COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judge Elder and Senior Judge Willis
Argued at Chesapeake, Virginia
RONALD ARTHUR THARRINGTON
OPINION BY
v. Record No. 1573-10-1 JUDGE LARRY G. ELDER
SEPTEMBER 27, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
Bruce H. Kushner, Judge
Robert E. Kowalsky, Jr. (Law Office of Robert Kowalsky, on
brief), for appellant.
Virginia B. Theisen, Senior Assistant Attorney General
(Kenneth T. Cuccinelli, II, Attorney General, on brief), for
appellee.
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.
1
Appellant was also convicted of statutory burglary but does not challenge the validity of
that conviction.
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
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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
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).
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“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
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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.
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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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.
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