Carter v. Com.

Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Carrico, S.J.

JACK EDWARD CARTER

v. Record No. 091895 OPINION BY
JUSTICE S. BERNARD GOODWYN
COMMONWEALTH OF VIRGINIA June 10, 2010

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal of a conviction for grand larceny, we

consider whether asportation and assertion of ownership of

property is sufficient to prove intent to steal that property.

Background

Jack Edward Carter was indicted by a Henrico County grand

jury for stealing paint from a home improvement supply store

(the store), in violation of Code § 18.2-95. Carter asserted

at trial and in the Court of Appeals that the Commonwealth

failed to prove he intended to steal the paint. At the

conclusion of a bench trial, the circuit court convicted him of

grand larceny and fixed his punishment at incarceration for a

term of three years with the execution of two years and six

months suspended. The Court of Appeals, in a published

opinion, affirmed the judgment of the circuit court. Carter v.

Commonwealth, 54 Va. App. 700, 709, 682 S.E.2d 77, 81 (2009).

Carter appeals.
 We will apply well-established principles of appellate

review and thus, we will summarize the evidence in the light

most favorable to the Commonwealth, the prevailing party in the

circuit court. Barnes v. Commonwealth, 279 Va. 22, 35, 688

S.E.2d 210, 217 (2010); McMillan v. Commonwealth, 277 Va. 11,

15, 671 S.E.2d 396, 397 (2009).

On August 22, 2007, Jack Edward Carter and his friend

Tracy Browning traveled by truck, with several other

individuals, to a home improvement supply store in Henrico

County. Pursuant to a pre-determined plan, Carter entered the

store and placed four 5-gallon buckets of paint, valued at

$398.92, in a shopping cart. Browning waited outside for a few

minutes and then followed Carter into the store. Browning

waited for Carter by the “returns” desk, where customers could

take items, previously purchased from the store, for a refund

of the purchase price. Carter approached Browning and gave her

the shopping cart containing the buckets of paint. As planned,

Browning represented that the paint had been previously

purchased from the store and requested payment for its return.

LeDawn Sawyer, an assistant store manager who was called to

approve the return, recognized Browning as someone she had been

alerted to look for. Sawyer obtained Browning’s identification

card and contacted a loss prevention employee, who summoned the

police.

2
 Police officers arrived at the store and spoke with

Browning. Browning acknowledged the details of the plan she

and Carter had made to seek a refund payment for paint that

neither she nor Carter had purchased from the store. Browning

admitted that “the deal was supposed to be that Mr. Carter was

supposed to go into the [store], get some paint, bring it out

somewhere [near] the refund desk. [Browning was] to go to the

refund desk and ask for a refund on the paint.” There was no

plan as to what she would do with the paint if the store

refused to give her a refund.

The police officers received information from Browning

regarding Carter’s location and went to arrest him. Carter

tried to flee, but the police officers apprehended him.

At the conclusion of the Commonwealth’s evidence, Carter

moved to strike the Commonwealth’s evidence on the basis that

the Commonwealth failed to prove that he and Browning intended

to steal the paint. The circuit court denied the motion.

Carter did not present any evidence, and renewed his motion to

strike, which the court denied.

Analysis

Carter argues that, as a matter of law, the evidence

presented by the Commonwealth was not sufficient to find him

guilty of grand larceny because the Commonwealth failed to

prove he had an intent to steal the paint. The Commonwealth

3
claims that the asportation of the paint by Carter, and the

assertion of ownership of the paint, pursuant to his plan, is

sufficient evidence to support a finding that Carter intended

to steal the paint so that it could be returned to the store

for a refund.

Carter does not dispute that there was asportation of the

paint by him, nor does he dispute that he and Browning were

working together and that each is criminally responsible for

the actions of the other. See McMorris v. Commonwealth, 276

Va. 500, 505-06, 666 S.E.2d 348, 350-51 (2008); Taylor v.

Commonwealth, 260 Va. 683, 687-88, 537 S.E.2d 592, 594 (2000).

His sole assignment of error concerns the allegation that the

scheme he was involved in with Browning did not involve

stealing the store’s paint because, after asserting ownership

of the paint, he and Browning planned to relinquish the paint

upon receiving payment from the store, without removing the

paint from the store. He notes there was no agreement as to

what would be done with the paint if the store did not pay the

refund.

When a defendant challenges the sufficiency of the

evidence on appeal, the reviewing court must accord the

judgment of the trial court sitting without a jury the same

weight as a jury verdict. Commonwealth v. Taylor, 256 Va. 514,

518, 506 S.E.2d 312, 314 (1998); Saunders v. Commonwealth, 242

4
Va. 107, 113, 406 S.E.2d 39, 42 (1991); Evans v. Commonwealth,

215 Va. 609, 613, 212 S.E.2d 268, 271 (1975). It is the

appellate court’s duty to examine the evidence that tends to

support the conviction and to uphold the conviction unless it

is plainly wrong or without evidentiary support. Code § 8.01-

680; Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263,

265 (1998); Walton v. Commonwealth, 255 Va. 422, 426, 497

S.E.2d 869, 871 (1998); Tyler v. Commonwealth, 254 Va. 162,

165-66, 487 S.E.2d 221, 223 (1997). In making this

determination, the appellate court must examine the evidence in

the light most favorable to the Commonwealth. Jenkins, 255 Va.

at 521, 499 S.E.2d at 265; Walton, 255 Va. at 425-26, 497

S.E.2d at 871.

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.’” Skeeter v. Commonwealth, 217 Va. 722,

725, 232 S.E.2d 756, 758 (1977) (quoting Dunlavey v.

Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)); see

also Payne v. Commonwealth, 222 Va. 485, 487, 281 S.E.2d 873,

874 (1981). Stated simply, larceny requires that there be a

taking and asportation of the seized goods, coupled with an

5
intent to steal those goods. 1 Britt v. Commonwealth, 276 Va.

569, 575, 667 S.E.2d 763, 766 (2008); see Bryant v.

Commonwealth, 248 Va. 179, 183, 445 S.E.2d 667, 670 (1994);

Mason v. Commonwealth, 200 Va. 253, 256, 105 S.E.2d 149, 151

(1958). “The defendant’s intent to steal must exist at the

time the seized goods are moved.” Britt, 276 Va. at 575, 667

S.E.2d at 766.

We have stated that “[i]ntent is the purpose formed in a

person’s mind at the time an act is committed.” Taylor, 256

Va. at 519, 506 S.E.2d at 314; see Guill v. Commonwealth, 255

Va. 134, 139, 495 S.E.2d 489, 492 (1998); Ridley v.

Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979).

“Intent may, and often must, be inferred from the facts and

circumstances of the case, including the actions of the accused

and any statements made by him.” Stanley v. Webber, 260 Va.

90, 96, 531 S.E.2d 311, 315 (2000); Taylor, 256 Va. at 519, 506

S.E.2d at 314; see Guill, 255 Va. at 139, 495 S.E.2d at 492;

Ridley, 219 Va. at 836, 252 S.E.2d at 314. It is undisputed

1
“For larceny there must be an intent to steal (or, as
stated in the Latin form, animus furandi). It is, of course,
not very helpful to say that to be guilty of stealing property
one must have an intent to steal the property. It is more
helpful to state (as it is sometimes put) that, for larceny,
one must intend to deprive the owner of the possession of his
property either permanently or for an unreasonable length of
time . . . .” 3 Wayne R. LaFave, Substantive Criminal Law
§ 19.5 at 87 (2d ed. 2003).

6
that at the time he picked up the paint, Carter intended to

have his accomplice assert ownership of the store’s paint

without paying the store for that paint, and to ask the store

to pay for its return. True to their scheme, Carter’s

accomplice moved the paint, represented ownership of that paint

to the store’s employee, and requested a refund payment.

Common law larceny requires a trespassory taking. Maye v.

Commonwealth, 213 Va. 48, 49, 189 S.E.2d 350, 351 (1972);

Overstreet v. Commonwealth, 17 Va. App. 234, 236, 435 S.E.2d

906, 907 (1993). Carter, in essence, asserts that there was no

trespassory taking and intent to permanently deprive the store

of its paint because his scheme did not involve the paint being

at any time physically removed from the store. At the core of

Carter’s defense is the issue of what constitutes sufficient

possession and asportation to sustain a conviction for larceny

from a self-service retail store.

A trespassory taking is a taking or removal of possession

of property from the owner with felonious intent; a violation

of an owner’s possessory right constitutes a trespassory

taking. Richards v. Commonwealth, 54 Va. (13 Gratt.) 803, 806

(1856); Overstreet, 17 Va. App. at 236, 435 S.E.2d at 907-08.

Because every customer in a self-service store has implied

permission to move merchandise, placed on open display,

unconcealed about the premises of the store, the trespassory

7
taking and carrying away of the merchandise of another does not

usually occur at such a store when the property is moved on the

premises. If, however, there is some conduct by the customer

which makes the customer’s possession clearly adverse to the

store, there is a trespassory taking. Freeman v. Meijer, Inc.,

291 N.W.2d 87, 89 (Mich. Ct. App. 1980); see Jones v. State,

314 So. 2d 876, 878 (Ala. Crim. App. 1975).

A trespassory taking is most easily proven by a defendant

leaving the store without paying for merchandise. However,

removal of the targeted property from the owner’s premises is

not required for there to be a trespassory taking, and

permanent loss by the owner is not a required element of

larceny. Whalen v. Commonwealth, 90 Va. 544, 549, 19 S.E. 182,

183 (1894). “One may be said to have taken another’s property

by trespass though he has not removed it from the other’s

premises or from his presence.” Wayne R. LaFave, Criminal Law

§ 19.2(i), at 979 (5th ed. 2010). If the defendant does not

leave the premises, the evidence must establish that the

defendant in some way, within the store, exercised trespassory

possession of the goods inconsistent with the owner’s rights.

See, e.g., Bryant, 248 Va. at 183-84, 445 S.E.2d at 670; Welch

v. Commonwealth, 15 Va. App. 518, 523-24, 425 S.E.2d 101, 105

(1992); see also Groomes v. United States, 155 A.2d 73, 75

(D.C. 1959); State v. Grant, 373 A.2d 847, 850 (Vt. 1977).

8
 The representation of ownership of the store’s paint by

Carter’s accomplice was an exercise of possession clearly

adverse to the store and inconsistent with the store’s right to

its paint. It is also evidence of his accomplice’s immediate

dominion and control of the paint. The assertion of ownership

in seeking a refund was evidence of and, in fact, confirmed

that there had been a trespassory taking of the paint, and it

evidenced an intent to deprive the owner thereof permanently.

See People v. Davis, 965 P.2d 1165, 1169-70 (Cal. 1998).

The trespassory taking, evidenced in the instant case by

asserting ownership, is no different than a trespassory taking

by walking out of the store without paying for the paint. At

the point ownership of the paint was asserted, there was

evidence that Carter and his accomplice had taken the store’s

paint just the same as if they had walked out of the store with

that paint. Where there is evidence that an individual has

acted in a manner that is inconsistent with that of a

prospective purchaser, and has exercised immediate dominion and

control over the property, despite his continued presence

within the owner’s store, such conduct establishes sufficient

possession to constitute larceny. Welch, 15 Va. App. at 524,

425 S.E.2d at 105; accord State v. White, 576 P.2d 138, 139

(Ariz. Ct. App. 1978); State v. Carswell, 249 S.E.2d 427, 429

(N.C. 1978); Hutchinson v. State, 427 P.2d 112, 114 (Okla.

9
Crim. App. 1967); State v. Houston, 688 S.W.2d 838, 840 (Tenn.

Crim. App. 1984). When one wrongfully takes property of

another with intent to deprive the owner thereof, larceny is

complete, though the accused afterwards abandons it. Slater v.

Commonwealth, 179 Va. 264, 267, 18 S.E.2d 909, 911 (1942);

Whalen, 90 Va. at 549, 19 S.E. at 183; see also Williams v.

Commonwealth, 278 Va. 633, 635-38, 685 S.E.2d 178, 179-81

(2009) (despite the fact that the defendant ultimately returned

the victim’s cellular telephone to the victim, defendant

“committed a larceny” that was “a continuing crime” when he

“took [the victim’s] cell phone without permission from a

‘ledge’ where [the victim] had left it.”).

“One 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.” 3 Wayne R. LaFave, Substantive Criminal

Law § 19.5(b), at 89 (2d ed. 2003). An intent to return,

however, must be unconditional. Id. at 90. 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.

10
Id. 2 According to their scheme, Carter and his accomplice

intended to return the paint upon receipt of a payment for

returning it, a condition which they had no right to impose.

We hold that the Court of Appeals did not err in concluding

that the evidence was sufficient to support Carter’s

conviction.

Conclusion

For the foregoing reasons, the judgment of the Court of

Appeals is affirmed.

Affirmed.

JUSTICE MILLETTE, with whom JUSTICE KOONTZ joins, dissenting.

I respectfully dissent.

Although I do not disagree with the majority that under

certain circumstances, the asportation of property and an

2
See People v. Davis, 965 P.2d 1165 (Cal. 1998)
(defendant’s intent to claim ownership of certain merchandise
taken from shelf of store and to return it to the store on
condition that the store pay refund constitutes intent to
permanently deprive within meaning of larceny law); Slaughter
v. State, 38 S.E. 854 (Ga. 1901) (defendant, a private
detective, took another’s watch, then returned it to its owner
claiming a reward; conviction of larceny affirmed); State v.
Hauptmann, 180 A. 809 (N.J. 1935) (defendant carried away
Lindbergh baby in its nightdress with intent to return the
nightdress if Lindbergh negotiated with him for payment for the
baby’s return; conviction of murder in the commission of
larceny affirmed, for it was larceny to take the nightdress
with the intent to return it only on condition of negotiation).
To take property by trespass for the purpose of “selling”
it to the owner is larceny. Rollin M. Perkins & Ronald N.
Boyce, Criminal Law, Larceny § 1, at 329 (3d ed. 1982).

11
assertion of ownership can support a finding that a person

intended to steal the property, even though the property had

not yet left the store, neither the evidence presented by the

Commonwealth nor the circuit court’s findings support that

conclusion in this case. An assertion of ownership for the

sole purpose of extracting a fraudulent refund does not

constitute an intent to permanently deprive the owner of his or

her property when the intent of the assertion is to obtain

money or property by false pretenses.

The Commonwealth’s theory of the case was that Carter’s

intent was to obtain a cash refund from the home improvement

supply store (the store) in exchange for paint. In his opening

statement, the attorney for the Commonwealth stated:

The intent when they went to the [store] together
that day was for . . . Carter to go into the store
first to select paint, . . . and put it in a cart and
bring it to the front of the store where Ms. Browning
was to then take custody of that and return it as if
it had been purchased. They had a receipt on [sic]
it was being returned for cash.

The co-defendant, Browning, testified as a witness for the

Commonwealth that, as directed by Carter, she followed Carter

into the store and waited by the return desk for him to bring

her what she was supposed to return. Carter pushed a shopping

cart with paint up to her and she pushed the cart up to the

return desk to return the paint.

12
 Upon cross-examination, Browning acknowledged that the

plan was for Carter to go into the store, get some paint, and

bring it to the return desk. Browning was to go to the return

desk and ask for a refund for the paint. The following

exchange took place during cross-examination of Browning:

Q The paint was never to leave the store, was it?

A No.

On redirect, Browning was asked whether she was going to

take the paint if the store had denied the return. Browning

responded:

A No, I mean, well probably I don’t know what I would
have done. No, because I was told, I probably would
have, I don’t know.

Q You still don’t know what you were going to do?

A No, I don’t even know at that point right then. I
mean, I just knew what I was supposed to do in the
first place.

Q Because the intent was to get money to –
Although the indictment charged Carter with grand larceny

in violation of Code § 18.2-95, alleging that Carter stole

property, namely, paint, having a value of two hundred dollars

or more, it is clear that the Commonwealth believed that

Carter’s intent was to steal money. At the conclusion of the

evidence, the Commonwealth moved to amend the indictment to

substitute “U.S. Currency . . . of [the store]” for “paint” as

the property involved in the larceny, but the circuit court

13
denied the motion to amend. When Carter moved to strike the

Commonwealth’s evidence on the ground that there was no intent

to steal the paint, the Commonwealth responded, “I think it’s

an intent to steal money.” However, the Commonwealth then

argued that the intent to steal the money was by means of

stealing paint and then returning paint.

The circuit court found that

the overall intent from the evidence I’ve heard so
far was [to] take the paint, take it up and get a
false refund, get the money. And I think they
certainly had the intent to steal when they went in
there and when you use the paint . . . with the
intent to use that as a vehicle to get the money, I
think that’s sufficient.

Larceny requires an intent to deprive the owner of its

property permanently. Tarpley v. Commonwealth, 261 Va. 251,

256, 542 S.E.2d 761, 763 (2001). I disagree with the

majority’s statement that the essence of Carter’s argument is

that there was no trespassory taking and intent to permanently

deprive the store of its property because the paint was never

physically removed from the store. Rather, Carter’s argument

is that he never had the intent to keep the paint, and thus

never intended to permanently deprive the owner of the paint.

Carter’s intent was to use the paint as a vehicle in his scheme

to defraud the store of the value of the paint. According to

the evidence, the gravamen of Carter’s offense was not the

larceny of the paint, but obtaining a fraudulent refund for the

14
paint, constituting the crime of obtaining money by false

pretenses.

Under Virginia law, false pretenses and larceny are

separate offenses, and there is no general theft statute, as

there is in most states, that encompasses both crimes. United

States v. Good, 326 F.3d 589, 592 n.5 (4th Cir. 2003). “The

Commonwealth of Virginia has always purported to treat the

three basic theft crimes of larceny, embezzlement, and false

pretenses as separate and distinct offenses. Virginia

maintains separate statutes for each crime.” Id. (quoting John

W. Bartram, Note, Pleading for Theft Consolidation in Virginia,

56 Wash. & Lee L. Rev. 249, 249 (1999)). 1

The elements of obtaining money by false pretenses are:

(1) an intent to defraud; (2) an actual fraud; (3)
use of false pretenses for the purpose of
perpetrating the fraud; and (4) accomplishment of the
fraud by means of the false pretenses used for the
purpose, that is, the false pretenses to some degree
must have induced the owner to part with his
property.

Riegert v. Commonwealth, 218 Va. 511, 518, 237 S.E.2d 803, 807-

08 (1977) (quoting Bourgeois v. Commonwealth, 217 Va. 268, 272,

227 S.E.2d 714, 717 (1976)); Code § 18.2-178. The evidence in

1
In People v. Davis, 965 P.2d 1165, 1167 (Cal. 1998),
relied upon by the majority, the Supreme Court of California
noted that the formerly distinct offenses of larceny,
embezzlement, and obtaining property by false pretenses were
consolidated by statute in California into the single crime of

15
this case could only establish that Carter, with the aid of

Browning, was attempting to commit the crime of obtaining money

by false pretenses. Both the Commonwealth and the circuit

court clearly understood that there was never any intent to

permanently deprive the store of the paint. The only intent

was to fraudulently obtain the refund money by means of the

false pretense that Browning had previously purchased the paint

and was entitled to a refund.

I do not dispute the line of cases cited by the majority

that hold it is larceny when property is taken with the intent

to permanently deprive the owner, and is returned by the

wrongdoer only when a reward is received in exchange. However,

to apply that analysis when property is merely presented for a

fraudulent refund ignores the fact that the wrongdoer’s intent

is not to obtain the property, but the cash refund. The

property is merely the instrument of the fraud. 2

In addition, there is no evidence to support a finding

that Carter intended to take the paint and return it only in

theft, and conviction of theft can be sustained if the evidence
establishes the existence of one of the offenses.
2
In many jurisdictions, when a wrongdoer asserts
ownership of an item taken from a store in a fraudulent attempt
to falsely obtain a refund, the offense is prosecuted as
obtaining property or money by false pretenses. See Anderson
v. State, 738 So. 2d 253, 254, 256-58 (Miss. Ct. App. 1998);
Kansas City v. Fritz, 607 S.W.2d 837, 838 (Mo. Ct. App. 1980);
State v. Hauck, 209 N.W.2d 580, 583-84 (Neb. 1973); State v.

16
exchange for a refund. The Court of Appeals erred when it

presumed that the circuit court concluded that Browning would

have removed the paint from the store if she did not obtain a

refund, see Carter v. Commonwealth, 54 Va. App. 700, 705, 682

S.E.2d 77, 80 (2009), because the evidence presented by the

Commonwealth was that there was no intent by either Carter or

Browning to ever take the paint out of the store. Browning

testified that she did not know what she would have done if a

return was refused, because that was not the scheme, and she

and Carter had only discussed her obtaining the refund. There

was no evidence of any intent to keep the paint, such as a need

for the paint or even the means of removing the paint from the

store. In fact, Carter was down the street in a bar waiting

for Browning to come to him with the refund money. The

Commonwealth never argued that Browning intended to keep the

paint and, in fact, attempted to amend the indictment to

indicate that money, instead of the paint, was the subject of

the larceny. The Commonwealth argued that the property stolen

in the larceny was the refund money. The circuit court never

found an intent to permanently deprive the store of the paint

because the court found that the intent was to steal money

using the paint as a vehicle to get a refund.

Ledwell, 614 S.E.2d 562, 564 (N.C. Ct. App. 2005); State v.
Ewers, 458 P.2d 708, 709 (Ore. Ct. App. 1969).

17
 Finally, although proof that the accused obtained money by

false pretenses will support a conviction under an indictment

for larceny, the Commonwealth must prove all of the elements of

obtaining money by false pretenses. Riegert, 218 Va. at 518,

237 S.E.2d at 807-08. The Commonwealth established that Carter

had an intent to defraud by the false pretense of exchanging

the paint for a refund. However, the fraud was never

accomplished because no money was ever obtained as a result of

the fraud. Since Carter never obtained money as a result of

the fraud, he can only be convicted of the crime of attempted

false pretenses. Code §§ 18.2-26, 18.2-178.

However, an accused is entitled to be clearly informed of

the charges against him and the Commonwealth cannot charge

Carter with larceny of paint and retrospectively argue that he

is guilty of larceny (or even attempted larceny) of money.

Baker v. Commonwealth, 225 Va. 192, 194-95, 300 S.E.2d 788, 789

(1983).

For the reasons stated, I would reverse Carter’s

conviction for grand larceny.

18