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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
COMMONWEALTH OF VIRGINIA
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
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.
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
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
gas station on Ironbridge Road where Cherry stopped at one of
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,
[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.
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
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
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
The officer "responded to the residence [to] which the
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
. . . didn’t have the money in the pair [she] had on." She
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
was there and failed to return to the station. She explained her
failure to promptly return to the station, recounting her
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
she stopped at the Lucky’s store on Genito Road because she
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
locating him after "about 45 minutes" at another job
whereupon she drove with him to her residence, where she
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
was not thinking clearly.
At the conclusion of Cherry’s testimony, the Commonwealth
introduced evidence of two prior convictions to sustain the
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
[Cherry] returning within an hour" and that "at the
the hour it became non-consensual." The trial judge also
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
to pay for the gas, but concluded, ultimately, that Cherry’s
explanation for her failure to return had not "rung true to
Court," and evidenced the fraudulent intent with which she
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
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.
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.
"In Virginia, larceny is a common law crime." Bryant
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
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
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,
107, 113, 406 S.E.2d 39, 42 (1991). Viewed in the light most
favorable to the Commonwealth, the evidence proved Cherry went
the gasoline station without money, pumped the gas into her car,
and then explained to the clerk she did not have money to pay
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
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
the gas, noting that Cherry’s explanations had not "rung
the Court." The court thus concluded that Cherry pumped the
without the present intent to pay for the gasoline,
notwithstanding Cherry’s agreement to return within the hour to
so. See Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500
S.E.2d 233, 235 (1998) (stating that "the fact finder is
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
as she agreed, we find the evidence was sufficient to justify
trial judge’s conclusion that Cherry had no intent to pay for
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
that appellant was guilty of petit larceny, third offense.
Accordingly, we affirm the conviction.
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."
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
reasonable doubt of the defendant’s intent to steal, which must
accompany his taking of the property." Tarpley, 261 Va. at
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
support this finding. The undisputed evidence establishes that
Cherry went to the gas pump, pushed the "cash" button,
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
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
number. Cherry was aware the clerk wrote down her license plate
number. This evidence is insufficient to prove Cherry went to
store and obtained the gas with the intent to permanently
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
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
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
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.
Code ? 17.1-413, this opinion is not
designated for publication.