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CHERRY v. COMMONWEALTH




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CHERRY

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Coleman

Argued at Richmond, Virginia

Record No. 3365-01-2

MARIA JANINE CHERRY

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE ROSEMARIE ANNUNZIATA

SEPTEMBER 30, 2003

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

Cleo E. Powell, Judge

William B. Bray (Perry & Bray, on brief), for

appellant.

Donald E. Jeffrey, III, Assistant Attorney

General (Jerry W. Kilgore, Attorney General,

on brief), for appellee.

The sole issue on appeal is whether the evidence was

sufficient to prove larceny. We affirm the conviction.

I.

The grand jury indicted Maria Janine Cherry for larceny as a

third or subsequent such offense. See Code ?? 18.2-96 and

18.2-104. When the sufficiency of the evidence is challenged on

appeal, we "’review the evidence in the light most
favorable to

the Commonwealth, granting to it all reasonable inferences

fairly deducible therefrom.’" Ortega v. Commonwealth, 31

Va. App. 779, 786, 525 S.E.2d 623, 627 (2000) (quoting Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

(additional citation omitted)). So viewed, the evidence shows

that Sheila Bishop was working before noon at the Quicky’s
Chevron

gas station on Ironbridge Road where Cherry stopped at one of
the

gasoline pumps. When the computer indicated a cash purchase of

gas, Bishop authorized the transaction by activating the pump.

Cherry pumped four dollars worth of gas, went to Bishop’s

cash register in the building, began "feeling her pockets,
and

[said] I don’t have no money." Bishop testified that Cherry

offered to leave her driver’s license until she returned to pay

but that she declined to take Cherry’s driver’s license.
Instead,

Bishop indicated the automobile’s license plate number was

sufficient, and she went outside and recorded Cherry’s license

plate number. Cherry said she would be back within an hour to
pay

for the gas. When Bishop gave the information to her employer,

Bishop’s employer told her that if Cherry did not return with

payment in an hour, they would report the matter to the police.

In the three and one-half hour period during which Bishop
worked,

Cherry did not return to the station to pay for the gasoline.

Police Officer Talley received a report from his dispatcher

concerning a "gas drive off" at 11:30 a.m. at the
Chevron station.

The officer "responded to the residence [to] which the
vehicle was

registered a couple of hours later." After Cherry told the

officer she had money to pay for the gas, he arrested her.

Cherry testified at trial and admitted she had a prior felony

conviction and three misdemeanor convictions involving lying,

cheating or stealing. She explained that she believed she had

money in her pants pocket when she went into the station to pay

for the gas but that she "had changed out of [those] shorts
and

. . . didn’t have the money in the pair [she] had on." She
said

that she planned to return to the store to pay for the gasoline,

but she did not return directly home to retrieve the cash she
said

was there and failed to return to the station. She explained her

failure to promptly return to the station, recounting her
efforts

to look for her boyfriend, who was working at a location between

the Brandermill and Woodlake areas, in order to get money from

him. Cherry did not find him at his job site, and she continued

to "dr[i]ve around looking for him." While continuing
the search,

she stopped at the Lucky’s store on Genito Road because she
needed

more gas. She said that she thought the Lucky’s store would cash

a twenty-five dollar money order that she had with her, although

she made no attempt to determine whether the station would do so

before pumping sixteen dollars of gas. Lucky’s refused to cash

the money order. The clerk took Cherry’s driver’s license and

permitted her to leave on the promise that she would return with

the cash. Cherry did not return home to retrieve the cash she

said was there, but rather continued her search for her
boyfriend,

locating him after "about 45 minutes" at another job
site,

whereupon she drove with him to her residence, where she
intended

to retrieve money from other clothing and to ask her roommate to

cash the money order. She was at the residence for about five

minutes when Officer Talley arrived and arrested her,

approximately three and one-half hours after she had pumped the

gasoline at the Chevron station and left without paying for it.

She made no effort to contact the Chevron station during this

period of time. Cherry testified that she intended to return to

Quicky’s Chevron to pay for the gas but the officer’s arrival at

her residence prevented her from doing so. When asked by the

court to explain why she had not returned to the Chevron station

within an hour, she explained she was under "a lot of
stress" and

was not thinking clearly.

At the conclusion of Cherry’s testimony, the Commonwealth

introduced evidence of two prior convictions to sustain the
felony

charge.

At the conclusion of the Commonwealth’s evidence, the trial

judge denied Cherry’s motion to strike the evidence for

insufficiency. She ruled that the "consent was conditioned
upon

[Cherry] returning within an hour" and that "at the
expiration of

the hour it became non-consensual." The trial judge also
denied

the motion to strike the evidence at the conclusion of the

defendant’s case. In ruling on the motion to strike, the trial

judge considered the argument that Cherry had left the station

with permission, conditioned on her agreement to return in an
hour

to pay for the gas, but concluded, ultimately, that Cherry’s

explanation for her failure to return had not "rung true to
the

Court," and evidenced the fraudulent intent with which she
took

the gasoline without payment. After further argument at the

sentencing hearing, the trial judge again addressed the

inconsistencies between Cherry’s conduct and her professed
intent

and added the following in support of her finding that the

evidence was sufficient to sustain Cherry’s conviction:

[B]ased on the totality of the facts of this

case, . . . I found that her intent at the

time was not to pay them for their gas

. . . . We did discuss the conditional

provision of the gas station saying, okay,

you don’t have the money, come back in an

hour, but her follow-through . . . proved

her intent was not to do that.

(Emphasis added).

Cherry was convicted of petit larceny and sentenced to

serve five years, with four years and six months suspended.

Cherry appeals the conviction claiming the evidence is

insufficient to prove her guilt beyond a reasonable doubt. We

find no error and affirm.

II.

"In Virginia, larceny is a common law crime." Bryant
v.

Commonwealth, 248 Va. 179, 183, 445 S.E.2d 667, 670 (1994).

Larceny has often been defined 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. The animus furandi must

accompany the taking, but the wrongful

taking of the property in itself imports the

animus furandi."

Skeeter v. Commonwealth, 217 Va. 722, 725, 232 S.E.2d 756, 758

(1977) (citation omitted). Cherry contends the evidence was

insufficient to prove she intended to permanently deprive the

owner of the gas and to prove a trespassory taking.

The trial judge found, however, that Cherry had no intent to

pay for the gas when she obtained it at the pump. This was a

finding based upon the judge’s assessment of Cherry’s
credibility.

Applying the usual standard on appeal, "the credibility of

witnesses and the weight to be accorded their testimony are

questions for the fact finder." Saunders v. Commonwealth,
242 Va.

107, 113, 406 S.E.2d 39, 42 (1991). Viewed in the light most

favorable to the Commonwealth, the evidence proved Cherry went
to

the gasoline station without money, pumped the gas into her car,

and then explained to the clerk she did not have money to pay
for

the gas. Although Cherry promised to return in one hour to pay

for the gasoline, she failed to do so and failed to go directly
to

her residence where she said she had left her cash. The trial

judge was not required to believe her explanations for her

conduct. Indeed, the trial judge found that Cherry’s conduct

belied her stated intent to return to the station with payment
for

the gas, noting that Cherry’s explanations had not "rung
true to

the Court." The court thus concluded that Cherry pumped the
gas

without the present intent to pay for the gasoline,

notwithstanding Cherry’s agreement to return within the hour to
do

so. See Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500

S.E.2d 233, 235 (1998) (stating that "the fact finder is
entitled

to disbelieve the self-serving testimony of the accused and to

conclude that the accused is lying to conceal his guilt").

Based on the credibility determinations made by the trial court

together with Cherry’s failure to return with payment for the
gas

as she agreed, we find the evidence was sufficient to justify
the

trial judge’s conclusion that Cherry had no intent to pay for
the

gas she pumped and, thus, committed a trespassory taking.

The Commonwealth’s evidence was competent, was not inherently

incredible, and was sufficient to prove beyond a reasonable
doubt

that appellant was guilty of petit larceny, third offense.

Accordingly, we affirm the conviction.

Affirmed.

Benton, J., dissenting.

"Larceny, a common law crime, is 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). "[U]nder the common law definition of that crime .
. .

there [must be] proof of a trespassory taking."
Commonwealth v.

Bruhn, 264 Va. 597, 601, 570 S.E.2d 866, 868 (2002) (citing Maye

v. Commonwealth, 213 Va. 48, 49, 189 S.E.2d 350, 351 (1972)).

Moreover, "[a] conviction of larceny requires proof beyond
a

reasonable doubt of the defendant’s intent to steal, which must

accompany his taking of the property." Tarpley, 261 Va. at
256,

542 S.E.2d at 764.

The trial judge found that Cherry’s "intent at the time was

not to pay [Quicky's Chevron] for the gas and [the judge said]

that’s why I convicted her of larceny." The evidence does
not

support this finding. The undisputed evidence establishes that

Cherry went to the gas pump, pushed the "cash" button,
and

obtained the gas. She then went into the store, approached the

clerk, and reached into her pocket for money. When Cherry

informed the clerk she had left her money at home, she offered
the

clerk her driver’s license to hold as security for her return.

The clerk declined to take the driver’s license, which provided

the means of identifying Cherry, but noted Cherry’s license
plate

number. Cherry was aware the clerk wrote down her license plate

number. This evidence is insufficient to prove Cherry went to
the

store and obtained the gas with the intent to permanently
deprive

the owner of the gas. Moreover, Cherry’s conduct is simply

inconsistent with a finding that she intended to steal the gas.

The trial judge’s finding is based primarily on the view that

Cherry did not return within an hour to pay for the gas. The

store clerk explained in the following testimony the
significance

of the one hour time span:

And during my shift, there was a couple of

people at the time that had gotten gas, and

I had noticed a white [car], which the lady

had came in and said that she didn’t have no

money. And so I took her licensed plates,

and I gave the information to my boss. And

she said she’d be back in an hour to pay for

the gas. And my boss says, well, if she’s

not back in an hour, then we have to turn

her in as a drive off.

Although the trial judge was entitled to disbelieve

Cherry’s account of the events that consumed her time after she

left the Quicky Chevron and to conclude as she did that Cherry

lacked "follow-through," this evidence was
insufficient to prove

beyond a reasonable doubt Cherry intended to steal the gas when

she put it in her car. "[T]he trial [judge's] rejection of
that

testimony does not provide a factual basis for establishing

beyond a reasonable doubt that [Cherry] intended to deprive

[Quicky Chevron] of [gas] permanently." Tarpley, 261 Va. at

256-57, 542 S.E.2d at 764. The evidence proved Cherry did not

drive away after pumping the gas. She went inside to the

cashier, evidencing intent to pay. Cherry’s offer to leave her

license was inconsistent with intent to commit larceny.

Furthermore, it was Cherry who made the offer to return within

the hour, after she discovered she had no money. This was not a

condition placed upon her by the owner for the obtaining of the

gas. When, as here, the evidence viewed in the light most

favorable to the Commonwealth establishes only a suspicion or a

probability of guilt, that evidence is insufficient as a matter

of law to support a larceny conviction. Id. at 257, 542 S.E.2d

at 764.

In short, the evidence failed to prove beyond a reasonable

doubt Cherry intended to steal the gas when she pumped it and

clearly failed to prove a trespassory taking. Therefore, I

would reverse the conviction.

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not

designated for publication.


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