Welch v. Com., 1222-91-2

• Decision Date: 22 December 1992
• Docket Number: No. 1222-91-2,1222-91-2
• Citation: 425 S.E.2d 101,15 Va.App. 518
• Court: Virginia Court of Appeals
• Parties: Tyronne Lynn WELCH, a/k/a Jeffrey L. Allen v. COMMONWEALTH of Virginia. Record

Page 101

425 S.E.2d 101

15 Va.App. 518

Tyronne Lynn WELCH, a/k/a Jeffrey L. Allen v. COMMONWEALTH of Virginia.

Record No. 1222-91-2.

Court of Appeals of Virginia.

Dec. 22, 1992.

William T. Linka (Boatwright & Linka, on brief), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, COLEMAN and FITZPATRICK, JJ.

FITZPATRICK, Judge.

The appellant, Tyronne Lynn Welch, was indicted and convicted in a jury trial in the Circuit Court of Henrico County of grand larceny, possession of cocaine, and forgery of a public document. He appeals only the grand larceny conviction. Appellant argues that the evidence was insufficient to sustain the grand larceny conviction pursuant to Code § 18.2-95, because the Commonwealth failed to prove that he possessed the merchandise outside the boundaries of the owner's store. Absent such evidence, he contends that the proof failed to establish that he intended to steal the items or that he asported the merchandise to the detriment of the owner. We disagree and affirm his conviction.

I. THE INCIDENT

On March 13, 1991, the appellant was observed inside the Lowe's Department Store walking toward the appliance section where television sets are displayed. Shortly thereafter, the store manager was alerted by a store employee to respond to the lawn and garden section of the store, which is located in a fenced area outside the store's building. This area does not have any cash registers, and there is a gate in the fence that leads to the public parking lot of the premises. When the manager arrived, he saw the appellant "pushing a grocery cart with two televisions in it" toward the back of the premises in the lawn and garden section. The manager first saw the appellant approximately thirty feet from the exit in the lawn and garden department, heading "towards the gate."

The manager testified that when he and the appellant saw each other the appellant "backed away from the cart as [he] walked towards him ... [He] asked him if he had a receipt and if the [televisions] were his, and he said no, that they weren't his, and that he was looking for a place to go to pay for them." Upon request, the appellant agreed to go back into the store with the manager, but as the two men were walking toward the store, the appellant fled the premises. The manager pursued him across the store's parking lot, a street and into another parking lot. At that point, the appellant stopped, turned around, reached into his back pocket, and warned the manager that he had a gun. He stated, "don't make me shoot you." The appellant then resumed running away, whereupon the manager observed that the appellant was unarmed. The manager pursued and ultimately apprehended him.

The lawn and garden area, where the appellant was observed with the televisions and where the manager initially challenged him, was open to the public to select items for purchase. However, the area is located outside the confines of the store building, and customers making selections of merchandise in that area must go back into the store to purchase the selected items. The store cashier testified that she saw the appellant go to the appliance section where televisions were displayed, and that she did not register any sales of RCA color televisions that evening. In addition, the record reflects that after the appellant was taken into police custody he was searched and found not to be in possession of any currency or retail charge cards. ¹ At the time of his arrest, the appellant identified himself to the police as Jeffrey Lavear Allen, and provided the police with a fictitious date of birth and social security number. ²

At trial, the appellant moved to strike the grand larceny charge. The trial court denied the motion, and thereafter, the appellant chose not to testify or put on any evidence. The jury returned a verdict of guilty of the crime of grand larceny and fixed the appellant's punishment at two years in the State Penitentiary.

II. LARCENY

The crime of larceny, although regulated by statute under Code § 18.2-95, is a common law crime and is defined as follows:

[T]he 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. The animus furandi must accompany the taking, but the wrongful taking of property in itself imports the animus furandi.

Dunlavey v. Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945); see Jones v. Commonwealth, 3 Va.App. 295, 300, 349 S.E.2d 414, 418 (1986).

In every larceny there must be an actual taking or severance of the goods from the possession of the owner. To "take" an article means "to lay hold of, seize or grasp it with the hands or otherwise," and to do so with the requisite criminal intent constitutes a felonious taking. Jones, 3 Va.App. at 301, 349 S.E.2d at 418. The crime of larceny is complete when a defendant with the requisite intent to permanently deprive takes possession of property without the consent of the owner and moves that property from the exact location it occupied prior to the defendant's conduct.

III. ASPORTATION

A principal issue raised by the appellant is what constitutes sufficient possession and asportation to sustain a conviction for larceny from a self-service retail store. Bona fide customers of self-service retail establishments may enter and examine items displayed for the limited purpose of making selections for purchase. "Where a store owner invites the public to enter his premises he consents for the entrant to view his merchandise for the limited purpose of purchase, or to otherwise engage in a lawful activity thereon." Jones, 3 Va.App. at 300, 349 S.E.2d at 417. Retailers implicitly grant bona fide customers the privilege to move goods offered for sale, in order for customers to accumulate all the goods desired and to transport them to a designated area for payment.

The mere removal of merchandise from a display shelf to a shopping cart, and the subsequent movement of the shopping cart to other areas of the store, is not larceny unless the evidence otherwise shows that the taking was with the intent to steal. Jones v. State, 55 Ala.App. 274, 276, 314 So.2d 876, 878, writ denied, 294 Ala. 761, 314 So.2d 879 (1975). However, when an individual harbors the requisite intent to steal and permanently deprive the owner of property, acts on such intent by taking possession of the property even for an instant, and moves the targeted property, larceny has been committed. The slightest asportation is sufficient, even though the property may be abandoned immediately. Whalen v. Commonwealth, 90 Va. 544, 549, 19 S.E. 182, 183 (1894); Mason v. Commonwealth, 200 Va. 253, 256, 105 S.E.2d 149, 151 (1958). "Where the property has been feloniously taken, the slightest removal, even if it is only a hair's breadth, with intent to steal the same, is sufficient to constitute the asportation." Jones, 3 Va.App. at 302, 349 S.E.2d at 418 (citing 12A Michie's Jurisprudence, Larceny § 5 (Repl.Vol.1978); Wolverton v. Commonwealth, 75 Va. 909 (1881)). ³

On appeal, when the sufficiency of the evidence is challenged, "we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom." Bright v. Commonwealth, 4 Va.App. 248, 250, 356 S.E.2d 443, 444 (1987) (citing Wright v. Commonwealth, 224 Va. 502, 505, 297 S.E.2d 711, 713 (1982); Evans v. Commonwealth, 215 Va. 609, 612, 212 S.E.2d 268, 271 (1975)). Applying this standard, we find from the undisputed facts in the record that a jury could reasonably have concluded that the appellant actually possessed the televisions from the moment he took them from the display shelf and placed them in the shopping cart, until he abandoned the cart in the lawn and garden area outside the store building. Such possession and movement satisfies the asportation element of larceny, if such conduct was done animo furandi. The evidence here clearly showed such an intent to steal.

Some conflict in the law among various states exists regarding the extent of the possession required to satisfy the asportation element of larceny. However, we will not impose upon Virginia retailers a requirement that they must wait until a suspected thief flees the store with merchandise before they may attempt an apprehension. Where there is evidence that an individual has acted in a manner that is inconsistent with that of a prospective purchaser, and has exercised immediate dominion and control over the property, despite his continued presence within the owner's store, such conduct establishes sufficient possession to satisfy that element of larceny.

Removal of the targeted property from the owner's premises is not required. "One may be said to have taken another's property by a trespass though he has not removed it from the other's premises." Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law § 8.2(i) (2d ed. 1986). All that is required is that a defendant remove "the items from the locations in the store where they were displayed by the owner." Jones, 3 Va.App. at 302, 349 S.E.2d at 418; accord State v. Carswell, 296 N.C. 101, 104, 249 S.E.2d 427, 429 (1978); Hutchinson v. State, 427 P.2d 112, 114 (Okla.Crim.App.1967); State v. White, 118 Ariz. 279, 280, 576 P.2d 138, 139 (Ariz.Ct.App.1978); State v. Houston, 688 S.W.2d 838, 840 (Tenn.Crim.App.1984). But see State v. Richard, 216 Neb. 832, 833, 346 N.W.2d 399, 400 (1984). It is the contemporaneous criminal intent that distinguishes the bona fide customer from the thief.

IV. INTENT

To prove that a defendant is guilty of larceny, the Commonwealth must present evidence that the defendant took the property with the intention to deprive the owner permanently of his possession of the goods. In determining intent, "the factfinder may consider the conduct of the person involved...