COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Willis
Argued at Chesapeake, Virginia
KENYON E. McEACHERN
OPINION BY
v. Record No. 0063-08-1 JUDGE D. ARTHUR KELSEY
OCTOBER 21, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
David F. Pugh, Judge
Charles E. Haden for appellant.
Joanne V. Frye, Assistant Attorney General (Robert F. McDonnell,
Attorney General; Joshua M. Didlake, Assistant Attorney General, on
brief), for appellee.
The trial court convicted Kenyon E. McEachern of grand larceny of a vehicle in violation
of Code § 18.2-95(ii). On appeal, McEachern argues the evidence failed to prove he intended to
permanently deprive the victim of her vehicle. We disagree and affirm.
I.
On appeal, we review the evidence in the “light most favorable” to the Commonwealth.
Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle
requires us to “discard the evidence of the accused in conflict with that of the Commonwealth,
and regard as true all the credible evidence favorable to the Commonwealth and all fair
inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755,
759 (1980) (emphasis and citation omitted).
The evidence at trial established that the victim, McEachern’s pregnant girlfriend, drove
him in her vehicle to his mother’s house in Newport News. On the way, McEachern angrily
accused the victim of being unfaithful to him. When she attempted to make a call on her cell
phone, McEachern snatched it from her and threw it out the car window. The victim stopped her
vehicle and stepped out to find her cell phone. McEachern followed her, grabbed her by the hair,
forced her back into the vehicle, and ordered her to continue driving him to his mother’s home.
During the drive, McEachern physically assaulted the victim (smacking or pushing her in the
head multiple times) and announced that she was “going to make [him] fucking hurt [her].”
When they arrived at his mother’s house, McEachern “put the car in park himself and
took the keys out of the ignition.” The victim asked to leave. McEachern said he would “beat
[her] ass” if she did not accompany him into the house. Once inside, the victim asked
McEachern’s mother to retrieve her car keys from McEachern so she could leave. When the
victim said she would press criminal charges against McEachern, he choked her and pushed her
up against a wall with enough force to displace her arm. This display of violence prompted
McEachern’s mother and another man in the house to come to the victim’s aid. At that point,
McEachern brandished a handgun and left the home with the victim. As they walked to the
vehicle, McEachern said he intended to drive to the James River Bridge, kill her there, and then
commit suicide. The victim escaped on foot when McEachern returned briefly into the home to
retrieve something.
Bleeding and exhausted, the victim ran to a local church and called the police. Shortly
after the police arrived, the victim observed McEachern drive by in her vehicle. After midnight
that evening, the victim telephoned McEachern. By this time, the police had either called
McEachern or attempted to call him. During a tirade of “yelling” at the victim, McEachern
demanded to know why she gave the police his cell phone number. The victim, in turn,
demanded the return of her vehicle. McEachern said he abandoned the vehicle with the keys in it
at a nearby gas station. The victim took a taxicab to the gas station and found her vehicle there
early the next morning.
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The Commonwealth proceeded to trial against McEachern on several charges including
grand larceny of the victim’s vehicle. Specifically finding the “Commonwealth’s witnesses are
credible,” the court rejected McEachern’s attack on the credibility of the victim’s account of the
crime. Finding McEachern guilty, the trial court stated: “It’s my determination that the evidence
of the Commonwealth is the evidence that the court adopts.”
II.
SUFFICIENCY OF THE EVIDENCE — INTENT TO PERMANENTLY DEPRIVE
On appeal, McEachern does not challenge the trial court’s finding of a trespassory taking.
He instead contends the evidence failed to prove he intended to permanently deprive the victim
of the vehicle. 1 That he later abandoned the vehicle at the victim’s request, McEachern argues,
demonstrates he intended only to temporarily deprive the victim of the vehicle. He concludes
with the assertion that the evidence “merely supported a conviction for the lesser-included
offense [of] unauthorized use of an automobile under Va. Code § 18.2-102.” Appellant’s Br. at
14.
Settled principles govern our standard of review. “Sufficiency-of-the-evidence review
involves assessment by the courts of whether the evidence adduced at trial could support any
rational determination of guilt beyond a reasonable doubt.” United States v. Powell, 469 U.S.
57, 67 (1984). A reviewing court does not “ask itself whether it believes that the evidence at the
1
The Court granted McEachern’s petition for appeal only as to his Question Presented I:
“Was the evidence sufficient to prove McEachern guilty of grand larceny where the
Commonwealth failed to prove that McEachern intended to deprive [the victim] of her car
permanently?” Petition for Appeal at 8-19. We did not grant, and thus do not now address,
Question Presented II, which challenged the trial court’s finding that the vehicle had a value
exceeding $200. We similarly do not decide any other larceny issue (trespassory taking, caption,
asportation) unaddressed by any question presented in McEachern’s petition for appeal. Under
Rule 5A:12(c), only questions “presented in the petition for appeal will be noticed by the Court
of Appeals.” Clifford v. Commonwealth, 274 Va. 23, 25, 645 S.E.2d 295, 297 (2007); McLean
v. Commonwealth, 30 Va. App. 322, 329, 526 S.E.2d 717, 720 (1999) (en banc).
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trial established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19
(1979) (emphasis in original and citation omitted). Instead, we ask only “whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” Maxwell v.
Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson, 443 U.S. at
319) (emphasis in original). These principles recognize that an appellate court is “not permitted
to reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007),
because appellate courts have no authority “to preside de novo over a second trial,” Haskins v.
Commonwealth, 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004). 2
“In Virginia, larceny is a common law crime.” Bryant v. Commonwealth, 248 Va. 179,
183, 445 S.E.2d 667, 670 (1994). An individual commits larceny by wrongfully taking the
property of another “without his permission and with the intent to permanently deprive him of
that property.” Stanley v. Webber, 260 Va. 90, 96, 531 S.E.2d 311, 315 (2000); see also Tarpley
v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763-64 (2001). “In determining intent,
‘the factfinder may consider the conduct of the person involved and all the circumstances
revealed by the evidence.’” Welch v. Commonwealth, 15 Va. App. 518, 524, 425 S.E.2d 101,
105 (1992) (citations omitted). “Indeed, ‘[t]he specific intent in the person’s mind may, and
often must, be inferred from that person’s conduct and statements.’” Id. (citations omitted). To
be sure, “there is not one case in a hundred where the felonious intent in the original taking can
be proved by direct evidence. From the nature of the case, intent, generally, must be inferred
2
This deferential standard of review “applies not only to the historical facts themselves,
but the inferences from those facts as well.” Crowder v. Commonwealth, 41 Va. App. 658, 663
n.2, 588 S.E.2d 384, 387 n.2 (2003). Thus, a factfinder may “draw reasonable inferences from
basic facts to ultimate facts,” Haskins, 44 Va. App. at 10, 602 S.E.2d at 406 (citations omitted),
unless doing so would push “into the realm of non sequitur,” Thomas v. Commonwealth, 48
Va. App. 605, 608, 633 S.E.2d 229, 231 (2006) (citation omitted).
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from circumstances.” Skeeter v. Commonwealth, 217 Va. 722, 726, 232 S.E.2d 756, 759 (1977)
(citation omitted).
We accept the first premise upon which McEachern builds his argument. “The main
difference between common law larceny and the statutory offense of unauthorized use is that in
the former there must be an intent to deprive the owner of his property permanently, while in the
latter the intent is to deprive the owner of possession of his automobile temporarily and without
any intent to steal the same. The intent with which property is taken determines the offense.”
Overstreet v. Commonwealth, 17 Va. App. 234, 236, 435 S.E.2d 906, 907 (1993) (quoting Slater
v. Commonwealth, 179 Va. 264, 267, 18 S.E.2d 909, 910-11 (1942)) (emphasis in original).
Stated another way, “[t]here is no larceny where the defendant, by actual or constructive
trespass, takes the property of another with the intent to use it temporarily and thereafter to return
it to the owner.” 3 Charles E. Torcia, Wharton’s Criminal Law § 351, at 396 (15th ed. 1995).
We do not accept, however, McEachern’s argument that no rational factfinder could have
concluded that he intended to permanently deprive the victim of her automobile.
In Virginia, absent countervailing evidence of an intention otherwise, “the wrongful
taking of the property in itself imports the animus furandi.” Bryant, 248 Va. at 183, 445 S.E.2d
at 670 (quoting Skeeter, 217 Va. at 725, 232 S.E.2d at 758, in turn quoting Dunlavey v.
Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)). 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. Id.; see also Robinson v. Commonwealth, 190 Va. 134,
143-44, 56 S.E.2d 367, 372 (1949); Slater v. Commonwealth, 179 Va. 264, 266-67, 18 S.E.2d
909, 910-11 (1942); Vaughan v. Lytton, 126 Va. 671, 679-80, 101 S.E. 865, 867 (1920);
Saunders v. Commonwealth, 18 Va. App. 825, 828, 447 S.E.2d 526, 528 (1994); Welch v.
Commonwealth, 15 Va. App. 518, 521-22, 425 S.E.2d 101, 104 (1992).
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The animus furandi inference has a long history in Virginia cases distinguishing car theft
from mere unauthorized use. In Slater, 179 Va. at 264, 18 S.E.2d at 909, for example, a
defendant took a vehicle in Virginia and abandoned it in West Virginia. Convicted of larceny, he
argued on appeal he intended only to borrow the vehicle, not steal it, and thus should have been
allowed a jury instruction on the lesser-included statutory offense of unauthorized use of a
vehicle. Applying the animus furandi inference, Slater held the trespassory taking itself implied
an intent to steal and no other circumstances demonstrated any intent to the contrary. As Slater
observed, the defendant’s
own testimony discloses that he intended to deprive the owner of
the car permanently, for he said that he never intended to return the
car but intended to abandon it in Bluefield, West Virginia. When
one wrongfully takes property of another with intent to deprive the
owner thereof, larceny is complete, though the accused afterwards
abandons it. Evidence of the offense of unauthorized use is
entirely absent. That of larceny is full handed.
Id. at 267, 18 S.E.2d at 911 (citation omitted and emphasis in original). Similarly, in Robinson,
190 Va. at 134, 56 S.E.2d at 367, a defendant took a vehicle and later abandoned it on a public
highway. Relying on the animus furandi inference, Robinson rejected the defendant’s argument
on appeal that he intended only to borrow the vehicle and later return it to its owner. No
evidence, Robinson held, suggested the defendant “intended to deprive the owner of the car
temporarily.” Id. at 143-44, 56 S.E.2d at 372.
Consider, too, Briley v. Commonwealth, 221 Va. 532, 273 S.E.2d 48 (1980), where the
defendant took a man captive in his own vehicle and drove around for about twenty minutes.
The defendant later abandoned the vehicle — after first killing the vehicle owner — and then
stripped it of its parts. On appeal, the defendant argued that no evidence suggested he “intended
to take [the car] permanently.” Id. at 544, 273 S.E.2d at 56. “We reject his argument out of
hand,” id., the Virginia Supreme Court ruled. “We can conceive of no more conclusive evidence
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of the intent to deprive an owner of his car permanently than the testimony presented in this case
that the car was stolen contemporaneously with the murder of its owner and later abandoned and
stripped of parts.” Id.
Finally, in Tarpley, 261 Va. at 251, 542 S.E.2d at 761, one of the few Virginia cases not
applying the animus furandi inference, the defendant drove away in the victim’s vehicle in an
attempt to escape a fight in which several other men assaulted the vehicle owner. The defendant
did not act in concert with the attackers or participate as an accessory in the assault. These
unique circumstances, Tarpley held, undermined any reasonable inference that the defendant
intended to steal the vehicle:
Applying the above-stated standard of review, we conclude that the
evidence is insufficient as a matter of law to establish Tarpley’s
larcenous intent at the time he drove Bruce’s [the victim’s] car
away from the fight. There was no evidence that Tarpley attacked
Bruce during the fight or that he assisted anyone who struck Bruce.
Although the trial court was entitled to disbelieve Tarpley’s
account of the fight, the court received no evidence that Tarpley
actually participated in the altercation.
Id. at 256, 542 S.E.2d at 764.
Unlike Tarpley, McEachern directly participated in the violent circumstances surrounding
the trespassory taking of the victim’s vehicle. This fact confirms, rather than refutes, the animus
furandi inference. Having physically subdued his victim, predicted he would “fucking hurt” her,
brandished a firearm to enforce his will, and taken exclusive control over her vehicle,
McEachern announced his intent with unmistakable clarity: He told the victim he intended to
drive her to the James River Bridge and kill her. 3 His professed plan, had it come to pass as he
3
At trial, McEachern presented a very different account of the incident which, if
believed, would lead to very different inferences. The factfinder, however, was at liberty to
discount a criminal defendant’s “self-serving statements as little more than lying to conceal his
guilt.” Coleman v. Commonwealth, 52 Va. App. 19, 25, 660 S.E.2d 687, 690 (2008) (citations
and quotation marks omitted). On appeal, moreover, “when ‘faced with a record of historical
facts that supports conflicting inferences,’ a court reviewing the sufficiency of the evidence
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hoped, would have permanently deprived the victim of her vehicle as well as her life. See
generally Cullen v. Commonwealth, 13 Va. App. 182, 186, 409 S.E.2d 487, 489 (1991) (“The
evidence of the murder also proved that the taking was wrongful, the car was not taken with the
assent of the victim, and was taken with the intent to permanently deprive the owner.”); accord
Briley, 221 Va. at 544, 273 S.E.2d at 56 (noting as “conclusive evidence” the defendant’s murder
of the vehicle owner and later abandonment of the stripped down vehicle).4
That the intended murder never occurred due to the victim’s fortuitous escape does not
vitiate McEachern’s larcenous intent during the trespassory taking. When McEachern later
abandoned the vehicle at a gas station, he was not returning it after a brief, unauthorized loan.
The evidence permits an entirely different conclusion — that he was retreating from a foiled
attempt at stealing the vehicle and murdering the victim after it became apparent to him the
police were involved. “When one wrongfully takes property of another with intent to deprive the
owner thereof, larceny is complete, though the accused afterwards abandons it.” Slater, 179 Va.
at 267, 18 S.E.2d at 911 (emphasis added). While an intent to permanently deprive must be
shown, actual “[p]ermanent loss by the owner is not a required element of larceny.” Jones v.
Commonwealth, 3 Va. App. 295, 301, 349 S.E.2d 414, 418 (1986). So long as the animus
furandi formed during the trespassory taking, see 3 Wharton’s Criminal Law § 350, at 395, a
later change of mind or desertion of purpose does nothing to expiate the theft.
‘must presume — even if it does not affirmatively appear in the record — that the trier of fact
resolved any such conflicts in favor of the prosecution, and must defer to that resolution.’”
Harper v. Commonwealth, 49 Va. App. 517, 523, 642 S.E.2d 779, 782 (2007) (citation omitted).
“The power to segregate a witness’s testimony into the believable, partly believable, or wholly
unbelievable is an exercise of decisional discretion intrinsic to the factfinding task and essential
to its proper performance.” Id.
4
See also People v. Abilez, 161 P.3d 58, 86 (Cal. 2007) (making the “threshold”
observation that “the defendant killed the car’s owner, indicating he did not intend to return the
car to her” (quoting People v. Moon, 117 P.3d 591, 607 (Cal. 2005) (internal brackets omitted))).
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III.
The evidence supports the rationality of the trial court’s finding that McEachern took the
victim’s vehicle with the intent to permanently deprive her of it. We thus affirm McEachern’s
conviction for grand larceny in violation of Code § 18.2-95(ii).
Affirmed.
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