans due to finance charges.

[6] The concurrence paints too broad a brush in addressing conditions imposed by a defendant “which he has no right to impose.” Carter, 280 Va. at 107, 694 S.E.2d at 595. The concurrence would broaden the application of the conditions imposed to include “a condition imposed upon the defendant by himself or imposed upon the defendant by a third party because of defendant’s own actions” as “evidence of whether the defendant’s intent to return the property was unconditional.” However, this approach expands the rule to include conditions not imposed upon the actual owner of the property by the defendant.

[7] This Court noted in Carter v. Commonwealth, 54 Va.App. 700, 707, 682 S.E.2d 77, 81 (2009) (emphasis added), aff’d, 280 Va. 100, 694 S.E.2d 590 (2010), that “[t]he intent to return, conditioned on a future event that may or may not occur and based on a false assertion of ownership, should be disregarded as a matter of law and, as such, cannot negate the inference of intent to steal.” However, that case involved the false assertion of ownership by the defendant to the actual owner, and not to an unrelated third party. Further, the condition was also placed on the owner of the goods and not on the defendant such that the items would not be returned until the owner satisfied a condition. Thus, we find this inapplicable to the facts of this case in which the return of Gazda’s property was subject to conditions placed on Marsh by a third party because of Marsh’s actions, and the false assertion of ownership was not made to the owner of the property, but rather to a third party.

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