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ATKINS v. COMMONWEALTH OF VA


ATKINS v. COMMONWEALTH
OF VA

(unpublished)


JUNE 9, 1998
Record No. 1322-97-2

HERMAN R. ATKINS, JR.

v.

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION[1]
BY JUDGE MARVIN F. COLE
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY

Robert G. O’Hara, Jr., Judge
Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia

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

Sect. 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
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, 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 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 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.

Affirmed.

 

 

 

 

FOOTNOTES:

[1] Pursuant to Code Sect. 17?116.010 this
opinion is not designated for publication.

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