Richardson v. Commonwealth

COLEMAN, Judge,

concurring in part, and dissenting in part.

I concur with the majority that the evidence supports the finding that appellant’s theft of a purse and its contents from the second floor burn unit of the North Hospital and the theft of a backpack, watch, and radio from the seventh floor respiratory therapy department of the West Hospital were separate larcenies. However, in my opinion, the evidence is insufficient to support the finding that the theft from the tenth floor nurses’ station in the North Hospital of two purses and their contents, one taken from atop a desk and the other from behind a cabinet ten feet away, were separate larcenies. Accordingly, I dissent from the majority’s affirmance of the felonious petit larceny conviction in Indictment F-95-2462.

In treating the theft of the two purses from the tenth floor as separate offenses, the trial judge convicted the defendant of grand larceny, for which he imposed a five year suspended penitentiary sentence, and felonious petit larceny, for which he imposed a fifty-month sentence to be served concurrently with the fifty-month sentence imposed for the other felonious petit larceny conviction in Indictment F-95-2461. I would hold that the felonious petit larceny conviction under Indictment F-95-2462 was subsumed by the grand larceny conviction under Indictment F-95-2373. Therefore, I woüld reverse the conviction and dismiss Indictment F-95-2462. However, because the trial judge may have taken into consideration the circumstances surrounding the theft of a second purse in determining the appropriate sentence or whether to suspend that sentence, I would vacate the sentence for the- grand larceny conviction in Indictment F-95-2373 and would remand that conviction for resentencing. See Woodward v. Commonwealth, 16 Va.App. 672, 673, 432 S.E.2d 510, 511 (1993).

With one significant exception, I agree with the majority’s construction of the legal principles which define the “single *677larceny doctrine.” As I understand the holding, the majority construes the “single larceny doctrine” to permit the fact finder to determine from the circumstances whether the thief had a single intent to steal multiple items or separate intents to commit a series of larcenies. The majority obviously bases this holding on the principle that intent to steal is a fact dependent upon the thiefs state of mind, which must be determined in each instance from the circumstances and inferences reasonably deducible therefi’om; therefore, the determination of intent is solely within the fact finder’s domain.

In my opinion, there are situations, such as exist in this case, where the evidence is insufficient as a matter of law to support a finding or to permit the fact finder to conclude that the thief formed separate intents to steal separate items. As the majority observes, “a defendant [can] be convicted of separate thefts only if the evidence showed the offenses to be separate and distinct and not committed pursuant to one intention, one impulse, or one plan.” State v. Stoops, 4 Kan.App.2d 130, 603 P.2d 221, 229 (1979) (emphasis added). Where the evidence merely shows the theft of more than one item at the same time and location and the facts do not support an inference that one theft was completed before the other was commenced, the fact finder is not permitted to speculate that the thief completed one larceny and then separately formed the intent to steal a second item.

In this case, the evidence does not show that the defendant went to the tenth floor nurses’ station intending to steal a particular item and then, after doing so, observed and stole a separate item or that after stealing one purse he formed a separate intent to steal another purse. In my opinion, the only conclusion which can be reasonably drawn from the facts on this record is that the defendant went to the nurses’ station intending to steal purses or other items of value and that he stole two purses during “one continuous act or transaction.” See 50 Am.Jur.2d Larceny § 7 (1995).

The majority places great emphasis on the facts that the two purses at the nurses’ station were ten feet apart, that one *678was on a desk and the other behind a cabinet, and that apparently some type of wall separated the desk from the cabinet. In my opinion, these facts do not raise a factual issue as to whether the thief formed separate intents to steal. These facts support only the inference that the thief went to the nurses’ station intending to steal purses or whatever items of value he could find and at that time stole two purses.

Our Supreme Court has 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 one 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.

Alexander v. Commonwealth, 90 Va. 809, 810, 20 S.E. 782, 783 (1894) (emphasis added). The Court later expounded on the doctrine:

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). Here, because no proven facts permitted the fact finder to infer that the defendant formed separate and distinct intents and, thus, completed separate and distinct larcenies at the tenth floor nurses’ station, I would affirm the grand larceny conviction under Indictment F-95-2373 but would reverse and dismiss the felonious petit larceny conviction. I would vacate the sentence for the grand larceny conviction under Indictment F-95-2373 and remand that conviction for resentencing.