Herman R. Atkins, Jr. v. Commonwealth ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
HERMAN R. ATKINS, JR.
MEMORANDUM OPINION * BY
v. Record No. 1322-97-2 JUDGE MARVIN F. COLE
JUNE 9, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Robert G. O'Hara, Jr., Judge
Andrew E. Weaver (Traylor, Morris & Wornom,
on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
The appellant, Herman R. Atkins, Jr., was convicted by a
jury of two counts of grand larceny in violation of Code
§ 18.2-95. On appeal, he contends that (1) the taking of the
firearm was part of the same event and impulse as the taking of
the truck, making him guilty of only one larceny; and (2) the
trial court erred in refusing to instruct the jury on the single
larceny doctrine. We affirm the convictions.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
So viewed, on the evening of November 9, 1996, Charles Clay
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
parked his 1994 Chevy truck in his driveway in Greensville
County. He left his .357 handgun lying on top of a blanket on
the front passenger seat. The truck was unlocked, and Clay left
the key in the ignition. Between 10:00 p.m. and 10:30 p.m., Clay
heard the truck start and leave the driveway. He immediately
telephoned the police and reported the vehicle as stolen.
At trial, appellant testified that on November 9, 1996, he
had been drinking and smoking crack cocaine. He went into Clay's
yard, found the key in the ignition and drove the truck to
Lawrenceville. He testified that he did not intend to steal the
truck but to use the truck to get to Lawrenceville in order to
get more cocaine. He abandoned the truck in a driveway on Route
46.
Appellant testified that he did not see the gun until he
parked the truck. He took the gun and put it "over on Grove
Avenue." His intent was to "save it for another day to sell it
for crack."
Appellant contends that the taking of the truck and the
taking of the gun were part of one larcenous act and were the
result of a single impulse. On that ground he contends that the
charges of larceny of the gun and larceny of the truck should
have been merged into a single count of grand larceny, or the
larceny of the gun charge should have been dismissed as barred
under the single larceny doctrine. The Commonwealth argued that,
since appellant's intent relating to each offense was different,
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each theft was a separate and distinct offense and not a part of
the same impulse. We agree with the Commonwealth.
In Richardson v. Commonwealth, 25 Va. App. 491, 489 S.E.2d
697 (1997) (en banc), we stated:
In order for the single larceny doctrine to
apply, the items stolen may, but do not have
to, be part of the same bundle or parcel; it
is sufficient if they be at the same location
- that is on the "same table," or same room
or "same shop," as Lord Hale first observed.
Alexander [v. Commonwealth], 90 Va. [809] at
810, 20 S.E. [782] at 783 [(1894)]. When the
evidence supports a finding that the thefts
were part of the same larcenous impulse or
scheme and were part of a continuous act, a
single larceny has occurred. The primary
factor to be considered is the intent of the
thief and the question to be asked is whether
the thefts, although occurring successively
within a brief time frame, were part of one
impulse. The circumstances to be considered
that will bear upon the issue are the
location of the items stolen, the lapse of
time between their taking, the general and
specific intent of the thief, the number of
owners, and whether intervening events
occurred between the takings. . . .
Id. at 497, 489 S.E.2d at 700. Multiple unlawful takings
constitute separate larcenies if the thief acted upon a separate
intent or impulse for each theft. See id.
Appellant acknowledged that stealing the truck was wrong.
He testified that he did not intend to permanently take the
truck, but only to use the truck to drive to Lawrenceville to
purchase cocaine. He admitted that he did not observe the gun in
the truck until he arrived in Lawrenceville and was about to get
out of the truck. At that point, appellant took the gun, and hid
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it in the woods, intending to sell it at a later time to purchase
crack cocaine.
The evidence was sufficient to prove that appellant's theft
of the truck and the later theft of the gun were separate and
distinct offenses and were not committed pursuant to one scheme,
one intent, one impulse or one plan. The evidence constitutes
two separate larcenies. We hold that the trial judge did not err
by refusing to dismiss one of the charges or by refusing to merge
the charges. The evidence is insufficient to support the single
larceny doctrine.
The appellant also contends that whether the single larceny
doctrine applied was a question of fact for the jury to decide
and the trial judge committed reversible error when he refused to
grant an instruction on the single larceny theory. The
Commonwealth responds that the evidence is insufficient to
support the granting of the instruction requested.
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,
503, 290 S.E.2d 856, 858 (1982)). "A defendant is entitled to
have the jury instructed only on those theories of the case that
are supported by the evidence." Frye v. Commonwealth, 231 Va.
370, 388, 345 S.E.2d 267, 280 (1986). More than a scintilla of
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evidence must be present to support an instruction. Id. When
determining whether sufficient evidence warranted a particular
instruction, we view the evidence in the light most favorable to
the party offering the instruction. See Foster v. Commonwealth,
13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991).
Appellant entered Clay's driveway and drove Clay's truck
away without permission, according to his own testimony,
intending to use the truck to drive to Lawrenceville to purchase
cocaine. He admitted he did not see the gun or notice that it
was in the truck until he had arrived in Lawrenceville, some
distance away, and parked the truck in a driveway of another
person. There he saw the gun, took possession of it and hid it,
intending to sell it at a later time to purchase more cocaine.
Appellant never had a single plan or impulse to steal both the
truck and the gun. He had a separate impulse to steal the truck.
After the passage of considerable time and distance, and after
stopping the truck to abandon it, he discovered the gun. At this
time, he formed the intent or impulse to steal the gun. This
constituted a separate and distinct grand larceny. Since the
evidence proved as a matter of law that appellant committed two
separate larcenies, we find that the trial judge did not err in
refusing to grant an instruction based upon the single larceny
doctrine.
For the reasons stated, we affirm both convictions of grand
larceny.
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Affirmed.
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