COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia
JON RAY MOSS, A/K/A
JOHN R. MOSS
MEMORANDUM OPINION * BY
v. Record No. 2147-97-2 JUDGE JAMES W. BENTON, JR.
FEBRUARY 2, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
Lee W. Kilduff (Morchower, Luxton & Whaley,
on brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Jon Ray Moss was convicted on two indictments charging that
he had "in his possession . . . tools [or] implements . . . with
intent to commit . . . larceny . . . [in violation of] Code
§ 18.2-94." He contends that the evidence was insufficient to
sustain the convictions because the item he possessed was a key.
We affirm the convictions.
I.
The essential facts are uncontested. Greg Nuckols, the
owner of a vending machine company, employed Jon Ray Moss as a
salesman. Moss' duties included servicing the company's coin
operated vending machines at various sites. Moss was given a key
that allowed him to open the machines in order to change
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
merchandise and remove money. While Moss was employed, one of
the keys used to open the machines was reported missing. Moss
worked two or three weeks before Nuckols fired him. After he
fired Moss, Nuckols began to notice that money was being removed
from various machines. Nuckols reported the losses to the
police.
While investigating Nuckols' complaint, a police detective
questioned Moss regarding the vending machine losses. Moss told
the detective that Nuckols had fired him. Moss also admitted
that he took a set of the company's keys, used the keys to enter
several vending machines after he had been fired, and had removed
money from the vending machines.
At the conclusion of the evidence, Moss moved to strike the
evidence and argued that a key was not a tool or implement as
contemplated by Code § 18.2-94. The trial judge overruled the
motion and convicted Moss on both indictments.
II.
In a recent appeal involving this same appellant and
concerning similar circumstances, we ruled as follows:
To place the keys beyond the reach of Code
§ 18.2-94, defendant relies upon a dictionary
definition of tool, "something (as an
instrument or apparatus) used in performing
an operation or necessary in the practice of
a vocation or profession," Webster's Ninth
New Collegiate Dictionary 1243 (1985), and of
implement, "things as are used or employed
for a trade, or furniture of a house.
Particularly applied to tools, utensils,
instruments of labor; as the implements of
trade or of farming." Black's Law Dictionary
754 (deluxe 6th ed. 1990).
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Defendant's arguments, however,
misconstrue both the statute and the
evidence. Code § 18.2-94 requires proof that
the offending tools, implements or outfit
were intrinsically "burglarious" only when
the Commonwealth relies upon the statutory
presumption to establish the requisite
criminal intent. Here, unaided by the
presumption and guided by the dictionary
definition cited by defendant, we find that
the vending machine keys were tools,
"something (as an instrument or apparatus)
. . . necessary in the practice of a
vocation." Manifestly, keys to unlock
[Nuckols'] vending machines were
indispensable to the business.
Moss v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___
(1999) (footnotes omitted).
The evidence at trial proved that Moss stole a set of keys
and used the keys without authorization to open several of the
company's vending machines and steal money. Thus, the evidence
was sufficient to prove beyond a reasonable doubt that Moss had
in his possession and used keys, which are tools as specified in
Code § 18.2-94, with the intent to commit larceny.
Affirmed.
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