Acey v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judge Bray and
Senior Judge Overton ∗
Argued at Norfolk, Virginia

CHARLES RICHARD ACEY
OPINION BY
v. Record No. 2618-97-1 JUDGE NELSON T. OVERTON
MARCH 9, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel Taylor Powell, III, Judge

Dwight G. Rudd (George U. Brooks, III; Wood &
Brooks, on brief), for appellant.

Kathleen B. Martin, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Charles Richard Acey (defendant) appeals his multiple

convictions for larceny of a firearm, in violation of Code

§ 18.2-108.1, and the knowing and intentional possession of a

firearm by a convicted felon, in violation of Code § 18.2-308.2.

He contends: (1) the evidence was insufficient to prove he

intended to steal the firearms; (2) the taking of three firearms

in the circumstances of this case should result in only one

conviction for larceny instead of three; and (3) the possession

of three weapons in the circumstances of this case should result

in only one conviction for possession instead of three. We hold

∗
Judge Overton participated in the hearing and decision of
this case prior to the effective date of his retirement on
January 31, 1999 and thereafter by his designation as a senior
judge pursuant to Code § 17.1-401, recodifying Code
§ 17-116.01:1.
that the evidence was sufficient to prove the requisite intent,

but only a single conviction for larceny and a single conviction

for possession of a firearm were warranted. Thus, we reverse in

part and affirm in part.

Facts

"An appellate court must discard all evidence of the accused

that conflicts with that of the Commonwealth and regard as true

all credible evidence favorable to the Commonwealth and all fair

inferences reasonably deducible therefrom." Lea v. Commonwealth,

16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993). So viewed, the

record established that on the afternoon of June 27, 1996,

defendant left work, bought a package of beer and drank several

cans. He proceeded to a local restaurant where he met a friend,

Roger Viall, and both men became intoxicated. After visiting

another eatery, Viall drove them to his home in his car.

Officer Foster of the James City County Police Department

saw Viall driving erratically and stopped him as he entered his

driveway. Officer Foster arrested Viall for driving while under

the influence of alcohol. Just prior to the arrest, Viall gave

defendant the keys to his home and car. Viall testified that he

told defendant to go inside the house. Defendant, however,

testified that Viall told him to "get rid of the guns or lose

them." Viall kept a collection of firearms in his house,

including automatic weapons, which defendant suspected were

illegally possessed. Defendant believed Viall wanted him to

dispose of the guns to prevent their discovery by police.

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 Defendant entered the house and drank more beer. He then

went to Viall's bedroom and took a shotgun from the closet, a

handgun from the dresser and a handgun from a holster hanging on

the bed. Defendant saw a crate full of weapons located in the

closet but did not touch them.

While defendant was so engaged within the house, Officer

Foster transported Viall to the police station. After they

departed, defendant placed the weapons in Viall's car and drove

to his own home in Lanexa. Upon arrival, defendant telephoned

the New Kent County Sheriff's office and told the dispatcher that

he had some guns and felt suicidal. He also called several

friends and informed them he was armed. Defendant re-entered

Viall's car, which still contained the guns, and drove toward his

girlfriend's house. A state trooper stopped defendant on the

highway and an altercation occurred that led to defendant's

arrest.

The trial court found defendant guilty of three counts of

larceny of a firearm; one for each firearm. Similarly, the trial

court found defendant guilty of possession of a firearm by a

felon and returned three additional convictions. The trial court

sentenced defendant to two years in prison, suspended, for each

larceny conviction and five years in prison for each possession

conviction, with the sentences for two of the three possession

convictions suspended. Defendant's appeal followed.

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 Sufficiency of the Evidence

We hold that the trial court did not err by finding the

evidence sufficient to prove defendant intended to commit larceny

of a firearm. Code § 18.2-108.1(1) prohibits "simple larceny of

a firearm not from the person." 1 Because larceny is not defined

by statute, we look to the common-law to establish the elements

of the offense. "Larceny is the wrongful taking of the goods of

another without the owner's consent and with the intention to

permanently deprive the owner of possession of the goods."

Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444

(1987) (citing Dunlavey v. Commonwealth, 184 Va. 521, 524, 35

S.E.2d 763, 764 (1945)). "Intent is the purpose formed in a

person's mind which may, and often must, be inferred from the

facts and circumstances in a particular case." Ridley v.

Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979).

Defendant asserts that the circumstances do not support the

inference that he intended to permanently deprive Viall of his

guns when he took them. Upon a review of the evidence, we

disagree.

Defendant claims that Viall told him to "get rid of the

guns" as he passed his keys to defendant, yet neither the

arresting officer nor Viall himself remembers this statement.

Defendant further claims he took the three firearms in order to

1
The language under which defendant was convicted was deleted
from Code § 18.2-108.1(1) and added to Code § 18.2-95(iii) in
1998.

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prevent their discovery by the police. Yet he left behind a

crate full of weapons in the house. If his true intent was to

protect Viall by disposing of the weapons, this purpose was not

served by taking only a few. When defendant was asked why he

only took three weapons, leaving the balance behind, he

responded, "Not my problem." These facts support the conclusion

that defendant's intent was felonious.

The fact that defendant later informed the police that he

possessed the weapons does not relieve him of culpability.

Intent is gauged at the moment the crime is complete, not at some

later time when feelings of remorse or fear lead the perpetrator

to confess his wrongdoing. See Welch v. Commonwealth, 15 Va.

App. 518, 524 n.4, 425 S.E.2d 101, 106 n.4 (1992) ("'When one

wrongfully takes property of another with intent to deprive the

owner thereof, larceny is complete, though the accused afterwards

abandons it.'" (quoting Slater v. Commonwealth, 179 Va. 264, 267,

18 S.E.2d 909, 911 (1942))). In these circumstances, the trial

court was entitled to infer defendant maintained the requisite

intent when he took the weapons. Because that finding is

supported by the evidence, we affirm it.

Single Larceny Doctrine

A series of larcenous acts will be considered a single count

of larceny if they "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). We must consider the

following factors when deciding whether the single larceny

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doctrine applies: (1) the location of the items taken, (2) the

lapse of time between the takings, (3) the general and specific

intent of the taker, (4) the number of owners of the items taken

and (5) whether intervening events occurred between the takings.

See Richardson v. Commonwealth, 25 Va. App. 491, 497, 489 S.E.2d

697, 700 (1997). "The primary factor to be considered is the

intent of the thief . . . ." See id.

We hold that defendant's actions fall within the scope of

the single larceny doctrine. The weapons were located within a

few feet of each other. There was no appreciable lapse of time

between the takings, only time enough for defendant to step from

the closet, to the dresser and then to the headboard of the bed.

Defendant's intent, as we have decided, was to steal the weapons,

but there is no indication he formed this intent separately for

each item. Rather, his actions show he was motivated by one

compulsion to steal. A single person owned all three guns, and

the record does not reveal that any intervening events took place

between the takings. This case presents an archetypal example of

the circumstances underlying the single larceny doctrine.

The Commonwealth argues that larcenies under Code

§ 18.2-108.1(1) should be exempt from application of the single

larceny doctrine. The Commonwealth asserts that the General

Assembly distinguished the crime of larceny of a firearm from

common-law larceny and thus, it would be improper to apply the

common-law doctrine to a prosecution arising under Code

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§ 18.2-108.1(1). We find the Commonwealth's argument

unpersuasive.

"The common law of England, insofar as it is not repugnant

to the principles of the Bill of Rights and Constitution of this

Commonwealth, shall continue in full force within the same, and

be the rule of decision, except as altered by the General

Assembly." Code § 1-10. "Although the General Assembly can

abrogate the common law, its intent to do so must be plainly

manifested." Wackwitz v. Roy, 244 Va. 60, 65, 418 S.E.2d 861,

864 (1992) (citations omitted). An examination of Code

§ 18.2-108.1(1) reveals no such intent. 2 The statute did nothing

more than make the punishment for larceny of a firearm more

severe than that for petit larcenies in general. See Code

§ 18.2-96. The definition of larceny remains unaffected, as it

is in other provisions of Chapter 18.2 addressing larceny. The

Commonwealth has cited no case, nor can we find one, which treats

larceny of a firearm as anything other than common-law larceny.

Indeed, the recent inclusion of the offense with other larcenies

under Code § 18.2-95 militates against that conclusion. We hold

2
At the time defendant was convicted, Code § 18.2-108.1, read:

Notwithstanding the provisions of Code § 18.2-96 or
§ 18.2-108:
1. Any person who commits simple larceny of
a firearm not from the person shall be guilty
of a Class 6 felony.
2. Any person who buys or receives a
firearm from another person or aids in
concealing a firearm, knowing that the firearm
was stolen, shall be guilty of a Class 6
felony and may be proceeded against although

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that the single larceny doctrine may be applied to larceny of a

firearm. Accordingly, we affirm one conviction for larceny of a

firearm and reverse and dismiss the remaining larceny

convictions.

Single Possession Doctrine

Defendant lastly asserts the trial court erred by ruling

that possession by a convicted felon of two or more firearms at

the same time and place constitutes multiple violations of Code

§ 18.2-308.2. He asserts that Code § 18.2-308.2 should be

interpreted to provide for only one conviction in the

circumstances of the instant case. We agree.

"When considering multiple punishments for a single

transaction, the controlling factor is legislative intent."

Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104

(1983) (citing Missouri v. Hunter, 459 U.S. 359 (1983);

Cartwright v. Commonwealth, 223 Va. 368, 288 S.E.2d 491 (1982)).

The language of the statute provides little indication of the

General Assembly's intent. The statute makes it unlawful for

"any person who has been convicted of a felony . . . to knowingly

and intentionally possess or transport any firearm." 3 We hold

______________
the principal offender is not convicted.
3
The full text of Code § 18.2-308.2(A) reads:

It shall be unlawful for (i) any person who
has been convicted of a felony or (ii) any
person under the age of twenty-nine who was
found guilty as a juvenile fourteen years of
age or older at the time of the offense of a
delinquent act which would be a felony if
committed by an adult, whether such

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that the word "any" preceding the object of the offense,

"firearm," creates an ambiguity. While no appellate court of the

Commonwealth has addressed this issue, many other jurisdictions

have. All are in agreement that "it is impossible to decipher

whether the word 'any' is intended to include the possession of a

firearm or ammunition as a singular activity or as a 'plural

activity.'" State v. Auwae, 968 P.2d 1070, 1079 (1998). See

also United States v. Rosenbarger, 536 F.2d 715, 721 (6th Cir.

1976); Hill v. State, 711 So.2d 1221, 1223 (1998). Where such an

ambiguity exists and no legislative intent is apparent, we must

look to the "gravamen of the offense" and establish the unit of

prosecution by which the state may assess punishment. See Shears

v. Commonwealth, 23 Va. App. 394, 401, 477 S.E.2d 309, 312

(1996).

We took up the first of these issues in Jones v.

Commonwealth, 16 Va. App. 354, 429 S.E.2d 615 (1993), aff'd en

banc, 17 Va. App. 233, 436 S.E.2d 192 (1993). In Jones, we were

asked whether a BB projection gun was a "firearm" for purposes of

______________
conviction or adjudication occurred under the
laws of this Commonwealth, or any other
state, the District of Columbia, the United
States or any territory thereof, to knowingly
and intentionally possess or transport any
firearm or to knowingly and intentionally
carry about his person, hidden from common
observation, any weapon described in
§ 18.2-308 A. A violation of this section
shall be punishable as a Class 6 felony. Any
firearm or any concealed weapon possessed,
transported or carried in violation of this
section shall be forfeited to the

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Code § 18.2-308.2. In order to dispose of the question, we were

required to examine the purpose and policy that supported the

criminalization of this possession offense. We held that "[t]he

statute does not seek to protect the public from fear of harm

caused by the display of weapons; rather, it is concerned with

preventing a person, who is known to have committed a serious

crime in the past, from becoming dangerously armed, regardless of

whether that person uses, displays, or conceals the firearm."

Id. at 358, 429 S.E.2d at 617. It is the "real threat of harm"

that an armed felon might wreak which justified enactment of Code

§ 18.2-308.2. Id. at 357, 429 S.E.2d at 616. See also Mayhew v.

Commonwealth, 20 Va. App. 484, 491, 458 S.E.2d 305, 308 (1995)

("possession of firearms by felons presents a high risk of harm

to others").

If the possession of a firearm by a felon is, of itself, the

dangerous act, the number of weapons with which a felon is armed

becomes irrelevant. Whether the felon bears one or one hundred

firearms, the felon is "dangerously armed." The critical

distinction would then lie in the dangerousness of the weapon

possessed, which underpinned our decision in Jones.
Upon consideration of the purposes of Code § 18.2-308.2 and

being mindful that "penal statutes must be strictly construed

against the Commonwealth and applied only in those cases clearly

falling within the language of the statute," Branch v.

______________
Commonwealth and disposed of as provided in
§ 18.2-310.

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Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992),

we hold that when defendant possessed the firearms, he committed

a single offense under Code § 18.2-308.2, not three. In so

holding, we follow "[t]he general rule . . . that when a

convicted felon acquires two or more firearms in one transaction

and stores and possesses them together, he commits only one

offense." United State v. Mullins, 698 F.2d 686, 687 (4th Cir.

1983). See also Rosenbarger, 536 F.2d at 721; United States v.

Kinsley, 518 F.2d 665 (8th Cir. 1975). When defendant seized the

three firearms at issue he became dangerous, perhaps inordinately

so, but we cannot say the purposes of Code § 18.2-308.2 are

better served by three punishments rather than one.

In summary, we hold that the evidence was sufficient to

support defendant's conviction for larceny of a firearm but the

trial court erred by thrice convicting defendant of larceny of a

firearm and possession of a firearm by a felon. Accordingly, we

affirm one conviction of larceny of a firearm and one conviction

of possession of a firearm by a felon and reverse and dismiss the

remaining convictions. We remand the affirmed convictions to the

trial court for re-sentencing in accordance with the decision of

this panel.
Affirmed in part, reversed in
part, dismissed in part and
remanded.

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