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
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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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