PRESENT: All the Justices
VICTOR RAY MCALEVY
PER CURIAM
v. Record No. 042894 November 4, 2005
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we review a judgment of the Court of
Appeals of Virginia affirming the judgment of the Circuit Court
of Henry County, convicting Victor Ray McAlevy of grand larceny
in violation of Code § 18.2-95. McAlevy v. Commonwealth, 44 Va.
App. 318, 605 S.E.2d 283 (2004). We awarded this appeal to
consider whether the Court of Appeals correctly held that “the
asportation element of larceny may be imputed to a defendant who
acts through an innocent agent.” Id. at 325, 605 S.E.2d at 286.
The record shows that McAlevy offered to sell certain farm
equipment to an individual who believed McAlevy’s representation
that the owner had given McAlevy permission to “get rid of it.”
In truth, McAlevy had no property interest in the farm equipment
and did not have permission to sell it. After being paid for
the farm equipment, McAlevy told the third party to “go ahead”
and pick it up without his assistance, which the third party
did. Some time later, the third party learned that McAlevy did
not own the farm equipment and returned it to the actual owner.
McAlevy contended in the trial court that he could not be
convicted of grand larceny because the Commonwealth failed to
prove the element of asportation inasmuch as McAlevy had not
personally removed the farm equipment from the owner’s premises.
The trial court disagreed and convicted McAlevy of grand
larceny, finding: “Mr. McAlevy authored this, he directed it, he
caused it and he intended to cause it. And I think that you can
impute this agency to him, or this asportation to him.”
On appeal in the Court of Appeals, and again before this
Court, McAlevy argued that he could not be convicted of grand
larceny because he was not the individual who actually removed
the farm equipment from the owner’s possession. He contended
the element of asportation was absent because the third party’s
removal of the farm equipment could not be imputed to him as a
matter of law.
The Court of Appeals affirmed McAlevy’s conviction, holding
that “the asportation element of larceny may be imputed to a
defendant who acts through an innocent agent.” McAlevy, 44 Va.
App. at 325, 605 S.E.2d at 286. In so doing, the Court of
Appeals noted that “[u]sing an innocent purchaser of property to
take and carry away property not belonging to the seller is no
different than if appellant first removed it from the farm and
then sold it to the innocent purchaser.” Id. at 324, 605 S.E.2d
at 286. We agree with the Court of Appeals.
This Court has clearly stated, “one who effects a criminal
act through an innocent or unwitting agent is a principal in the
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first degree.” Bailey v. Commonwealth, 229 Va. 258, 262, 329
S.E.2d 37, 40 (1985); Collins v. Commonwealth, 226 Va. 223, 233,
307 S.E.2d 884, 890 (1983). Furthermore, “a defendant may not
escape criminal responsibility for a crime which he arranges to
have committed by an unwitting agent.” Collins, 226 Va. at 233,
307 S.E.2d at 890 (citations omitted).
The Court of Appeals thus did not err in affirming
McAlevy’s conviction, correctly finding that the asportation
element of larceny could be imputed to him. McAlevy was
criminally responsible for grand larceny because the third party
who carried away the property was acting under McAlevy’s
direction and as his agent.
For the reasons well stated in the opinion of the Court of
Appeals, we will affirm that court’s judgment.
Affirmed.
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