Richardson v. Com.

• Decision Date: 02 September 1997
• Docket Number: No. 2312-95-2,2312-95-2
• Citation: 25 Va.App. 491,489 S.E.2d 697
• Parties: David Eric RICHARDSON, s/k/a David Howell, a/k/a David Richardson v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 697

489 S.E.2d 697

25 Va.App. 491

David Eric RICHARDSON, s/k/a David Howell, a/k/a David Richardson v. COMMONWEALTH of Virginia.

Record No. 2312-95-2.

Court of Appeals of Virginia Richmond.

Sept. 2, 1997.

Felipita Athanas, Richmond, for appellant.

Marla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: MOON, C.J., and BAKER, BENTON, COLEMAN, ELDER, BRAY, FITZPATRICK and OVERTON, JJ.

UPON REHEARING EN BANC

COLEMAN, Judge.

This criminal appeal involves the construction and applicability of the "single larceny doctrine." The issue is whether the theft of two purses, which thefts occurred at or about the same time and from the same room, was a single larceny as a matter of law or whether the fact finder reasonably could have determined that two larcenies had occurred.

David Eric Richardson was convicted of two counts of grand larceny and two counts of felonious petit larceny. On appeal, Richardson contends that he was guilty of only a single act of larceny, not four separate larcenies. A panel of this Court held the evidence to be sufficient to prove that four separate larcenies had occurred. Richardson v. Commonwealth, 23 Va.App. 668, 479 S.E.2d 87 (1996). We granted a rehearing en banc to determine whether the theft of two of the purses from a hospital nurses' station was a single larceny or separate offenses. ¹ Because the Commonwealth's evidence and the reasonable inferences that could be drawn therefrom failed to prove that the two thefts were separate and distinct offenses, we hold that the theft of the two purses was, as a matter of law, a single larceny. Thus, we affirm the grand larceny conviction arising from the nurses' station theft; reverse and dismiss the petit larceny charge, which is subsumed by the former; and remand the grand larceny conviction for purposes of reconsideration of sentence based upon the actions taken herein.

BACKGROUND

On July 1, 1995, Richardson entered the Medical College of Virginia (MCV) hospital complex and stole three purses, a backpack, a watch, and a radio from three different locations within the complex. The stolen items belonged to four individuals and were stolen from three different floors or buildings within the complex. As is relevant to the thefts at issue, Richardson stole two purses that belonged to different employees. The purses were stolen from a nurses' station in the bone marrow transplant unit on the tenth floor of the North Hospital. One purse was located atop a desk and the other was located behind a cabinet approximately ten feet from the desk. The desk and cabinet were separated by a wall containing a "tube system" that delivers items, such as blood products and pharmacy medications, to and from the tenth floor. The purse located behind the cabinet could not be seen from the desk without walking around the wall. Because the value of the contents of one of the stolen purses exceeded $200, Richardson was convicted of grand larceny. For the theft of the other purse, he was convicted of felonious petit larceny. The trial judge sentenced Richardson to serve five years in the penitentiary for the grand larceny conviction, which sentence the judge suspended, and to fifty months in jail for the felonious petit larceny conviction, to be served concurrently with a fifty-month sentence that was imposed for the other felonious petit larceny conviction resulting from the theft of a purse from another building in the MCV complex.

ANALYSIS

Whether the larceny of multiple items at or about the same time from the same general location constitutes a single larceny or multiple offenses is an issue that most courts have addressed early in the development of their criminal jurisprudence. See Daniel H. White, Single or Separate Larceny Predicated Upon Stealing Property from Different Owners at the Same Time, 37 A.L.R.3d 1407, 1409-10 (1971); 50 Am.Jur.2d Larceny §§ 6-9 (1995). The concept is commonly referred to as the "single larceny doctrine." The principles are easily stated and understood, but application of the doctrine becomes problematic when applied to the infinite variety of circumstances that can arise. See, e.g., 37 A.L.R.3d at 1407 annot.; 50 Am.Jur.2d at §§ 6-9 nn. 47-79. Wharton's Criminal Law explains that a single larcenous taking of property, whether owned by one or several individuals, will be treated as a single criminal offense; conversely, if different articles are taken from different owners at different times, the thief has committed separate offenses. Charles E. Torcia, Wharton's Criminal Law §§ 346-47 (15th ed.1995).

In Alexander v. Commonwealth, 90 Va. 809, 20 S.E. 782 (1894), our Supreme Court 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 a 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.

Id. at 810, 20 S.E. at 783 (emphasis added). The Court later expounded on the doctrine, stating:

[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). The overriding principle behind the single larceny doctrine is to prevent the state from aggregating multiple criminal penalties for a single criminal act. Thus, in West the defendant could not be found guilty of separate larcenies for various items she stole from a trunk where the evidence failed to prove whether she had taken the items on one occasion or on separate occasions over a period of time. Where the application and enforcement of the criminal law is at issue, any ambiguity shall be resolved against the Commonwealth and in favor of the accused. See Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955).

There is no litmus test that will determine whether a defendant's conduct constitutes a single crime or multiple crimes. When a prosecutor's policy is to charge as many offenses as possible, the inquiry takes on added significance. Is, for example, the drug trafficker who has ten packets of cocaine in his pocket guilty of one or ten counts of possession with the intent to distribute? Is the assailant who...