COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia
EDWARD ARDALE BRAME
MEMORANDUM OPINION * BY
v. Record No. 2381-97-4 JUDGE CHARLES H. DUFF
NOVEMBER 3, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
J. Howe Brown, Jr., Judge
Bobby B. Stafford (Kathryn E. Coward; The Law
Offices of Raby & Stafford, on brief), for
appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Edward Ardale Brame (appellant) was convicted of grand
larceny. He contends on appeal that the Commonwealth failed to
prove an intent to permanently deprive and a wrongful taking,
both essential elements of larceny. We disagree and affirm the
conviction.
I.
Appellant, through his company, Sterling Corporation, bought
computers, fax machines, and printers for MCI. Such equipment
was shipped directly to MCI. On November 27, 1996, appellant
visited the MCI office located at Tyson's Corner. While there,
he borrowed a "Compaq LT 5300" laptop computer, worth over
$5,400, from MCI employee Ernest Lease.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Appellant and Lease were longtime business associates and
personal friends. Lease testified that he did not place any
restrictions on appellant's use of the computer because, in light
of their friendship, he felt it unnecessary. According to Lease,
appellant had never before removed an MCI computer from the
building. On November 27, 1996, however, appellant took the
computer from MCI's building.
Around January 1, 1997, Eric Donaldson, who was responsible
for tracking approximately 400 computers for MCI, discovered that
the laptop computer taken by appellant was missing. Donaldson
and Lease notified Jeff Pomerantz, the manager at MCI responsible
for computer inventory, of the missing computer. Pomerantz
contacted Scott Marion, internal investigator for MCI, and they
contacted the police. Pomerantz called appellant's business
several times between November and late January and left messages
regarding another matter. Appellant did not contact Pomerantz.
On January 29, 1997, appellant took MCI's laptop computer to
the Maryland Exchange, a pawn shop. He provided the computer,
and another one, as collateral for a $2,000 loan. When pawn shop
employee Gregory Daymude "brought up the system," it showed
appellant as the registered owner. The pawn shop was required by
Maryland law to file a "second hand" property report. Daymude
noted the serial numbers of the two computers on the report and
noted next to the serial number of the computer belonging to MCI,
"registered to Edward Ardale Brame."
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In mid-February, Investigator Walter of the Montgomery
County (Maryland) Police Pawn Unit, notified Marion that the
computer had been pawned. Walter seized the computer from the
pawn shop and turned it over to Detective Little of Fairfax
County. Pomerantz left a telephone message for appellant, asking
about the pawned computer. Appellant contacted MCI and said that
the computer had been pawned. Appellant came to MCI on February
13, 1997, but did not return the computer.
Detective Little spoke with appellant on February 19, 1997.
Appellant told Little that he had borrowed a computer from Lease
to send e-mail messages. Appellant said that when he had
finished sending messages, Lease was gone. Appellant said that
he did not want to leave the computer unattended, so he took it
with him for "safe keeping." Appellant told Little that he kept
it for two to three months and, in February, when he needed money
to go to Tennessee, he pawned the computer to have money for the
trip. According to appellant, he intended to retrieve the
computer from the pawn shop when he returned from the trip.
Appellant returned to the pawn shop on February 28, 1997 and
paid $200 interest to extend the loan for thirty days. On March
26, 1997, appellant paid the pawn shop $1,070 in interest and
principal.
Lease, who was called as a witness for appellant, testified
that appellant was not authorized to take the computer away from
MCI and pawn it. Lease testified that from late November to
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mid-February, appellant never contacted him. Pomerantz and
Marion testified that appellant did not have permission to take
the computer or pawn it.
II.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).
Although regulated by statute, under Code § 18.2-95, the
1
crime of larceny is a common law offense. See Welch v.
Commonwealth, 15 Va. App. 518, 521, 425 S.E.2d 101, 104 (1992).
It is defined as follows:
"[T]he wrongful or fraudulent taking of
personal goods of some intrinsic value,
belonging to another, without his assent, and
with the intention to deprive the owner
thereof permanently. The animus furandi must
accompany the taking, but the wrongful taking
of property in itself imports the animus
furandi."
Id. at 521-22, 425 S.E.2d at 104 (quoting Dunlavey v.
Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)).
Thus, the Commonwealth must prove that the accused took the
property with "the intention to deprive the owner permanently of
his possession of the goods." Id. at 524, 425 S.E.2d at 105.
Intent may be proved by circumstantial evidence. See Wilson v.
1
Pursuant to Code § 18.2-95, grand larceny is "simple
larceny not from the person of another of goods and chattels of
the value of $200 or more . . . ."
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Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74 (1995). In
determining whether the Commonwealth has proven a specific
intent, "the factfinder may consider the conduct of the person
involved and all the circumstances revealed by the evidence."
Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 193, 198
(1987).
Larceny also involves a "trespassory" taking. See
Overstreet v. Commonwealth, 17 Va. App. 234, 236, 435 S.E.2d 906,
908 (1993). In Pritchard v. Commonwealth, 225 Va. 559, 303
S.E.2d 911 (1983), the Supreme Court of Virginia held that "[t]he
owner of personal property may deliver it to another upon
conditions, or in circumstances, which give the recipient bare
custody of the property. Constructive possession remains in the
owner." Id. at 562, 303 S.E.2d at 913 (emphasis added). The
Court in Pritchard, gave as an example "a watch handed to a
friend to time a race, the owner expecting its return at the end
of the race." Id. "'A felonious conversion of another's
property by one having bare charge or custody of it involves a
trespass and constitutes larceny.'" Overstreet, 17 Va. App. at
236, 435 S.E.2d at 908 (quoting 50 Am. Jur. 2d Larceny § 23
(1970)).
III.
Despite appellant's claims to the contrary, the
circumstantial evidence, particularly appellant's conduct,
established that he intended to permanently deprive MCI of the
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laptop computer.
Appellant "borrowed" the laptop computer on November 27,
1996, to access his e-mail. He took the computer from the
building on that date, allegedly for safe keeping. After
November 27, 1996, however, appellant did not attempt to return
the computer to its owners or even contact MCI employees about
his possession of the computer. 2
Instead, appellant altered the computer to show that it was
registered to him. Then, after keeping the computer for two
months, he took it, as if he owned it, and pawned it to finance a
trip to Tennessee. Appellant acknowledged his actions only when
confronted with the theft. His conduct proved larcenous intent.
The evidence also established the element of wrongful
taking. Although Lease did not place any explicit restrictions
on appellant's use of the computer, the circumstances under which
appellant received the computer gave him bare charge or custody
of the property. He received MCI's computer, while at MCI's
building, in order to access his e-mail. Just as the example in
Pritchard of a watch loaned to a friend to time a race, the owner
expecting its return at the end of the race, the computer's owner
expected return of the computer when appellant finished using it
for e-mail. Appellant's retention of the computer for months,
2
In appellant's statement to Detective Little, he said that
he had attempted to return the computer to Lease on November 27.
However, because Lease had left the office for the day,
appellant took the computer with him.
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his alteration of the computer to show he was the registered
owner, and his pawning of the computer to finance his personal
trip, constituted "a felonious conversion" of the property "by
one having bare charge or custody." Overstreet, 17 Va. App. at
236, 435 S.E.2d at 908.
The evidence was sufficient to prove beyond a reasonable
doubt that appellant was guilty of grand larceny of the computer.
Accordingly, we affirm the conviction.
Affirmed.
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