Present: Carrico, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ.
TROY DYON TARPLEY
v. Record No. 001183 OPINION BY JUSTICE BARBARA MILANO KEENAN
March 2, 2001
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The sole issue in this appeal of a grand larceny conviction
is whether the Commonwealth proved beyond a reasonable doubt the
defendant's criminal intent.
Troy Dyon Tarpley was indicted for grand larceny in
violation of Code § 18.2-95. He was accused of stealing an
automobile, which was the property of William J. Bruce, III.
Tarpley was convicted of the offense in a bench trial in the
Circuit Court of the City of Martinsville and was sentenced to
four years' imprisonment, with one year suspended.
Tarpley appealed from his conviction to the Court of
Appeals, which affirmed the trial court's judgment in an
unpublished opinion. Tarpley v. Commonwealth, Record No. 2890-
98-3 (April 25, 2000). The Court held that the evidence of
criminal intent was sufficient to support Tarpley's conviction.
We awarded Tarpley an appeal limited to this issue.
We will state the evidence in the light most favorable to
the Commonwealth, the prevailing party in the trial court.
Dobson v. Commonwealth, 260 Va. 71, 73, 531 S.E.2d 569, 570
(2000); Commonwealth v. Taylor, 256 Va. 514, 516, 506 S.E.2d
312, 313 (1998). On the evening of July 22, 1998, Bruce drove
his 1996 Dodge Neon to the Villa Heights apartments in
Martinsville, where he met Tarpley, Jose Piggot, and another
acquaintance, Corey Hampton. * Bruce drove Tarpley, Piggot, and
Hampton to Rivermont Apartments, where Tarpley had been residing
temporarily, first with his mother and then with his girlfriend.
After arriving at the apartment complex, Tarpley and
Hampton got out of the car while Bruce and Piggot remained
inside. A group of between 10 and 15 persons had gathered in
the area around Bruce's car. An unidentified member of this
group reached into the car and "fussed at" Piggot, who was
seated in the front passenger seat next to Bruce.
Bruce testified that he climbed out of the vehicle with the
intent to move the person away from his car and told this
unidentified person, "[T]ake that mess somewhere else, I don't
need it around my car." Bruce immediately became involved in a
fight but did not remember anything that happened afterward
because he was "knocked unconscious." Bruce also testified that
the value of his car was between $9,000 and $10,000, and that he
had not given anyone permission to take it.
*
Bruce testified that the fourth occupant of the car was
named Mike, while Tarpley testified that this person was named
Corey Hampton. In the balance of this opinion, we will refer to
that person as Hampton.
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Robert Smith, a resident of Rivermont Apartments who
observed the fight, described the following events:
Q. Tell the Court what was going on prior to the car
being crashed[.]
A. I came out and they were fighting. They was a
right good distance from me and so I came down a little
closer to it. I said, well, I'll stop here and then they
beat this boy to [sic] it looked like he passed out and
then two of them jumped in the car.
Q. When you say they, what were they doing before
they jumped into the car?
A. They was into the fight.
When asked whether Bruce "got beat up by the boys that
don't live in Rivermont Apartments," Smith answered, "Some of
them." Smith testified that the two men who entered Bruce's car
after Bruce was rendered unconscious "came out of the bunch that
was fighting." Smith stated that after the first man was
unsuccessful in his attempt to drive the car, the other man
moved to the driver's seat and began to drive the car away from
the fight scene at a high rate of speed. Smith observed this
man drive the car farther into the complex to the end of the
road before turning the car around and driving toward the exit
to the complex. Smith noted that at this point, the car was
moving erratically and hit some curbing, left the road, and
"crashed" into some trees.
Tarpley testified on his own behalf and stated that he was
not struck during the fight, and that he did not strike Bruce or
Piggot. Tarpley also testified that he did not know the man who
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"fussed at" Piggot and did not know the persons who attacked
Bruce.
Tarpley stated that after Bruce was rendered unconscious,
Piggot and Tarpley got into Bruce's car and Piggot attempted to
drive the car away from the scene. According to Tarpley, Piggot
drove Bruce's car "up on the [curb], like on the sidewalk," near
the fight scene. Tarpley testified that Piggot then left the
car and "took off running," and Tarpley moved into the driver's
seat and drove the car away from the fight scene farther into
the apartment complex. Tarpley next turned the car around and
was driving toward the exit to the complex when he "[d]rove off
of the hill" and "wrecked" the car.
When Tarpley's counsel asked him whether he stole Bruce's
car, Tarpley responded, "I drove away[;] my intent wasn't to
steal it." Tarpley testified that he drove the car away from
the fight scene because he was afraid and was attempting to
obtain help. When asked why he did not run home to call the
police instead of taking Bruce's car, Tarpley stated that he was
afraid to get out of Bruce's car, and that neither his mother
nor his girlfriend had a telephone.
Tarpley also stated that he did not go to another apartment
to call the police after driving farther into the apartment
complex, because he still was not that far away from the fight
scene, and was "trying to get away from the whole fight or
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whatever." Tarpley admitted that nobody was chasing him but
testified that he was concerned that he might be in danger
because the people who were "beating up" Bruce might "turn on"
Tarpley. Tarpley acknowledged during his testimony that he
previously had been convicted of a felony and of misdemeanors
involving moral turpitude. At the conclusion of this evidence,
the trial court found Tarpley guilty of grand larceny.
The Court of Appeals held that the evidence was sufficient
to show that Tarpley intended to deprive Bruce permanently of
his vehicle. Tarpley, Record No. 2890-98-3, slip op. at 4. In
support of this conclusion, the Court stated:
[T]here was credible evidence that [Tarpley] was
involved in the fight in which Bruce was knocked
unconscious. Once Bruce was unconscious, [Tarpley]
drove Bruce's car away from the scene at a high rate
of speed. [Tarpley] did not stop at any of the
apartments to attempt to get help. Instead, he drove
for the exit to the apartment complex.
Id. at 3-4.
On appeal, Tarpley argues that the evidence is insufficient
to convict him of grand larceny because it fails to establish
his larcenous intent. He contends that if he "committed any
criminal act at all, it was unauthorized use of an automobile,"
in violation of Code § 18.2-102, by temporarily depriving Bruce
of the use of his car. Tarpley asserts that the evidence shows
that he acted to remove himself from the scene of the fight, and
that there is no evidence that he intended to keep the car once
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he escaped from this position of danger. Tarpley alternatively
argues that while the Commonwealth would impute a criminal
character to his acts, those arguments are based on speculation
and raise only a suspicion of guilt.
In response, the Commonwealth argues that the Court of
Appeals correctly concluded that the evidence is sufficient to
establish that Tarpley intended to deprive Bruce permanently of
his vehicle. Tarpley was among the group of persons who were
fighting and attacked Bruce and, although Tarpley denied
striking Bruce, he drove away in Bruce's car after Bruce was
rendered unconscious. The Commonwealth emphasizes that the fact
finder was not required to believe Tarpley's explanation for
taking the car and was permitted to infer that he was lying to
conceal his guilt. The Commonwealth also contends that the
issue whether a hypothesis of innocence is reasonable presents a
question of fact, the resolution of which is binding on appeal
unless plainly wrong.
When a defendant challenges the sufficiency of the evidence
on appeal, the reviewing court must give the judgment of the
trial court sitting without a jury the same weight as a jury
verdict. Hickson v. Commonwealth, 258 Va. 383, 387, 520 S.E.2d
643, 645 (1999); Taylor, 256 Va. at 518, 506 S.E.2d at 314. The
appellate court has the duty to examine the evidence that tends
to support the conviction and to uphold the conviction unless it
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is plainly wrong or without evidence to support it. Code
§ 8.01-680; Taylor, 256 Va. at 518, 506 S.E.2d at 314;
Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265
(1998). However, the appellate court is equally obligated to
set aside the trial court's judgment when it is contrary to the
law and the evidence and, therefore, the judgment is plainly
wrong. Hickson, 258 Va. at 387, 520 S.E.2d at 645.
Larceny, a common law crime, is the wrongful or fraudulent
taking of another's property without his permission and with the
intent to deprive the owner of that property permanently.
Stanley v. Webber, 260 Va. 90, 96, 531 S.E.2d 311, 315 (2000);
Taylor, 256 Va. at 518, 506 S.E.2d at 314; Bryant v.
Commonwealth, 248 Va. 179, 183, 445 S.E.2d 667, 670 (1994).
Under Code § 18.2-95, grand larceny includes the taking, not
from the person of another, of goods that have a value of $200
or more. Stanley, 260 Va. at 96, 531 S.E.2d at 315; Taylor, 256
Va. at 518, 506 S.E.2d at 314.
A conviction of larceny requires proof beyond a reasonable
doubt of the defendant's intent to steal, which must accompany
his taking of the property. Bryant, 248 Va. at 183, 445 S.E.2d
at 670; Skeeter v. Commonwealth, 217 Va. 722, 725, 232 S.E.2d
756, 758 (1977). The element of criminal intent may, and often
must, be inferred from the facts and circumstances of the case,
including the actions of the defendant and any statements made
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by him. Stanley, 260 Va. at 96, 531 S.E.2d at 315, Taylor, 256
Va. at 519, 506 S.E.2d at 314.
Applying the above-stated standard of review, we conclude
that the evidence is insufficient as a matter of law to
establish Tarpley's larcenous intent at the time he drove
Bruce's car away from the fight. There was no evidence that
Tarpley attacked Bruce during the fight or that he assisted
anyone who struck Bruce. Although the trial court was entitled
to disbelieve Tarpley's account of the fight, the court received
no evidence that Tarpley actually participated in the
altercation.
The trial court also was entitled to disbelieve Tarpley's
assertion that he did not intend to "steal" the car when he
drove it away from the scene of the fight. However, the trial
court's rejection of that testimony does not provide a factual
basis for establishing beyond a reasonable doubt that Tarpley
intended to deprive Bruce of his car permanently, rather than
temporarily. The balance of the evidence showed only that he
did not try to obtain help before attempting to leave the
apartment complex, and that he drove Bruce's car for a very
brief period of time. Thus, the trier of fact could not
determine, without speculation, that Tarpley intended to deprive
Bruce of his car permanently. Accordingly, we hold that the
evidence viewed in the light most favorable to the Commonwealth
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established only a suspicion or a probability of guilt and was
insufficient as a matter of law to support the grand larceny
conviction. See Rogers v. Commonwealth, 242 Va. 307, 317, 410
S.E.2d 621, 627 (1991); Cheng v. Commonwealth, 240 Va. 26, 42,
393 S.E.2d 599, 608 (1990); Bishop v. Commonwealth, 227 Va. 164,
170, 313 S.E.2d 390, 393 (1984).
For these reasons, we will reverse the judgment of the
Court of Appeals and dismiss the indictment.
Reversed and dismissed.
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