Schwartz v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Humphreys and Kelsey
Argued at Richmond, Virginia

MARC ANDRE SCHWARTZ
OPINION BY
v. Record No. 0325-02-2 JUDGE ROBERT J. HUMPHREYS
JUNE 17, 2003
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge

John W. Luxton (Morchower, Luxton & Whaley,
on brief), for appellant.
Margaret W. Reed, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.

Marc A. Schwartz appeals his convictions, after a bench

trial, for three counts of arson, three counts of vandalism, one

count of unlawful entry, and one count of underaged possession

of alcohol. Schwartz contends the circuit court erred in

finding he did not fall within the jurisdiction of the juvenile

and domestic relations district court, and finding the evidence

sufficient as a matter of law to establish three separate counts

of arson. Schwartz further argues that the final sentencing

order issued by the circuit court erroneously classified the

vandalism and possession of alcohol offenses as adult

convictions, as opposed to juvenile convictions. For the
reasons that follow, we affirm and remand for correction of the

sentencing order.

I. Background

In accordance with settled rules of appellate review, we

state the evidence presented at trial in the light most

favorable to the Commonwealth, the prevailing party below.

Burns v. Commonwealth, 261 Va. 307, 313, 541 S.E.2d 872, 877

(2001).

Around midnight, on May 28, 2001, Schwartz, 1 and three of his

high school classmates, James Steadman, Dale Edward Wright and

Scott Bennett, gathered at Wright's home. While there, they drank

alcohol and watched television. After some time, they decided to

go outside and vandalize a school bus that was parked at a home in

Wright's neighborhood. As they left Wright's home, they picked up

"bats, [a] hatchet, and [a] hammer," and then got into Steadman's

car. Schwartz also had a pocketknife.

The young men vandalized the bus by slashing the tires and

breaking several windows. They then vandalized another bus.

After this, the young men got back into Steadman's car and drove

around. At some point, they decided to try and "tip" a car. The

young men went to a neighborhood where they knew one of their

school teachers lived, and looked for a "top-heavy" car to "tip."

1
At the time of the incident, Schwartz was 16 years and 7
months of age.
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They parked the car "somewhere in [H]ardings [T]race" and got out,

carrying the items they used in vandalizing the buses. They then

approached a truck that was parked in the driveway of one of the

homes. Schwartz slashed the tires on one side. Although they saw

that lights were on inside the home, they rocked the truck in an

attempt to tip it over. When they were unable to tip the truck,

they noticed a container in the back, containing fuel. They then

decided to set the grass in the yard on fire. Schwartz helped

pour some of the fuel onto the grass. Wright tried to light the

fuel with a lighter he had taken from the front seat area of the

truck. However, because it was raining at the time, the young men

were unable to start the fire.
At that point, Schwartz put the fuel container back into the

truck. One of the young men then decided that they should try to

start a fire in the truck. Bennett "discouraged" the idea and

said that the house might catch on fire as a result.

Nevertheless, Steadman and Wright stood in the back of the truck

and attempted to start a fire with the fuel. Schwartz stood

nearby and watched as Steadman took a piece of paper, lit it, and

threw it in the back of the truck. The young men then ran back to

their car and drove away.

The young men returned to Wright's home and drank more

alcohol. They later returned to the home in Hardings Trace to

"check on the fire." When they arrived, they could see small

flames, but "it wasn't very big at all," so they left. When they

returned again, later that night, they saw a fire truck, so they

again left. After stopping to eat breakfast in a restaurant, the

young men returned to their respective homes.

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 The property that was burned belonged to Michael Drye. The

fire began in the back of his pickup truck then spread to his Ford

Explorer, which was parked nearby, then to the garage attached to

his home. The fire ultimately progressed across the roof of his

home and spread vertically to the third floor, heavily engulfing

the attic. Drye was home, asleep, at the time, but was able to

get out of the home before the fire spread from the garage. Once

fire officials arrived, the fire was brought under control in

approximately one hour. By that time, the fire had destroyed

Drye's home and two vehicles.
On June 1, 2001 and June 7, 2001, the Commonwealth filed

several petitions against Schwartz in the juvenile and domestic

relations district court in Henrico County. The petitions

included a charge of felonious arson of an occupied dwelling, two

charges of felonious arson of personal property, two charges of

felony vandalism, a charge of misdemeanor vandalism, a charge of

misdemeanor unlawful entry, and a charge of underage possession of

alcohol. On June 14, 2001, the Commonwealth filed a notice of

transfer hearing to be held on July 9, 2001.

During the transfer hearing, Schwartz pled guilty to

underaged possession of alcohol and three counts of vandalism.

After considering the probation officer's transfer report

recommending transfer of the remaining charges to circuit court,

and after considering the "statutory factors in [Code]

§ 16.1-269.1(A)(4)," the juvenile and domestic relations district

court transferred the remaining charges to circuit court. In

ordering the transfer, the juvenile and domestic relations

district court noted that it relied "primarily" on factors "b, c,

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& d," as contained in Code § 16.1-269.1(A)(4), in finding that the

Commonwealth's request for transfer should be granted.

Specifically, the court noted as follows:

seriousness of crime, cannot be retained
long enough in juvenile system [and] nothing
to offer him in juvenile system.

Schwartz appealed the transfer order to the circuit court on

July 16, 2001. During the de novo hearing, Schwartz presented

the testimony of a clinical psychologist, the medical director of

the Adolescent Health Center, and his mother. Each testified

that, in their opinion, Schwartz suffered from no psychopathology

or personality disorder, but was a very bright and intelligent

young man, who was "socially immature" and acted in an attempt to

gain social acceptance within his peer group. The clinical

psychologist testified that Schwartz presented a low risk for

similar behavior in the future, and opined that he would benefit

from counseling for approximately six to twelve months, to help

him deal with his personal growth and identity issues.

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 Schwartz also testified. He claimed that he had not

attempted to start the fire that evening, but admitted his

participation in the events that took place. He told the court

that he had apologized to Drye.

Schwartz also submitted several documents to the court for

consideration, including apology letters he had written to Drye

and his school superintendent, letters written by several of his

teachers documenting his intelligence and good nature, and

documents demonstrating his "exceptional intelligence" rating and

academic achievement.
After hearing arguments of counsel and considering the

evidence and "all papers connected" with the matter, the circuit

court found that Schwartz "was not a proper person to remain

within the jurisdiction of the Juvenile Court." The circuit

court ordered further that "[u]pon agreement of counsel, the

charges now pending in the Juvenile and Domestic Relations Court

are transferred to this Court for disposition."

The Commonwealth subsequently obtained indictments against

Schwartz for one count of arson of an occupied dwelling, in

violation of Code § 18.2-77, and two counts of arson of personal

property, in violation of Code § 18.2-81. On October 16, 2001,

Schwartz was tried on these charges, along with a charge of

misdemeanor unlawful entry, in violation of Code § 18.2-121. He

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was tried jointly, with codefendants Wright and Steadman, and

testified for the Commonwealth as to the events set forth above. 2

At the close of the Commonwealth's case, and again at the

close of all the evidence, Schwartz raised a motion to strike,

contending, in relevant part, that the "single larceny theory"

applied to this matter, allowing only one charge for arson, as

opposed to three separate charges involving the burning of the

individual items. The circuit court denied the motion and

subsequently convicted Schwartz of the charges.
On December 20, 2001, the circuit court heard evidence

pertaining to the three vandalism offenses and the underage

possession of alcohol offense, forwarded for disposition by the

juvenile and domestic relations district court, and "affirm[ed]

the finding of guilt of the Henrico Juvenile & Domestic Relations

Court" on these charges.

On January 10, 2002, Schwartz filed a motion to set aside

the findings of guilt with regard to the arson convictions,

arguing in relevant part, that the arsons of the vehicles were
3
lesser-included offenses of the arson of the occupied dwelling.
The record contains no ruling by the circuit court pertaining to

this motion.

2
The record demonstrates that Schwartz testified for the
Commonwealth by agreement and that he explicitly waived his
Fifth Amendment rights prior to beginning his testimony.
3
Although Schwartz referenced this motion in his brief on
appeal, he failed to include the motion in the Joint Appendix.
We remind counsel that Rule 5A:25(c) states that "[a]n appendix
shall include," "exhibits necessary for an understanding of the
case that can reasonably be reproduced." Rule 5A:25(c)(6)
(emphasis added).
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 By order of January 14, 2002, the circuit court sentenced

Schwartz on all the convictions. The aggregate sentence

amounted to thirteen years and thirty days in prison, with

twelve years, six months and thirty days suspended. The

sentencing order reflected all of the convictions, including the

juvenile and domestic relations district court convictions, as

adult convictions.

II. Analysis

On appeal, Schwartz raises three issues. Schwartz contends

the circuit court abused its discretion in determining that he was

not a proper person to remain within the jurisdiction of the

juvenile court and that it erred in finding him guilty of three

counts of arson, because there was only one point of ignition.

Schwartz further contends the circuit court's sentencing order

should be "modified to indicate that the three (3) convictions of

vandalism and possession of alcohol were actually juvenile

convictions as opposed to adult convictions."

A.

As to the first issue presented by Schwartz, we note that

although "the juvenile and domestic relations district courts have

exclusive, original jurisdiction [pursuant to Code § 16.1-241(A)]

over criminal offenses alleged to have been committed by a

juvenile," Burfoot v. Commonwealth, 23 Va. App. 38, 45, 473 S.E.2d

724, 728 (1996), a judge of the juvenile court may transfer the

juvenile to the appropriate circuit court "if [the] juvenile [is]

fourteen years of age or older at the time of [the] . . . alleged
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offense [and] is charged with an offense which would be a felony

if committed by an adult." Code § 16.1-269.1(A). The transfer is

subject to the factors listed in Code § 16.1-269.1(A)(1)-(4).

When a judge of the juvenile court transfers the juvenile to

the circuit court, the juvenile may appeal that decision to the

circuit court. See Code § 16.1-269.4. Upon de novo review, the

circuit court must "determine if there has been substantial

compliance with [Code § 16.1-269.1(A)], but without redetermining

whether the juvenile court had sufficient evidence to find

probable cause." Code § 16.1-269.6(B). Because a circuit judge

has discretion in making his or her ruling, we will not reverse

this ruling "absent a showing that [the circuit judge's] exercise

of discretion has been abused." Kluis v. Commonwealth, 14

Va. App. 720, 723, 418 S.E.2d 908, 910 (1992).

Accordingly, we review an order determining whether transfer

was appropriate pursuant to Code § 16.1-269.1(A) only for abuse of

discretion,

a "strict legal term" "synonymous with a
failure to exercise a sound, reasonable and
legal discretion," a "clearly erroneous
conclusion and judgment – one . . . clearly
against logic[,] . . . [and] the reasonable
and probable deductions to be drawn from the
facts disclosed." Black's Law Dictionary 10
(6th ed. 1990 (citations omitted)). "'[T]he
discretion of the able, learned and
experienced trial judge . . . will not be
interfered with upon review of this Court,
unless some injustice has been done.'" Bell
v. Kirby, 226 Va. 641, 643, 311 S.E.2d 799,
800 (1984) (quoting Temple v. Moses, 175 Va.
320, 337, 8 S.E.2d 262, 269 (1940)). Thus,
we should reverse only upon "clear evidence
that [the decision] was not judicially
sound" and not simply to substitute our
"discretion for that rendered below." Nat'l
- 9 -
 Linen Serv. v. Parker, 21 Va. App. 8, 19,
461 S.E.2d 404, 410 (1995).

Jefferson v. Commonwealth, 27 Va. App. 477, 487-88, 500 S.E.2d

219, 224-25 (1998).

Here, Schwartz contends the circuit court erred in

determining that the juvenile and domestic relations district

court substantially complied with the provisions of Code

§ 16.1-269.1(A) because the "denial of the transfer appeal was not

based on the facts as presented to the circuit court at the

hearing or in the documents submitted for the court's review," and

because the "trial court's review was not meaningful by the record

of these proceedings."
Despite Schwartz's contention that the circuit court erred,

"Russell v. Commonwealth, 16 Va. App. 660, 432 S.E.2d 12 (1993),

instructs that de novo review by the circuit court is unnecessary,

provided '[t]here [is] . . . a hearing that gives meaningful

review.'" Novak v. Commonwealth, 20 Va. App. 373, 384, 457 S.E.2d

402, 407 (1995) (quoting Russell, 16 Va. App. at 665, 432 S.E.2d

at 16).

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 The record here discloses that the circuit court indeed

conducted a de novo review, holding a hearing and taking

substantial evidence on the issue. In addition, the record

demonstrates that the circuit court examined "all of the papers

connected with this case," including the transfer report and the

written order of transfer, and "carefully listen[ed] to the

arguments of counsel," before ruling that Schwartz was "not a

proper person to remain within the jurisdiction of the Juvenile

Court." Such consideration clearly constituted the "meaningful

review" of the transfer decision contemplated by Code § 16.1-269

and Russell. Thus, we find no abuse of discretion in the circuit

court's determination of the matter. Further, we decline

Schwartz's invitation to reweigh the evidence on appeal, finding

no indication on the record that the circuit court's finding was

"judicially unsound."

B.

Schwartz next contends that the circuit court erred in

convicting him of three counts of arson, because the evidence
established only one ignition point, which burned two vehicles and

an occupied residence. Specifically, Schwartz argues that the

vehicle fires are lesser-included offenses of the residence fire,

that the individual convictions are barred pursuant to "Code

§ 19.2-264," and that they are also barred under the single

larceny doctrine.

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 Pursuant to Rule 5A:18, we do not address Schwartz's

contention that the vehicle fires were lesser-included offenses of

the residence fire. Schwartz made no such argument before the

circuit court, and although he raised the argument in his motion

to set aside the convictions, the record does not reflect

consideration or disposition of this motion by the circuit court.

We have long held that we will not consider an argument on appeal

that was not presented to the trial court. See Jacques v.

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)

(citing Rule 5A:18). Indeed, the main purpose of requiring timely

specific objections is to afford the trial court an opportunity to

rule intelligently on the issues presented, thus avoiding

unnecessary appeals and reversals. See Weidman v. Babcock, 241

Va. 40, 44, 400 S.E.2d 164, 167 (1991) (citation omitted).

Accordingly, Schwartz's argument is barred by Rule 5A:18 because

it was not raised in the circuit court, and because the circuit

court never ruled upon his motion to set aside the convictions,

providing us no ruling to review on appeal. See Ohree v.
Commonwealth, 26 Va. App. 299, 307-08, 494 S.E.2d 484, 488 (1998);

Fisher v. Commonwealth, 16 Va. App. 447, 454, 431 S.E.2d 886, 890

(1993).

As to Schwartz's argument pursuant to Code § 19.2-264, we

note that this section applies to issues of keeping a jury

together in felony cases, a matter not reflected as an issue on

the facts of this case. Thus, we presume Schwartz's reference to

this code section was in error. We further presume that Schwartz

intended, instead, to refer to Code § 19.2-294. Nevertheless,

that argument is without merit.

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 Code § 19.2-294 provides, in relevant part:

If the same act be a violation of two or
more statutes, or of two or more ordinances,
or of one or more statutes and also one or
more ordinances, conviction under one of
such statutes or ordinances shall be a bar
to a prosecution or proceeding under the
other or others.

Thus, Code § 19.2-294 prevents the Commonwealth from "subjecting

an accused to the hazards of vexatious, multiple prosecutions."
Hall v. Commonwealth, 14 Va. App. 892, 899, 421 S.E.2d 455, 460

(1992) (en banc). "By its terms, the statute does not apply to

simultaneous prosecutions, because only a prior conviction for

the violation of an act will bar a later prosecution for the same

act." Phillips v. Commonwealth, 257 Va. 548, 551-52, 514 S.E.2d

340, 342 (1999). Thus, because Schwartz was tried for the arson

offenses as part of a single prosecution, Code § 19.2-294 does

not apply.

Finally, we find that Schwartz's argument with regard to the

single larceny theory is, likewise, without merit.

Whether the larceny of multiple items at or
about the same time from the same general
location constitutes a single larceny or
multiple offenses is an issue that most
courts have addressed early in the
development of their criminal jurisprudence.
The concept is commonly referred to as the
"single larceny doctrine." The principles
are easily stated and understood, but
application of the doctrine becomes
problematic when applied to the infinite
variety of circumstances that can arise.

Richardson v. Commonwealth, 25 Va. App. 491, 495, 489 S.E.2d 697,

699 (1997) (citations omitted). "The overriding principle behind

the single larceny doctrine is to prevent the state from

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aggregating multiple criminal penalties for a single criminal

act." Id. at 496, 489 S.E.2d at 700.

In the case at bar, Schwartz was convicted of one count of

arson of an occupied dwelling, in violation of Code § 18.2-77,

and two counts of arson of personal property, in violation of

Code § 18.2-81. These offenses are not larceny offenses.

Common law "[l]arceny, . . . is the wrongful or fraudulent

taking of another's property without his permission and with the

intent to deprive the owner of that property permanently."
Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 764

(2001). Thus, "'[l]arceny involves the loss of property.'"

Hines v. Commonwealth, 39 Va. App. 752, 756, 576 S.E.2d 781, 783

(2003) (quoting Jones v. Commonwealth, 3 Va. App. 295, 300-01,

349 S.E.2d 414, 417-18 (1986) (explaining that the gravamen of

the crime of larceny is the taking of property from its owner)).

Indeed,

"[t]o constitute the crime of simple
larceny, there must have been a felonious
taking of the property from the possession
of the owner, and the thief must, for an
instant at least, have had complete and
absolute possession of the stolen property,
and during such possession and control he
must have feloniously removed the same from
the place it occupied just before he
grasped, seized or laid hold of the same."

Jones, 3 Va. App. at 301, 349 S.E.2d at 418 (quoting 12A Michie's

Jurisprudence, Larceny § 3 (Repl. Vol. 1978)).

Conversely, arson, which is largely a statutory offense,

involves the destruction of property. 4 See Hancock v.

4
See generally Code § 18.2-77 (addressing the burning or
destruction of a dwelling house); Code § 18.2-79 (addressing the
- 14 -
Commonwealth, 12 Va. App. 774, 779, 407 S.E.2d 301, 303-04

(1991). To prove the crime of arson and/or arson related crimes,

the Commonwealth must prove that a fire of incendiary origin

occurred and that the accused was a criminal agent in the

burning or destruction of a meeting house); Code § 18.2-80
(addressing the burning or destruction of structures not
punishable under any other code section relating to crimes
against property); Code § 18.2-81 (addressing burning or
destruction of personal property); Code § 18.2-82 (addressing
the burning of a structure while within the structure); Code
§§ 18.2-83 and 18.2-84 (addressing threats to bomb, burn or
otherwise damage a structure); Code § 18.2-85 (addressing the
manufacture, use or possession of firebombs or explosive
materials or devices); Code § 18.2-86 (addressing setting fire
to wood, fences, grass, etc.); Code § 18.2-87 (addressing
setting fire to woods or similar material and thereby,
intentionally causing a fire to spread to neighboring lands);
Code § 18.2-87.1 (addressing setting off bombs in public
buildings); and Code § 18.2-88 (addressing carelessly damaging
another's property by fire). See also Curran's Case, 7 Gratt.
(48 Va.) 619, 624 (1850) (declining "to moot the point whether
our [arson] statute has wholly abrogated the common law, and in
its stead substituted new statutory offences; or whether the
statute creates no new offence, but like our statute on the
subject of felonious homicide, (which only graduates the common
law offence, and measures the amount of the punishment by the
degree of the offence,) makes the grade of the common law
offence of arson, and the punishment to be inflicted, depend
upon the time and circumstances of its commission").
- 15 -
burning. See Marable v. Commonwealth, 27 Va. App. 505, 510, 500

S.E.2d 233, 235 (1998). "'The amount of "burning" necessary to

be shown [in cases of arson] is any amount, provided there is a

perceptible wasting of the fiber of the building or object which

is a subject of arson, or some part of that building or object,

by fire.'" Hancock, 12 Va. App. at 779, 407 S.E.2d at 303-04

(quoting 2A Michie's Jurisprudence, Arson § 1 (1981)).

In Stephens v. Commonwealth, 263 Va. 58, 557 S.E.2d 227

(2002), the Supreme Court of Virginia noted:

In Holly's Case, [113 Va. 769, 75 S.E. 88
(1912),] we stated the following rule: "The
theft of several articles at one and the
same time constitutes an indivisible
offense, and a conviction or acquittal of
any one or more of them is a bar to a
subsequent prosecution for the larceny of
the others." Id. at 772, 75 S.E. at 89.
This rule is not applicable here because it
"applies only to a case involving multiple
larceny prosecutions predicated upon the
theft of multiple articles stolen
contemporaneously." Jones v. Commonwealth,
218 Va. 757, 761, 240 S.E.2d 658, 661, cert.
denied, 439 U.S. 892 (1978).

263 Va. at 63, 557 S.E.2d at 230 (emphasis added). Indeed, "we

have only applied this doctrine to those statutory offenses for

which we can ascertain no intent by the legislature to abrogate

the theory of common law larceny." Scott v. Commonwealth, 36

Va. App. 276, 280, 549 S.E.2d 624, 626 (2001). Thus, because we

find that arson is not a larceny-based offense, we do not here

extend the application of the single larceny doctrine to offenses

under Code §§ 18.2-77 or 18.2-81.

Additionally, the plain language of Code §§ 18.2-77 and

18.2-81 proves that the legislature intended to allow multiple

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arson convictions under circumstances such as those presented in

this case. Code § 18.2-77(A) provides as follows, in relevant

part:

If any person maliciously (i) burns, or by
use of any explosive device or substance
destroys, in whole or in part, or causes to
be burned or destroyed, or (ii) aids,
counsels or procures the burning or
destruction of any dwelling house or
manufactured home whether belonging to
himself or another, . . . he shall be guilty
of a felony . . . . Any person who
maliciously sets fire to anything, or aids,
counsels or procures the setting fire to
anything, by the burning whereof such
occupied dwelling house . . . is burned
shall be guilty of a violation of this
subsection.

(Emphasis added.) Code § 18.2-81 provides:

If any person maliciously, or with intent to
defraud an insurance company or other
person, set fire to or burn or destroy by
any explosive device or substance, or cause
to be burned, or destroyed by any explosive
device or substance, or aid, counsel, or
procure the burning or destroying by any
explosive device or substance, of any
personal property, standing grain or other
crop, he shall, if the thing burnt or
destroyed, be of the value of $200 or more,
be guilty of a Class 4 felony; and if the
thing burnt or destroyed be of less value,
he shall be guilty of a Class 1 misdemeanor.

(Emphases added.)

While criminal statutes must be construed
strictly against the Commonwealth and in
favor of the accused, Johnson v.
Commonwealth, 211 Va. 815, 819, 180 S.E.2d
661, 664 (1971), when the language of a
statute is clear and unambiguous, a court
will give the statute its plain meaning,
Tross v. Commonwealth, 21 Va. App. 362,
377-78, 464 S.E.2d 523, 530 (1995). We also

- 17 -
 note, "The legislature in its discretion 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).

Hines, 39 Va. App. at 757, 576 S.E.2d at 784.

Code § 18.2-77 clearly and unambiguously sets forth the

legislature's intent that the burning of a dwelling house, caused

by igniting another item, be prosecuted as a separate and

distinct offense. Furthermore, Code § 18.2-81, by its plain

language, creates a single and separate unit of prosecution for

each item of personal property destroyed as the result of arson.

Indeed, in designating the grade of the offense, the legislature

specifically refers to "any personal property" as "the thing
burnt or destroyed." 5 Code § 18.2-81. If the legislature had

intended for the arson of all personal property at issue to

invoke but a single charge under the statute, the legislature

could have spoken more generally in terms of the personal

property and its aggregate value, in determining the appropriate

classification for the offense.

Given this statutory scheme, it is clear that the burning of

a home and two automobiles, although perpetrated as a result of a

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single point of ignition, constitutes separate and individual

offenses of arson under Code §§ 18.2-77 and 18.2-81.

Accordingly, we find no error on the part of the circuit court in

denying Schwartz's motion to strike on this basis.

C.

Finally, Schwartz contends the circuit court's sentencing

order should be "modified to indicate that the three (3)

convictions of vandalism and possession of alcohol were actually

juvenile convictions as opposed to adult convictions." As the

Commonwealth concedes error in this regard, we remand, without

deciding the matter, to the circuit court for the purpose of

correcting its January 11, 2002 order to reflect that Schwartz's

guilt in cases CJ01-75 through CJ01-78 was determined on July 9,

2001 in the juvenile and domestic relations district court.
Affirmed and remanded.

5
We recognize, however, that "'in the construction of
statutes[,] the constant endeavor of the courts is to ascertain
and give effect to the intention of the legislature, that
intention must be gathered from the words used, unless a literal
construction would involve a manifest absurdity.'" Barr v. Town
& Country Properties, 240 Va. 292, 295, 396 S.E.2d 672, 674
(1990) (quoting Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445,
447 (1934)) (emphasis added). We do not here determine under
what circumstances application of the literal language of the
statute would create an absurd result. We find that under the
circumstances of this case, a literal application of the statute
does not create a manifest absurdity.
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Fitzpatrick, C.J., concurring.

I respectfully concur with the majority opinion in

affirming appellant's convictions and in its holding that the

"single larceny doctrine" does not apply to the crime of arson.

See Stephens v. Commonwealth, 263 Va. 58, 557 S.E.2d 227 (2002).

This doctrine "applies only to a case involving multiple larceny

prosecutions predicated upon the theft of multiple articles

stolen contemporaneously." Id. at 63, 557 S.E.2d at 230

(internal citation and quotation omitted) (emphasis added).

This clearly states the applicable law and covers the factual

scenario presented in the instant case of one point of origin

and three separate, unattached pieces of property burned.

However, I believe the majority's further statutory

analysis leaves open the possibility of an absurd result. "Code

§ 18.2-81, by its plain language, creates a single and separate

unit of prosecution for each item of personal property destroyed

as a result of arson." (Majority opinion at 18) (emphasis

added). This could be construed as permitting a separate arson

prosecution for every item destroyed in a home or car, such as a

shoe, a sock, a pillow, etc. The majority's interpretation of

the statute fails to acknowledge that "[w]e must determine the

General Assembly's intent from the words appearing in the

statute, unless a literal construction of the statute would

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yield an absurd result." Earley v. Landsidle, 257 Va. 365, 370,

514 S.E.2d 153, 155 (1999).

For the foregoing reasons, I concur in the result.

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