COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued at Alexandria, Virginia
JOSE A. SAGASTUME
OPINION BY
v. Record No. 0802-97-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
JUNE 2, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
Paul A. Maslakowski, Assistant Public
Defender, for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Jose A. Sagastume (appellant) was convicted in a jury trial
of statutory burglary, attempted rape, abduction with intent to
defile, and two counts of grand larceny. On appeal, he contends
the trial court erred in denying his motion to strike one of the
grand larceny convictions as required by the "single larceny
rule." Finding no error, we affirm.
I.
"On appeal, we view the evidence in the light most favorable
to the Commonwealth and grant to it all reasonable inferences
therefrom." Barlow v. Commonwealth, 26 Va. App. 421, 428-29, 494
S.E.2d 901, 904 (1998). "The jury's verdict will not be set
aside unless it appears to be plainly wrong or without evidence
to support it." Watkins v. Commonwealth, 26 Va. App. 335, 348,
494 S.E.2d 859, 866 (1998).
In 1994, appellant worked odd jobs for Margareta and Thomas
Blitz on their sixty-acre farm. After he left the Blitz's
employment, appellant was arrested and incarcerated. On May 4,
1996, Mrs. Blitz noticed food and money missing from her home.
On May 6, 1996, Mrs. Blitz learned that appellant had escaped
from the Loudoun County jail. She called the police to report
the thefts, but a search of the area was fruitless.
That afternoon, Mrs. Blitz was working in her garden when
she was struck on the head from behind. She awoke shortly
thereafter to find someone blindfolding her. The attacker took
her at knifepoint to a wooded area about six hundred feet away.
There, he tied her hands around a tree, undressed her, and
attempted to have sexual intercourse with her. After redressing
her, he tied her feet to another tree and began asking her
questions about her husband and a key. The attacker took Mrs.
Blitz's Seiko watch and a key to the carriage house from her
pocket. He told Mrs. Blitz that he was going to the house to
wait for her husband to return home.
After about twenty to thirty minutes, Mrs. Blitz freed
herself and phoned police from a tenant house on the property.
Officer David Domin arrived in twelve to fifteen minutes and
observed Mrs. Blitz's blue Volvo pulling out of the driveway with
the trunk open. The Volvo driver attempted to evade the
approaching police cars by driving over the grass. When the car
hit a tree and stopped, a man Domin identified as appellant
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jumped out and fled. The police pursued him on foot and took him
into custody.
The police inventory of the Volvo contents revealed two
rifles in a gun case, a kitchen style knife, a pair of blue
trousers, a lady's style hat, cloth strips torn from a t-shirt,
and a pair of tennis shoes. In the pocket of the trousers, the
police found a Casio watch, four bottles of fingernail polish,
women's makeup, a gold bracelet valued at $4,700, a pair of
earrings, a necklace with a pendant, two Seiko watches, the key
to the carriage house, a New York City subway map, a pair of
sunglasses, and a pair of rubber gloves. In the trunk of the
Volvo, the police found two backpacks which contained men's and
women's clothing, a purse, and shoes.
Appellant was indicted for, inter alia, grand larceny of
Mrs. Blitz's Volvo, grand larceny of firearms belonging to the
Blitzes, and grand larceny of their personal property. At the
conclusion of the Commonwealth's case-in-chief, the trial court
granted appellant's motion to strike the grand larceny charge
distinguishing the firearms from the other personal property, but
denied the motion with respect to the larceny of the Volvo.
The trial court ruled that separate larcenies may be charged
"only if the evidence showed that the offenses were separate and
distinct and not committed pursuant to one intention, one impulse
or one plan." 1 The court reasoned that "what occurred inside of
1
The trial court recessed to review the panel decision in
Richardson v. Commonwealth, 23 Va. App. 668, 479 S.E.2d 87
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the house . . . [was] all one offense," and the personal property
"might have been items . . . that he could sell to raise money.
With the automobile, however . . . the jury could conclude . . .
that he took it because he wanted to use it for transportation."
The trial court ruled as follows:
[A]s to the items inside of the house that
are alleged to have been taken, the evidence
would be as only one continuous larceny
event, but as to the Volvo, I cannot include
that. I think the jury has sufficient
evidence upon which to find that the intent
was separate and distinct.
The jury convicted appellant on both grand larceny charges,
and the trial court sentenced him to ten years imprisonment for
grand larceny of the Volvo and seven years for grand larceny of
the personal property.
II.
Appellant contends the evidence supports only one conviction
of larceny. We disagree.
It is a long established and fundamental principle that:
where several articles of property are stolen
at the same time and place, though the stolen
goods belong to different persons, the
stealing is regarded as one transaction, and,
therefore, as one offense, which may be
charged in a single count.
Alexander v. Commonwealth, 90 Va. 809, 810, 20 S.E. 782, 783
(1996). At the time of trial on February 25, 1997, we had not
yet granted en banc review of that decision. However, the trial
court's statement of the applicable law is consistent with this
Court's en banc holding in Richardson. See 25 Va. App. 491, 489
S.E.2d 697 (1997) (en banc).
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(1894). "The concept is commonly referred to as the 'single
larceny doctrine.'" Richardson v. Commonwealth, 25 Va. App. 491,
495, 489 S.E.2d 697, 699 (1997) (en banc).
Broadly stated, the general rule is that the
taking of property at different times, though
from the same place and the same owner, will
constitute separate offenses; and no
aggregation of successive petit larcenies,
not constituting parts of a continuous
transaction, but each complete and distinct
in itself, can be combined in one prosecution
so as to make a case of grand larceny.
But a series of larcenous acts,
regardless of the amount and value of the
separate parcels or articles taken, and
regardless of the time occupied in the
performance, may and will constitute, in
contemplation of law, a single larceny,
provided the several acts are done pursuant
to a single impulse and in execution of a
general fraudulent scheme.
West v. Commonwealth, 125 Va. 747, 754, 99 S.E. 654, 656 (1919)
(emphasis added). See Jha v. Commonwealth, 18 Va. App. 349, 354,
444 S.E.2d 258, 261 (1994) (aggregating the value of multiple
calls made to "900" numbers by illegal use of a telephone line
access device).
"[A]pplication of the doctrine becomes problematic when
applied to the infinite variety of circumstances that can arise."
Richardson, 25 Va. App. at 495, 489 S.E.2d at 699.
The primary factor to be considered is the
intent of the thief and the question to be
asked is whether the thefts, although
occurring successively within a brief time
frame, were part of one impulse. The
circumstances to be considered that will bear
upon the issue are the location of the items
stolen, the lapse of time between their
taking, the general and specific intent of
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the thief, the number of owners, and whether
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intervening events occurred between the
takings.
Id. at 497, 489 S.E.2d at 700.
In Richardson, the theft of two purses from a nurses'
station "occurred at approximately the same time, from the same
room or location, and pursuant to a single impulse or design to
steal items from that nurses' station." Id. at 498, 489 S.E.2d
at 701. This Court held "[t]he only conclusion that a fact
finder could reasonably draw from this record is that Richardson
went to the tenth floor nurses' station intending to steal purses
or other items of value and that he stole two purses during one
continuous act or transaction." Id. at 499, 489 S.E.2d at 701.
The full Court in Richardson declined to reconsider the
panel's unanimous holding that two thefts "from separate
buildings in the same complex were separate offenses, even though
they were in furtherance of the defendant's general scheme to
steal." Richardson, 25 Va. App. at 494 n.1, 489 S.E.2d at 699
n.1. Consequently, thefts of purses and backpacks from different
buildings within the Medical College of Virginia Hospital Complex
were considered separate larcenies. See Richardson v.
Commonwealth, 23 Va. App. 668, 479 S.E.2d 87 (1996), aff'd in
part, 25 Va. App. 491, 489 S.E.2d 697 (1997).
In the instant case, the record indicated that the various
larcenies of the watches, jewelry, and other personal property
occurred inside the house, and the evidence supported the
inference that the purpose of the thefts was to sell the items,
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or possibly in the case of the rifles, to use them for
protection. The jury could also have inferred that the larceny
of the Volvo occurred at a later time, outside the home, and the
intent evinced by this theft was to steal the car to transport
appellant away from the scene of his crimes. Consequently, the
jury could reasonably have concluded that, despite any "general
scheme" on the part of appellant, "each [theft] was a separate
and discrete offense and was not part of the same impulse or
continuous larcenous act at the same location." Richardson, 25
Va. App. at 498, 489 S.E.2d at 701. The jury's verdict was
supported by the evidence and was not plainly wrong. For the
foregoing reasons, the convictions are affirmed.
Affirmed.
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