COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Baker, Benton, Coleman,
Elder, Bray, Fitzpatrick and Overton
Argued at Richmond, Virginia
DAVID ERIC RICHARDSON, s/k/a DAVID HOWELL,
a/k/a DAVID RICHARDSON
OPINION BY
v. Record No. 2312-95-2 JUDGE SAM W. COLEMAN III
SEPTEMBER 2, 1997
COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Felipita Athanas for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
This criminal appeal involves the construction and
applicability of the "single larceny doctrine." The issue is
whether the theft of two purses, which thefts occurred at or
about the same time and from the same room, was a single larceny
as a matter of law or whether the fact finder reasonably could
have determined that two larcenies had occurred.
David Eric Richardson was convicted of two counts of grand
larceny and two counts of felonious petit larceny. On appeal,
Richardson contends that he was guilty of only a single act of
larceny, not four separate larcenies. A panel of this Court held
the evidence to be sufficient to prove that four separate
larcenies had occurred. Richardson v. Commonwealth, 23 Va. App.
668, 479 S.E.2d 87 (1996). We granted a rehearing en banc to
determine whether the theft of two of the purses from a hospital
nurses' station was a single larceny or separate offenses. 1
Because the Commonwealth's evidence and the reasonable inferences
that could be drawn therefrom failed to prove that the two thefts
were separate and distinct offenses, we hold that the theft of
the two purses was, as a matter of law, a single larceny. Thus,
we affirm the grand larceny conviction arising from the nurses'
station theft; reverse and dismiss the petit larceny charge,
which is subsumed by the former; and remand the grand larceny
conviction for purposes of reconsideration of sentence based upon
the actions taken herein.
BACKGROUND
On July 1, 1995, Richardson entered the Medical College of
Virginia (MCV) hospital complex and stole three purses, a
backpack, a watch, and a radio from three different locations
within the complex. The stolen items belonged to four
individuals and were stolen from three different floors or
buildings within the complex. As is relevant to the thefts at
issue, Richardson stole two purses that belonged to different
employees. The purses were stolen from a nurses' station in the
bone marrow transplant unit on the tenth floor of the North
Hospital. One purse was located atop a desk and the other was
1
The panel unanimously held that the two other 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. Accordingly, we do not reconsider the panel's
holding that those thefts were not part of a single larceny.
2
located behind a cabinet approximately ten feet from the desk.
The desk and cabinet were separated by a wall containing a "tube
system" that delivers items, such as blood products and pharmacy
medications, to and from the tenth floor. The purse located
behind the cabinet could not be seen from the desk without
walking around the wall. Because the value of the contents of
one of the stolen purses exceeded $200, Richardson was convicted
of grand larceny. For the theft of the other purse, he was
convicted of felonious petit larceny. The trial judge sentenced
Richardson to serve five years in the penitentiary for the grand
larceny conviction, which sentence the judge suspended, and to
fifty months in jail for the felonious petit larceny conviction,
to be served concurrently with a fifty-month sentence that was
imposed for the other felonious petit larceny conviction
resulting from the theft of a purse from another building in the
MCV complex.
ANALYSIS
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. See
Daniel H. White, Single or Separate Larceny Predicated Upon
Stealing Property from Different Owners at the Same Time, 37
A.L.R.3d 1407, 1409-10 (1971); 50 Am. Jur. 2d Larceny §§ 6-9
(1995). The concept is commonly referred to as the "single
3
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. See, e.g., 37 A.L.R.3d at 1407 annot.; 50 Am. Jur. 2d at
§§ 6-9 nn. 47-79. Wharton's Criminal Law explains that a single
larcenous taking of property, whether owned by one or several
individuals, will be treated as a single criminal offense;
conversely, if different articles are taken from different owners
at different times, the thief has committed separate offenses.
Charles E. Torcia, Wharton's Criminal Law §§ 346-47 (15th ed.
1995).
In Alexander v. Commonwealth, 90 Va. 809, 20 S.E. 782
(1894), our Supreme Court explained the "single larceny"
doctrine:
Lord Hale lays it down that if a thief at the
same time steals goods of A to the value of
six-pence, goods of B to the value of
six-pence, and goods of C to the value of
six-pence, being perchance in one bundle, or
upon a table, or in one shop, this is grand
larceny, at common law, because it is one
entire felony done at the same time, though
the persons had several properties, and
therefore if in one indictment they make
grand larceny.
Id. at 810, 20 S.E. at 783 (emphasis added). The Court later
expounded on the doctrine, stating:
[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
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of a general fraudulent scheme.
West v. Commonwealth, 125 Va. 747, 754, 99 S.E. 654, 656 (1919).
The overriding principle behind the single larceny doctrine is
to prevent the state from aggregating multiple criminal penalties
for a single criminal act. Thus, in West the defendant could not
be found guilty of separate larcenies for various items she stole
from a trunk where the evidence failed to prove whether she had
taken the items on one occasion or on separate occasions over a
period of time. Where the application and enforcement of the
criminal law is at issue, any ambiguity shall be resolved against
the Commonwealth and in favor of the accused. See Bell v. United
States, 349 U.S. 81, 83 (1955).
There is no litmus test that will determine whether a
defendant's conduct constitutes a single crime or multiple
crimes. When a prosecutor's policy is to charge as many offenses
as possible, the inquiry takes on added significance. Is, for
example, the drug trafficker who has ten packets of cocaine in
his pocket guilty of one or ten counts of possession with the
intent to distribute? Is the assailant who shoots his victim
three times guilty of three malicious woundings or three attempts
to murder or is that but one offense? As to larceny, is the
person who successively carries three televisions from a store to
his van guilty of three larcenies, but the thief who loads them
from a dolly into his van guilty of but one offense? Is the
thief who rifles through three drawers of a desk, stealing items
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from each drawer, guilty of one crime or three? If the thief is
interrupted briefly after stealing from two drawers, but
continues his thievery moments later, has he committed two
crimes? Is the thief who steals numerous items from various
rooms of a person's home guilty of but one larceny, whereas a
thief who steals the same items from different offices in the
same business complex guilty of multiple larcenies?
In order for the single larceny doctrine to apply, the items
stolen may, but do not have to, be part of the same bundle or
parcel; it is sufficient if they be at the same location -- that
is on the "same table," or same room, or "same shop," as Lord
Hale first observed. Alexander, 90 Va. at 810, 20 S.E. at 783.
When the evidence supports a finding that the thefts were part of
the same larcenous impulse or scheme and were part of a
continuous act, a single larceny has occurred. 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 the thief, the
number of owners, and whether intervening events occurred between
the takings. Unless the evidence proves that two or more
separate and discrete thefts occurred at separate times which
were not part of the same larcenous impulse, then thefts from the
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same room are but a single larceny.
Although the taking of several items belonging to different
persons from the same general area pursuant to the same larcenous
impulse will constitute a single larceny, a series of thefts
committed in rapid succession pursuant to a general scheme to
steal from distinct locations, such as different shops, stores,
or buildings, will constitute separate offenses. See, e.g.,
State v. Cabbell, 252 N.W.2d 451, 453 (Iowa 1977). For example,
a series of thefts in which the thief shoplifts goods valued at
less than $200 from several mall stores in succession, pursuant
to a general scheme to shoplift, cannot be aggregated to form a
single grand larceny; rather, the thefts are and must be
prosecuted as a series of petit larcenies. A single, general
scheme to commit a series of larcenies at different times and
locations does not transform multiple separate and discrete
crimes into a single offense.
As noted in footnote 1, the panel held in this case that
Richardson's theft of the items from the several floors or
separate buildings of the MCV complex, although accomplished
pursuant to Richardson's single general scheme to steal,
constituted separate larcenies because each was a separate and
discrete offense and was not part of the same impulse or
continuous larcenous act at the same location. We leave that
holding undisturbed. However, the panel's decision as to those
offenses serves to demonstrate that the controlling factor is not
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that the evidence proves the thief had a general scheme or intent
to steal, for example from various stores in a mall or various
offices in a complex, but rather whether the thief was acting
under the same impulse to steal at the time of both thefts. The
evidence must be sufficient for the fact finder to conclude
beyond a reasonable doubt that the thief formed separate and
distinct intents or impulses to steal in order to constitute
separate larcenies.
As for the theft of the two purses from the tenth floor
nurses' station, the evidence was not sufficient to prove that
Richardson formed separate and distinct intentions to steal or to
commit two separate thefts even though the purses were separated
by approximately ten feet. The theft of the two purses 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. The fact that the purses were separated by
ten feet and that the thief had to walk around a wall from the
desk to the cabinet are not circumstances that break the
continuity of the thief's single and continuing act of thievery.
The fact finder could not reasonably infer from this evidence
that Richardson left the station after stealing one purse and
returned momentarily to steal the second purse, having formed a
separate intent to steal or that a significant intervening event
occurred after Richardson stole one purse, which led to the
formation of a separate intent to steal the second purse. See
8
West, 125 Va. at 754, 99 S.E. at 656. Thus, the evidence is
insufficient to prove two separate and distinct offenses. The
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.
Accordingly, we affirm the grand larceny conviction but
reverse and dismiss the felonious petit larceny conviction, which
was subsumed by the single larceny conviction. Although the
trial court sentenced the defendant to a five year suspended
penitentiary sentence for the grand larceny conviction, we do not
know whether the decision to suspend that sentence was, to any
extent, based upon the trial court's having sentenced Richardson
to a concurrent term of fifty months in jail for the felonious
petit larceny conviction that we reverse and vacate. Therefore,
we remand the grand larceny conviction to the trial court for the
sole purpose of determining whether our reversal of the felonious
petit larceny conviction affects the trial court's decision to
suspend the sentence for the grand larceny conviction.
Affirmed in part,
reversed in part,
and remanded.
9
Elder, J., with whom Overton, J., joins, dissenting.
I dissent for the reasons stated in the panel's majority
opinion. Richardson v. Commonwealth, 23 Va. App. 668, 479 S.E.2d
87 (1996).
10