Present: Hassell, C.J., Koontz, Kinser, Lemons, and Agee,
JJ., and Carrico and Compton, S.JJ.
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 041585 SENIOR JUSTICE HARRY L. CARRICO
April 22, 2005
TARIK HASAN HUDGINS
FROM THE COURT OF APPEALS OF VIRGINIA
This case involves a claim of double jeopardy and the
sole question for decision is whether grand larceny from the
person is a lesser-included offense of robbery. The question
arose from an incident occurring on October 1, 2000, when the
defendant, Tarik Hasan Hudgins, pushed eleven-year-old
Benjamin S. Brinkley (Benjamin) from his bicycle and took the
bicycle from him.
An indictment returned by a grand jury charged that the
defendant “did rob [Benjamin] of U.S Currency or other
personal property, in violation of Code § 18.2-58.” In a
bench trial, the defendant was acquitted of robbery. Ten days
later, a grand jury returned an indictment charging that the
defendant “did steal property having a value of five dollars
($5) or more from the person of [Benjamin], in violation of
Code § 18.2-95.”
The defendant moved to dismiss the second indictment on
the ground of former jeopardy because of his prior acquittal
of robbery involving the same bicycle. Citing Graves v.
Commonwealth, 21 Va. App. 161, 462 S.E.2d 902 (1995), aff’d on
reh’g en banc, 22 Va. App. 262, 468 S.E.2d 710 (1996), the
trial court denied the motion to dismiss, holding that grand
larceny from the person is not a lesser-included offense of
robbery and, therefore, that the defendant’s acquittal of
robbery was not a bar to his subsequent prosecution for grand
larceny from the person.
In a bench trial, the court convicted the defendant of
grand larceny from the person and sentenced him to serve ten
years in the penitentiary, with nine years and six months
suspended. The defendant then appealed his conviction to the
Court of Appeals.
Overruling its prior holding to the contrary in Graves,
the Court of Appeals held that grand larceny from the person
is a lesser-included offense of robbery and reversed the
defendant’s conviction on the ground it was barred by his
earlier acquittal of robbery. Hudgins v. Commonwealth, 43 Va.
App. 219, 597 S.E.2d 221 (2004). We awarded the Commonwealth
this appeal.
The double jeopardy clauses of the United States and the
Virginia constitutions (U.S. Const., amend. V, and Va. Const.,
art. I, § 8, respectively) embody three guarantees. They
protect against (1) a second prosecution for the same offense
after acquittal, (2) a prosecution for the same offense after
conviction, and (3) multiple punishments for the same offense.
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Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 797
(1981) (citing North Carolina v. Pearce, 395 U.S. 711, 717
(1969), and Illinois v. Vitale, 447 U.S. 410, 415 (1980)).
Two offenses will be considered the same when (1) the two
offenses are identical, (2) the former offense is lesser
included in the subsequent offense, or (3) the subsequent
offense is lesser included in the former offense. Martin v.
Commonwealth, 221 Va. 720, 722, 273 S.E.2d 778, 780 (1981);
see also Jones v. Commonwealth, 218 Va. 757, 759, 240 S.E.2d
658, 660, cert. denied, 435 U.S. 909, 439 U.S. 892 (1978).
The defendant relies on category (3) to support his claim
that the principles of double jeopardy barred his prosecution
for grand larceny from the person after his acquittal of
robbery. The test for determining the efficacy of such a
claim was enunciated by the Supreme Court of the United States
in Blockburger v. United States, 284 U.S. 299 (1932). There,
the court stated as follows:
The applicable rule is that where 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 provision requires proof of a fact which the other
does not.
Id. at 304. “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
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crimes.’ ” Brown v. Ohio, 432 U.S. 161, 166 (1977) (quoting
Iannelli v. United States, 420 U.S. 770, 785 n. 17 (1975)).
A later decision of the Supreme Court cast doubt upon the
continued validity of Blockburger’s “same elements” test for
determining whether a double jeopardy violation has occurred.
In Grady v. Corbin, 495 U.S. 508 (1990), the court established
a “same conduct” test for making that determination. However,
in United States v. Dixon, 509 U.S. 688 (1993), the court
overruled the decision in Grady and reaffirmed the use of the
“same elements” test as the appropriate test for making the
determination. Id. at 712.
In applying the Blockburger test, the court considers the
offenses charged in the abstract, without reference to the
particular facts of the case under review. Coleman v.
Commonwealth, 261 Va. 196, 200, 539 S.E.2d 732, 734 (2001);
see also Schmuck v. United States, 489 U.S. 705, 716-17 (1989)
(comparison of offenses appropriately performed by reference
to statutory elements rather than conduct proved at trial).
We are of opinion that, when viewed in the abstract, each
offense at issue here requires proof of an element that the
other does not and that, pursuant to the Blockburger test,
there are two offenses rather than one.
Code § 18.2-58 prescribes the punishment for robbery but
does not define the offense. Robbery is defined at the common
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law as “the taking, with intent to steal, of the personal
property of another, from his person or in his presence,
against his will, by violence or intimidation.” Johnson v.
Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 572-73 (1968).
(Emphasis added.) Under Code § 18.2-95, “[a]ny person who
. . . commits larceny from the person of another of money or
other thing of value of $5 or more . . . shall be guilty of
grand larceny.” (Emphasis added.)
Hence, proof of violence or intimidation is required in a
prosecution for robbery but not for grand larceny from the
person. And proof of the value of the property stolen is
required in a prosecution for grand larceny from the person
but not for robbery.
The Court of Appeals indicated in its opinion, however,
that the reference in Code § 18.2-95 to the value of the
property stolen relates solely to “the degree of the potential
punishment” for the offense of grand larceny from the person
and, therefore, that value is not an element of the offense.
Hudgins, 43 Va. App. at 234, 597 S.E.2d at 228. This was
error.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court noted that “[a]ny possible distinction between
an ‘element’ of a felony offense and a ‘sentencing factor’ was
unknown to the practice of criminal indictment, trial by jury,
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and judgment by court . . . as it existed during the years
surrounding our Nation’s founding.” Id. at 478. In a
concurring opinion, Justice Thomas wrote:
[A]uthority establishes that a “crime” includes every
fact that is by law a basis for imposing or increasing
punishment (in contrast with a fact that mitigates
punishment). Thus, if the legislature defines some core
crime and then provides for increasing the punishment of
that crime upon a finding of some aggravating fact – of
whatever sort, including the fact of a prior conviction –
the core crime and the aggravating fact together
constitute an aggravated crime, just as much as grand
larceny is an aggravated form of petit larceny. The
aggravating fact is an element of the aggravated crime.
Id. at 501 (Thomas, J., concurring) (emphasis added).
Later, in Sattazahn v. Pennsylvania, 537 U.S. 101 (2003),
a case involving both an alleged denial of the Sixth Amendment
right to a trial by a jury and the Fifth Amendment protection
against double jeopardy, the court stated that its decision in
Apprendi clarified what constitutes an “element” of an
offense. “Put simply,” the Court said, “if the existence of
any fact (other than a prior conviction) increases the maximum
punishment that may be imposed on a defendant, that fact – no
matter how the State labels it – constitutes an element, and
must be found by a jury beyond a reasonable doubt.”
Sattazahn, 537 U.S. at 111. * See also Carter v. United States,
*
In Virginia, the punishment for grand larceny from the
person of property having a value of $5.00 or more is
substantially increased over the punishment for petit larceny.
Grand larceny from the person is punished by a term of
imprisonment not to exceed twenty years, Code § 18.2-95, while
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530 U.S. 255, 272-73 (2000) (the valuation requirement in a
statute describing an offense is an element of the offense,
not a sentencing factor).
Virginia jurisprudence on the subject is the same. In
Adams v. Commonwealth, 64 Va. (23 Gratt.) 949, 950 (1873),
this Court said: “At common law, no rule of criminal
pleadings was better established than that which required that
in indictments for larceny the value of the property should be
stated.” And, in Robinson v. Commonwealth, 258 Va. 3, 5, 516
S.E.2d 475, 476 (1999), this Court said that the “specified
amount [in a statute defining grand larceny] is an essential
element of the offense, and the burden is upon the
Commonwealth to establish that element by proof beyond a
reasonable doubt.” See also Knight v. Commonwealth, 225 Va.
85, 88, 300 S.E.2d 600, 601 (1983) (value of goods specified
in grand larceny statute is an essential element of the
crime); Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d
603, 607 (1954) (where value of thing stolen determines grade
of offense, value must be alleged and proved).
The value of the property stolen is the “aggravating
fact” that produces the increased punishment for the offense
of grand larceny from the person. Hence, the theft here of
petit larceny is punished by a term of imprisonment not to
exceed twelve months, Code § 18.2-96 (making petit larceny
punishable as a Class 1 misdemeanor).
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the bicycle of the value of $5.00 or more is the “aggravating
fact” and an essential element of the offense.
We note that, in its opinion, the Court of Appeals based
its conclusion that grand larceny from the person is a lesser-
included offense of robbery in part upon a statement in Jones,
supra, that “grand larceny is a lesser-included offense of
robbery only when it is the theft expressly charged in the
robbery indictment.” 218 Va. at 759, 240 S.E.2d at 660. As
the Commonwealth points out, however, this statement was dicta
because the larceny and robbery indictments in Jones were
based upon the theft of different items of personal property.
In any event, to the extent that Jones may be at odds with the
conclusion reached here, it is expressly overruled.
Finally, we note an argument by the defendant that his
acquittal of robbery impliedly acquitted him of grand larceny.
However, this argument was not raised in the trial court and,
hence, will not be considered here. Rule 5:25.
For the reasons assigned, we will reverse the judgment of
the Court of Appeals and enter final judgment here reinstating
the defendant’s conviction of grand larceny from the person.
Reversed and final judgment.
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