Tanner v. Commonwealth, Record No. 2672-08-4 (Va. App. 1/19/2010)

• Decision Date: 19 January 2010
• Docket Number: Record No. 2672-08-4.
• Court: Virginia Court of Appeals
• Parties: GREGORY BRYCE TANNER v. COMMONWEALTH OF VIRGINIA.

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GREGORY BRYCE TANNER v. COMMONWEALTH OF VIRGINIA.

Record No. 2672-08-4.

Court of Appeals of Virginia, Alexandria.

January 19, 2010.

Appeal from the Circuit Court of Arlington County, James F. Almand, Judge.

Sara M. Bieker (Office of the Public Defender, on brief), for appellant.

Craig W. Stallard, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: Judges KELSEY, HALEY and POWELL.

MEMORANDUM OPINION^*

JAMES W. HALEY, JR.

I. INTRODUCTION

Appealing his conviction for grand larceny in violation of Code § 18.2-95, Gregory Bryce Tanner argues the Commonwealth failed to prove he acted under a single intent when committing his two thefts and that without such proof the Commonwealth could not employ the single larceny doctrine to combine the value of the thefts, which individually were worth less than the amount necessary for grand larceny, into an amount exceeding the threshold for grand larceny. We hold the fact finder could conclude Tanner acted under a single intent and so affirm his conviction.

II. BACKGROUND

On February 4, 2008, at 11:09 a.m., two security employees of Nordstrom's Department Store in Arlington, Michael McNeil and Juan Ponton, saw Tanner in the boy's department on the third floor of the store. McNeil and Ponton observed Tanner through a closed-circuit television system, but McNeil soon went to watch Tanner in person. According to McNeil, Tanner paced along a wall, with his coat draped over his left shoulder. Against the wall were boys' suits and blazers, which were for sale. McNeil saw that there were ten blazers against the wall. Tanner was picking up blazers, observing them, and placing them back on the rack. After examining one blazer, Tanner leaned over as if to return the blazer to the rack. McNeil saw Tanner moving something under his coat before walking toward the bathroom in the store's café section. After Tanner moved away from the rack, McNeil counted only nine blazers. Soon after Tanner left the bathroom, he took the escalator down to the second floor of the store.

At approximately 11:25 a.m., Tanner exited Nordstrom's through the second floor doorway that connects the store to the other stores in a large shopping mall. Both McNeil and Ponton stated that Tanner did not stop to pay for the blazer before leaving. Tanner returned twenty to thirty minutes after he left, then carrying a Macy's shopping bag.

This time Tanner went to the men's department on the second floor and was seen near a rack of men's pants. According to McNeil, Tanner picked up two pairs of pants, each of them attached to hangers, removed the hanger from one pair, and placed both over one of his arms, so that the two pairs resembled a single pair of pants on a single hanger. A salesperson escorted Tanner into a fitting room, where Tanner closed the door and then reopened it, apparently requesting that the salesperson replace one of the pairs of pants with a similar pair of a slightly different size. The salesperson walked back to the rack of pants and replaced the pair Tanner had given him with a new pair. After Tanner examined the new pair, he gave it back to the salesperson, who again replaced the pants on the rack and retrieved still another pair to give to Tanner inside the fitting room. After the second exchange, Tanner walked outside of the fitting room, wearing a pair of pants, and examined himself in a mirror. He then returned to the fitting room and came out again, handing a single pair of pants back to the salesperson. While Tanner was speaking to the salesperson, McNeil went inside the fitting room and confirmed that Tanner had not left any of the pairs of pants inside.

Tanner again walked out of the store without attempting to make a purchase, but this time McNeil intercepted him and found the missing pants rolled up in the sleeve of Tanner's coat and the boy's blazer inside the Macy's shopping bag that Tanner carried. McNeil testified that price tags on the items indicated a value of $135 for the pants and $115 for the blazer.

Tanner was indicted for grand larceny. He was tried before a jury on July 29, 2008.

After the Commonwealth rested, Tanner made a motion to strike, arguing that there was insufficient evidence for a grand larceny conviction; instead the evidence proved two separate acts of petit larceny. The court denied the motion, stating "a reasonable fact finder could conclude that there was a single larcenous intent." Tanner renewed this motion at the close of all the evidence, which the court again denied. The charging instruction (Instruction No. 4) informed the jury that they could convict only if the Commonwealth proved the following four elements beyond a reasonable doubt:

1) That the defendant took clothing belonging to Nordstrom and carried it away; and

2) That the taking was against the will and without the consent of the owner; and

3) That the taking was with the intent to steal; and

4) That the property taken was worth $200 or more.

Tanner also requested, and the Court granted, Instruction D, explaining the legal elements of the common law single larceny doctrine. Instruction D reads:

The Commonwealth must also prove beyond a reasonable doubt the following elements:

The several acts were done:

5) pursuant to a single impulse; and

6) in execution of a general fraudulent scheme.

Defense counsel argued to the jury that the Commonwealth failed to prove beyond a reasonable doubt elements five and six. The jury convicted Tanner of grand larceny, and this appeal followed.

III. ANALYSIS

On appeal, Tanner's sole argument is that the Commonwealth failed to prove he acted under a single intent when committing the two thefts and that without such proof the Commonwealth could not use the single larceny doctrine to combine the value of the thefts into an amount exceeding the threshold for grand larceny.¹ For the following reasons, we affirm.

Larceny is a common law crime in Virginia. Britt v. Commonwealth, 276 Va. 569, 574, 667 S.E.2d 763, 765 (2008). It consists of "the wrongful or fraudulent taking of another's property without his permission and with the intent to deprive the owner of that property permanently." Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001). "Under Code § 18.2-95, grand larceny includes the taking, not from the person of another, of goods having a value of $200 or more." Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998). Proof that the goods stolen had a value meeting the statutory requirement represents an essential element of grand larceny that the prosecution must prove beyond a reasonable doubt. Walls v. Commonwealth, 248 Va. 480, 481, 450 S.E.2d 363, 364 (1994). In this case, the prosecution argued the items Tanner stole exceeded the $200 threshold by virtue of aggregation under the single larceny doctrine.

The single larceny doctrine represents part of the common law concept of larceny. Alexander v. Commonwealth, 90 Va. 809, 810, 20 S.E. 782, 783 (1894). The law in this regard has been stated as follows:

Broadly stated, the general rule is that the taking of property at different times, though from the same place and the same owner, will constitute separate offenses; and no aggregation of successive petit larcenies, not constituting parts of a continuous transaction, but each complete and distinct itself, can be combined in one prosecution so as to make a case of grand larceny.

But 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) (citations omitted); see also Peter G. Guthrie, Annotation, Series of Takings Over a Period of Time as Involving Single or Separate Larcenies, 53 A.L.R.3d 398 (1973) (discussing thoroughly the single larceny doctrine).

In order for the single larceny doctrine to apply, the items stolen must be taken from the same general place, meaning "the `same table,' or same room, or `same shop,' as Lord Hale first observed." Richardson v. Commonwealth, 25 Va. App. 491, 497, 489 S.E.2d 697, 700 (1997) (en banc). The various stolen items may belong to different persons. Id. On the other hand, "a series of thefts committed in rapid succession pursuant to a general scheme to steal from distinct locations, such as different shops, stores, or buildings, will constitute separate offenses." Id. Thus, "[a] single, general scheme to commit a series of larcenies at different times and locations does not transform multiple separate and discrete crimes into a single offense." Id. at 498, 489 S.E.2d at 700-01.

Determining whether particular larcenies from such a single location were committed "pursuant to a single impulse and in execution of a general fraudulent scheme" so as to qualify as a single larceny involves consideration of a number of factors. A court should review "(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." Acey v. Commonwealth, 29 Va. App. 240, 247, 511 S.E.2d 429, 432 (1999). The most important factor is the intent of the defendant. Richardson, 25 Va. App. at 497, 489 S.E.2d at 700. In this context, an intent to steal means the same as an impulse to steal.² See id. at 498, 489 S.E.2d at 701 (referring to "intents or impulses to steal"); see also Millard v. Commonwealth, 34 Va. App. 202, 207, 539 S.E.2d 84, 86 (2000) (noting that "multiple unlawful takings constitute separate larcenies if the thief acted upon a separate intent or impulse for each theft"). To a significant degree, the other four Acey ...