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SAGASTUME v. COMMONWEALTH OF VA


SAGASTUME v.
COMMONWEALTH OF VA


JUNE 2, 1998
Record No. 0802-97-4

JOSE A. SAGASTUME

v.

COMMONWEALTH OF VIRGINIA

OPINION BY CHIEF JUDGE JOHANNA L. FITZPATRICK
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY

James H. Chamblin, Judge
Present: Chief Judge Fitzpatrick, Judges Willis and Elder
Argued at Alexandria, Virginia

Paul A. Maslakowski, Assistant Public Defender, for appellant.

Marla Graff Decker, Assistant Attorney General (Mark L.
Earley, Attorney General, on brief), for appellee.


Jose A. Sagastume (appellant) was convicted in a jury trial of
statutory burglary, attempted rape, abduction with intent to
defile, and two counts of grand larceny. On appeal, he contends
the trial court erred in denying his motion to strike one of the
grand larceny convictions as required by the "single larceny
rule." Finding no error, we affirm.

I.

"On appeal, we view the evidence in the light most
favorable to the Commonwealth and grant to it all reasonable
inferences therefrom." Barlow v. Commonwealth, 26 Va.
App. 421, 428-29, 494 S.E.2d 901, 904 (1998). "The jury’s
verdict will not be set aside unless it appears to be plainly
wrong or without evidence to support it." Watkins v.
Commonwealth
, 26 Va. App. 335, 348, 494 S.E.2d 859, 866
(1998).

In 1994, appellant worked odd jobs for Margareta and Thomas
Blitz on their sixty-acre farm. After he left the Blitz’s
employment, appellant was arrested and incarcerated. On May 4,
1996, Mrs. Blitz noticed food and money missing from her home. On
May 6, 1996, Mrs. Blitz learned that appellant had escaped from
the Loudoun County jail. She called the police to report the
thefts, but a search of the area was fruitless.

That afternoon, Mrs. Blitz was working in her garden when she
was struck on the head from behind. She awoke shortly thereafter
to find someone blindfolding her. The attacker took her at
knifepoint to a wooded area about six hundred feet away. There,
he tied her hands around a tree, undressed her, and attempted to
have sexual intercourse with her. After redressing her, he tied
her feet to another tree and began asking her questions about her
husband and a key. The attacker took Mrs. Blitz’s Seiko watch and
a key to the carriage house from her pocket. He told Mrs. Blitz
that he was going to the house to wait for her husband to return
home.

After about twenty to thirty minutes, Mrs. Blitz freed herself
and phoned police from a tenant house on the property. Officer
David Domin arrived in twelve to fifteen minutes and observed
Mrs. Blitz’s blue Volvo pulling out of the driveway with the
trunk open. The Volvo driver attempted to evade the approaching
police cars by driving over the grass. When the car hit a tree
and stopped, a man Domin identified as appellant jumped out and
fled. The police pursued him on foot and took him into custody.

The police inventory of the Volvo contents revealed two rifles
in a gun case, a kitchen style knife, a pair of blue trousers, a
lady’s style hat, cloth strips torn from a t-shirt, and a pair of
tennis shoes. In the pocket of the trousers, the police found a
Casio watch, four bottles of fingernail polish, women’s makeup, a
gold bracelet valued at $4,700, a pair of earrings, a necklace
with a pendant, two Seiko watches, the key to the carriage house,
a New York City subway map, a pair of sunglasses, and a pair of
rubber gloves. In the trunk of the Volvo, the police found two
backpacks which contained men’s and women’s clothing, a purse,
and shoes.

Appellant was indicted for, inter alia, grand
larceny of Mrs. Blitz’s Volvo, grand larceny of firearms
belonging to the Blitzes, and grand larceny of their personal
property. At the conclusion of the Commonwealth’s
case?in?chief, the trial court granted appellant’s motion to
strike the grand larceny charge distinguishing the firearms from
the other personal property, but denied the motion with respect
to the larceny of the Volvo.

The trial court ruled that separate larcenies may be charged
"only if the evidence showed that the offenses were separate
and distinct and not committed pursuant to one intention, one
impulse or one plan."[1]
The court reasoned that "what occurred inside of the house
. . . [was] all one offense," and the personal
property "might have been items . . . that he
could sell to raise money. With the automobile, however
. . . the jury could conclude . . . that he
took it because he wanted to use it for transportation." The
trial court ruled as follows:

[A]s to the items inside of the house that are alleged to have
been taken, the evidence would be as only one continuous larceny
event, but as to the Volvo, I cannot include that. I think the
jury has sufficient evidence upon which to find that the intent
was separate and distinct.

The jury convicted appellant on both grand larceny charges,
and the trial court sentenced him to ten years imprisonment for
grand larceny of the Volvo and seven years for grand larceny of
the personal property.

II.

Appellant contends the evidence supports only one conviction
of larceny. We disagree.

It is a long established and fundamental principle that:

where several articles of property are stolen at the same time
and place, though the stolen goods belong to different persons,
the stealing is regarded as one transaction, and, therefore, as
one offense, which may be charged in a single count.

Alexander v. Commonwealth, 90 Va. 809, 810, 20 S.E.
782, 783 (1894). "The concept is commonly referred to as the
‘single larceny doctrine.’" Richardson v. Commonwealth,
25 Va. App. 491, 495, 489 S.E.2d 697, 699 (1997) (en banc).

Broadly stated, the general rule is that the taking of
property at different times, though from the same place and the
same owner, will constitute separate offenses; and no aggregation
of successive petit larcenies, not constituting parts of a
continuous transaction, but each complete and distinct in itself,
can be combined in one prosecution so as to make a case of grand
larceny.

But a series of larcenous acts, regardless of the amount and
value of the separate parcels or articles taken, and regardless
of the time occupied in the performance, may and will constitute,
in contemplation of law, a single larceny, provided the several
acts are done pursuant to a single impulse and in
execution of a general fraudulent scheme.

West v. Commonwealth, 125 Va. 747, 754, 99 S.E. 654,
656 (1919) (emphasis added). See Jha v. Commonwealth,
18 Va. App. 349, 354, 444 S.E.2d 258, 261 (1994) (aggregating the
value of multiple calls made to "900" numbers by
illegal use of a telephone line access device).

"[A]pplication of the doctrine becomes problematic when
applied to the infinite variety of circumstances that can
arise." Richardson, 25 Va. App. at 495, 489 S.E.2d at
699.

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.

In Richardson, the theft of two purses from a nurses’
station "occurred at approximately the same time, from the
same room or location, and pursuant to a single impulse or design
to steal items from that nurses’ station." Id. at
498, 489 S.E.2d at 701. This Court held "[t]he only
conclusion that a fact finder could reasonably draw from this
record is that Richardson went to the tenth floor nurses’ station
intending to steal purses or other items of value and that he
stole two purses during one continuous act or transaction." Id.
at 499, 489 S.E.2d at 701.

The full Court in Richardson declined to reconsider the
panel’s unanimous holding that two thefts "from separate
buildings in the same complex were separate offenses, even though
they were in furtherance of the defendant’s general scheme to
steal." Richardson, 25 Va. App. at 494 n.1, 489
S.E.2d at 699 n.1. Consequently, thefts of purses and backpacks
from different buildings within the Medical College of Virginia
Hospital Complex were considered separate larcenies. See Richardson
v. Commonwealth
, 23 Va. App. 668, 479 S.E.2d 87 (1996), aff’d
in part
, 25 Va. App. 491, 489 S.E.2d 697 (1997).

In the instant case, the record indicated that the various
larcenies of the watches, jewelry, and other personal property
occurred inside the house, and the evidence supported the
inference that the purpose of the thefts was to sell the items,
or possibly in the case of the rifles, to use them for
protection. The jury could also have inferred that the larceny of
the Volvo occurred at a later time, outside the home, and the
intent evinced by this theft was to steal the car to transport
appellant away from the scene of his crimes. Consequently, the
jury could reasonably have concluded that, despite any
"general scheme" on the part of appellant, "each
[theft] was a separate and discrete offense and was not part of
the same impulse or continuous larcenous act at the same
location." Richardson, 25 Va. App. at 498, 489 S.E.2d
at 701. The jury’s verdict was supported by the evidence and was
not plainly wrong. For the foregoing reasons, the convictions are
affirmed.

Affirmed.

 

 

 

 

FOOTNOTES:

[1] The trial court recessed to
review the panel decision in Richardson v. Commonwealth,
23 Va. App. 668, 479 S.E.2d 87 (1996). At the time of trial on
February 25, 1997, we had not yet granted en banc
review of that decision. However, the trial court’s statement of
the applicable law is consistent with this Court’s en banc
holding in Richardson. See 25 Va. App. 491, 489
S.E.2d 697 (1997) (en banc).

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