Marsh v. Commonwealth of Va..

• Decision Date: 08 February 2011
• Docket Number: Record No. 2396–09–4.
• Citation: 57 Va.App. 645,704 S.E.2d 624
• Parties: Bernard Chesley MARSHv.COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

57 Va.App. 645

704 S.E.2d 624

Bernard Chesley MARSH

v.COMMONWEALTH of Virginia.

Record No. 2396–09–4.

Court of Appeals of Virginia, Alexandria.

Feb. 8, 2011.

Corinne J. Magee (The Magee Law Firm, PLLC, McLean, on brief), for appellant.Karen Misbach, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.Present: HUMPHREYS, McCLANAHAN and ALSTON, JJ.HUMPHREYS, Judge.

Bernard Chesley Marsh (“Marsh”) was convicted in a bench trial of grand larceny, in violation of Code § 18.2–95, and was sentenced to four years incarceration with all but sixty days suspended. On appeal, Marsh argues that the trial court erred in finding the evidence sufficient to support his conviction of grand larceny. Specifically, he contends that he never intended to permanently deprive Rhonda Gazda (“Gazda”) of her property. For the following reasons, we disagree and affirm the trial court's conviction.

BACKGROUND

“Where the issue is whether the evidence is sufficient, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.” Sandoval v. Commonwealth, 20 Va.App. 133, 135, 455 S.E.2d 730, 731 (1995). So viewed, the evidence is as follows.

On October 17, 2008, Marsh went to Gazda's apartment to attend a birthday party with her. Gazda, Marsh's girlfriend of approximately two years, was getting ready when she noticed she was missing a ring from her jewelry box along with some other items. She asked Marsh if he had taken the missing items. Marsh replied he had needed some quick cash so he had pawned the items,¹ but he would get the jewelry back when he got paid the next day.² They then attended the birthday party together. Upon returning to her apartment after the party, Gazda told Marsh she did not want him staying with her. After Marsh left, Gazda called the police, and reported the missing items as stolen property. Gazda testified that she never allowed Marsh to take items or pawn items before even though he had done so in March 2008, with some of the same pieces and had subsequently returned them.

Detective Richard Buisch, with the Fairfax County Police Department, became involved with the case when he came in contact with Gazda on an unrelated matter. Gazda informed Detective Buisch that she had reported the stolen property, and asked what had happened with regards to the report. Detective Buisch contacted Marsh, and made arrangements with him for the return of the items. Marsh returned some of the items that he had pawned to Detective Buisch, and informed him that he was trying to save up money to purchase the other items back.³ After giving Marsh two to three weeks to come up with the money to retrieve the rest of the items, Detective Buisch placed a hold on them when Marsh did not obtain the rest of the items, retrieved them from Vienna Jewelry and Estate Buyers in Vienna, Virginia, and returned them to Gazda.

Suzette Marsham, the manager of Vienna Jewelry and Estate Buyers, testified that Marsh had brought in jewelry on several occasions and used it as collateral for loans. She stated that using the jewelry as collateral was different than a sales transaction because using the jewelry as collateral permitted the individual to come back and retrieve the jewelry.⁴ Ms. Marsham testified that on one of the occasions when Marsh brought in jewelry, a couple of the transactions had been written up as sales transactions rather than as loan transactions with the jewelry as collateral. However, upon seeing the transactions were improperly written up, Marsh insisted that the items were not to be sold, and Ms. Marsham redid the paperwork to reflect that the transactions were loan transactions and not sales transactions. The receipts indicate that Marsh received $2,975 and that payments had not been received on some of the loans.⁵ Gazda testified that she thought the approximate value of the jewelry taken was $25,000.

Marsh took the stand at trial and testified that he had taken the items and pawned them to help carry him through a job he was working on. Marsh stated that he had initially needed approximately $500. When asked why he continued to pawn more items after he received that amount, he replied “[b]y then I was in a position where I was robbing Peter to pay Paul ... [t]hat was Ms. Gazda to pay the shop.” He also stated that he had informed Gazda he would get her items back when he was paid the next day. Marsh further testified that it was always his intent “to redeem [the jewelry] and give it back to her” as soon as he received his check.

At trial, Marsh made a motion to strike the charge against him, contending that the evidence was insufficient to prove he intended to permanently deprive Gazda of the jewelry. The trial court denied the motion, and found him guilty of grand larceny. Marsh now appeals to this Court.

ANALYSIS

In a challenge to the sufficiency of the evidence, “we ‘presume the judgment of the trial court to be correct,’ and ‘will not set it aside unless it is plainly wrong or without evidence to support it.’ ” Davis v. Commonwealth, 39 Va.App. 96, 99, 570 S.E.2d 875, 876–77 (2002) (quoting Broom v. Broom, 15 Va.App. 497, 504, 425 S.E.2d 90, 94 (1992); Dodge v. Dodge, 2 Va.App. 238, 242, 343 S.E.2d 363, 365 (1986)). The reviewing court, under this standard, does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original and citation omitted). Instead, the reviewing court asks whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. at 2789 (emphasis in original). When reviewing the sufficiency of the evidence to support a conviction, “we determine whether the evidence, viewed in the light most favorable to the prevailing party, the Commonwealth, and the reasonable inferences fairly deducible from that evidence support each and every element of the charged offense.” Haskins v. Commonwealth, 31 Va.App. 145, 149–50, 521 S.E.2d 777, 779 (1999).

“In Virginia, larceny is a common law crime. We have defined larceny as ‘the 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.’ ” Carter v. Commonwealth, 280 Va. 100, 104–05, 694 S.E.2d 590, 593 (2010) (quoting Skeeter v. Commonwealth, 217 Va. 722, 725, 232 S.E.2d 756, 758 (1977)). “Stated simply, larceny requires that there be a taking and asportation of the seized goods, coupled with an intent to steal those goods.” Id. at 105, 694 S.E.2d at 593 (citing Britt v. Commonwealth, 276 Va. 569, 575, 667 S.E.2d 763, 766 (2008)). Code § 18.2–95 defines grand larceny and provides, in pertinent part, that “[a]ny person who ... (ii) commits simple larceny not from the person of another of goods and chattels of the value of $200 or more ... shall be guilty of grand larceny....”

“ ‘The defendant's intent to steal must exist at the time the seized goods are moved.’ ” Id. at 105, 694 S.E.2d at 593–94 (quoting Britt, 276 Va. at 575, 667 S.E.2d at 766). “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 by him.” Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 764 (2001) (citing Stanley v. Webber, 260 Va. 90, 96, 531 S.E.2d 311, 315 (2000); Commonwealth v. Taylor, 256 Va. 514, 519, 506 S.E.2d 312, 314 (1998)). “In Virginia, absent countervailing evidence of intention otherwise, ‘the wrongful taking of the property in itself imports the animus furandi.’ In other words, the very existence of a trespassory taking permits the inference (unless other circumstances negate it) that the taker intended to steal the property.' ” McEachern v. Commonwealth, 52 Va.App. 679, 685, 667 S.E.2d 343, 346 (2008) (citations omitted).

However, “ ‘[o]ne who takes another's property intending at the time he takes it to use it temporarily and then to return it unconditionally within a reasonable time—and having a substantial ability to do so—lacks the intent to steal required for larceny.’ ” Carter, 280 Va. at 107, 694 S.E.2d at 595 (quoting 3 Wayne R. LaFave, Substantive Criminal Law § 19.5(b), at 89 (2d ed.2003)). “An intent to return, however, must be unconditional. Thus it is no defense to larceny that the taker intends to return the property only if he should receive a reward for its return, or only upon some other condition which he has no right to impose.” Id. (citing LaFave, supra, at 90).

As noted above, it is not a defense to larceny merely to have an intent to return the property; in addition one must, at the time of taking, have a substantial ability to do so (even though, as events turn out, it may later become impossible to do so).... So too, an intent to pawn the property, accompanied by an intent later to redeem the property and return it to its owner, is a defense only if the taker's financial situation is such that he has an ability to redeem it.

LaFave, supra, at 91; see also State v. Langford, 483 So.2d 979, 985 (La.1986) (“[T]o counter inferred or proven intent to permanently deprive, a defendant must show both that he had the intent to return the property within a reasonable time, and that he had a substantial ability to do so.” (citing LaFave & Scott, Criminal Law § 88 (1972))); Putinski v. State, 223 Md. 1, 161 A.2d 117, 119 (1960) (“ ‘If a man takes another's goods with intent to pawn them, and does so, he is clearly guilty of larceny if he does not intend to redeem and return them. And he is guilty even if he does intend to redeem and return them, if he does not show ability to do so, or at least a fair and reasonable expectation of ability. If he shows...