COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Huff UNPUBLISHED
Argued at Salem, Virginia
KENNETH JOSEPH GIBSON MEMORANDUM OPINION* BY v. Record No. 1674-12-3 JUDGE GLEN A. HUFF MARCH 4, 2014 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Stacey W. Moreau, Judge
M. Lee Smallwood, II, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Lauren C. Campbell, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Kenneth Joseph Gibson (“appellant”) appeals his convictions of three counts of grand
larceny, in violation of Code § 18.2-95. Following a bench trial in the Circuit Court of the City
of Danville (“trial court”), appellant was sentenced to fifteen years’ incarceration with thirteen
years suspended. On appeal, appellant contends that the trial court erred by convicting him of
three distinct counts of grand larceny when the single larceny doctrine should have been applied,
resulting in only a single conviction of grand larceny. For the following reasons, this Court
affirms the judgment of the trial court.
I. BACKGROUND
On appeal, “‘we consider the evidence and all reasonable inferences flowing from that
evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). This
principle requires us to “discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270
S.E.2d 755, 759 (1980) (emphasis and citation omitted). So viewed, the evidence is as follows.
On July 26, 2011, appellant and Rasheema Bivens (“Bivens”) patronized a fast-food
restaurant where they sat at a table directly behind Tiffany Adkins (“Adkins”). A surveillance
camera recorded Bivens reaching into Adkins’s purse and removing her wallet. Appellant and
Bivens then left the restaurant and went to a Walgreens located across the street, where they
again were captured by a surveillance camera. Accompanied by appellant, Bivens attempted to
use Adkins’s credit card to purchase over five hundred dollars in merchandise, but the credit card
was declined. Brenda Metz (“Metz”) was in line behind appellant and Bivens at the time the
credit card was declined and moved to another register while the matter was sorted out.
After completing her purchase, Metz exited the Walgreens and walked to her vehicle in
the parking lot. After placing her purchased items and purse in her car, she left it with the door
open to speak to acquaintances who were parked nearby. After Metz drove home, however, she
realized her purse, which contained her mother’s Belk credit card, was missing. She
immediately notified her credit card companies, but forgot to notify Belk.
Later that day, appellant and Bivens traveled to a Belk store in North Carolina where they
used the Belk credit card that belonged to Metz’s mother. Afterwards, they traveled to a Belk
store in Danville, Virginia, where they used the Belk credit card to purchase items from three
locations within the store. First, Bivens purchased merchandise from the handbag department in
-2- the amount of $682.86 at 7:55 p.m. Second, Bivens purchased merchandise at a cash register at
the front of the men’s department in the amount of $863.87 at 8:15 p.m. Lastly, Bivens
purchased merchandise at a cash register in the back of the men’s department in the amount of
$612.98 at 8:25 p.m. Surveillance footage showed appellant accompanying Bivens in the
handbag department at the time of the first transaction. The other two transactions were not
taped, but surveillance footage showed appellant testing men’s cologne shortly after the first
transaction, and men’s cologne was one of the items purchased in the second transaction.
At the conclusion of the Commonwealth’s evidence, appellant moved to strike the
evidence as to two of the grand larceny charges, arguing that the single larceny doctrine should
be applied. The trial court denied the motion, noting that each transaction was a distinct larceny.
At the conclusion of appellant’s evidence, the trial court denied appellant’s renewed motion to
strike, finding that because there were three separate transactions at three different departments
within the store, the single larceny doctrine did not apply. This appeal followed.
II. ANALYSIS
On appeal, appellant contends that the trial court erred by convicting him on three counts
of grand larceny. Specifically, appellant argues the single larceny doctrine should have applied,
resulting in a single conviction for grand larceny. The Commonwealth responds by arguing that
the record contains credible evidence to support the trial court’s determination that the single
larceny doctrine is not applicable to the present case.
“The overriding principle behind the single larceny doctrine is to prevent the state from
aggregating multiple criminal penalties for a single criminal act.” Richardson v.
Commonwealth, 25 Va. App. 491, 496, 489 S.E.2d 697, 700 (1997) (en banc). Indeed, “unless
the evidence proves that two or more separate and discrete thefts occurred at separate times
-3- which were not part of the same larcenous impulse, then thefts from the same room are but a
single larceny.” Id. at 497, 489 S.E.2d at 700. In Acey v. Commonwealth, 29 Va. App. 240,
247, 511 S.E.2d 429, 432 (1999), this Court recognized factors that may apply when considering
the applicability of the single larceny doctrine:
A series of larcenous acts will be considered a single count of larceny if they “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). We must consider the following factors when deciding whether the single larceny doctrine applies: (1) the location of the items taken, (2) the lapse of time between the takings, (3) the general and specific intent of the taker, (4) the number of owners of the items taken and (5) whether intervening events occurred between the takings. See Richardson v. Commonwealth, 25 Va. App. 491, 497, 489 S.E.2d 697, 700 (1997) (en banc).
Application of the doctrine, however, “becomes problematic when applied to the infinite
variety of circumstances that can arise.” Sagastume v. Commonwealth, 27 Va. App. 466, 471,
499 S.E.2d 586, 589 (1998). Indeed, “[t]here is no litmus test that will determine whether a
defendant’s conduct constitutes a single crime or multiple crimes.” Richardson, 25 Va. App. at
496, 489 S.E.2d at 700.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Huff UNPUBLISHED
Argued at Salem, Virginia
KENNETH JOSEPH GIBSON MEMORANDUM OPINION* BY v. Record No. 1674-12-3 JUDGE GLEN A. HUFF MARCH 4, 2014 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE Stacey W. Moreau, Judge
M. Lee Smallwood, II, Senior Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Lauren C. Campbell, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Kenneth Joseph Gibson (“appellant”) appeals his convictions of three counts of grand
larceny, in violation of Code § 18.2-95. Following a bench trial in the Circuit Court of the City
of Danville (“trial court”), appellant was sentenced to fifteen years’ incarceration with thirteen
years suspended. On appeal, appellant contends that the trial court erred by convicting him of
three distinct counts of grand larceny when the single larceny doctrine should have been applied,
resulting in only a single conviction of grand larceny. For the following reasons, this Court
affirms the judgment of the trial court.
I. BACKGROUND
On appeal, “‘we consider the evidence and all reasonable inferences flowing from that
evidence in the light most favorable to the Commonwealth, the prevailing party at trial.’”
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)
(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). This
principle requires us to “discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270
S.E.2d 755, 759 (1980) (emphasis and citation omitted). So viewed, the evidence is as follows.
On July 26, 2011, appellant and Rasheema Bivens (“Bivens”) patronized a fast-food
restaurant where they sat at a table directly behind Tiffany Adkins (“Adkins”). A surveillance
camera recorded Bivens reaching into Adkins’s purse and removing her wallet. Appellant and
Bivens then left the restaurant and went to a Walgreens located across the street, where they
again were captured by a surveillance camera. Accompanied by appellant, Bivens attempted to
use Adkins’s credit card to purchase over five hundred dollars in merchandise, but the credit card
was declined. Brenda Metz (“Metz”) was in line behind appellant and Bivens at the time the
credit card was declined and moved to another register while the matter was sorted out.
After completing her purchase, Metz exited the Walgreens and walked to her vehicle in
the parking lot. After placing her purchased items and purse in her car, she left it with the door
open to speak to acquaintances who were parked nearby. After Metz drove home, however, she
realized her purse, which contained her mother’s Belk credit card, was missing. She
immediately notified her credit card companies, but forgot to notify Belk.
Later that day, appellant and Bivens traveled to a Belk store in North Carolina where they
used the Belk credit card that belonged to Metz’s mother. Afterwards, they traveled to a Belk
store in Danville, Virginia, where they used the Belk credit card to purchase items from three
locations within the store. First, Bivens purchased merchandise from the handbag department in
-2- the amount of $682.86 at 7:55 p.m. Second, Bivens purchased merchandise at a cash register at
the front of the men’s department in the amount of $863.87 at 8:15 p.m. Lastly, Bivens
purchased merchandise at a cash register in the back of the men’s department in the amount of
$612.98 at 8:25 p.m. Surveillance footage showed appellant accompanying Bivens in the
handbag department at the time of the first transaction. The other two transactions were not
taped, but surveillance footage showed appellant testing men’s cologne shortly after the first
transaction, and men’s cologne was one of the items purchased in the second transaction.
At the conclusion of the Commonwealth’s evidence, appellant moved to strike the
evidence as to two of the grand larceny charges, arguing that the single larceny doctrine should
be applied. The trial court denied the motion, noting that each transaction was a distinct larceny.
At the conclusion of appellant’s evidence, the trial court denied appellant’s renewed motion to
strike, finding that because there were three separate transactions at three different departments
within the store, the single larceny doctrine did not apply. This appeal followed.
II. ANALYSIS
On appeal, appellant contends that the trial court erred by convicting him on three counts
of grand larceny. Specifically, appellant argues the single larceny doctrine should have applied,
resulting in a single conviction for grand larceny. The Commonwealth responds by arguing that
the record contains credible evidence to support the trial court’s determination that the single
larceny doctrine is not applicable to the present case.
“The overriding principle behind the single larceny doctrine is to prevent the state from
aggregating multiple criminal penalties for a single criminal act.” Richardson v.
Commonwealth, 25 Va. App. 491, 496, 489 S.E.2d 697, 700 (1997) (en banc). Indeed, “unless
the evidence proves that two or more separate and discrete thefts occurred at separate times
-3- which were not part of the same larcenous impulse, then thefts from the same room are but a
single larceny.” Id. at 497, 489 S.E.2d at 700. In Acey v. Commonwealth, 29 Va. App. 240,
247, 511 S.E.2d 429, 432 (1999), this Court recognized factors that may apply when considering
the applicability of the single larceny doctrine:
A series of larcenous acts will be considered a single count of larceny if they “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). We must consider the following factors when deciding whether the single larceny doctrine applies: (1) the location of the items taken, (2) the lapse of time between the takings, (3) the general and specific intent of the taker, (4) the number of owners of the items taken and (5) whether intervening events occurred between the takings. See Richardson v. Commonwealth, 25 Va. App. 491, 497, 489 S.E.2d 697, 700 (1997) (en banc).
Application of the doctrine, however, “becomes problematic when applied to the infinite
variety of circumstances that can arise.” Sagastume v. Commonwealth, 27 Va. App. 466, 471,
499 S.E.2d 586, 589 (1998). Indeed, “[t]here is no litmus test that will determine whether a
defendant’s conduct constitutes a single crime or multiple crimes.” Richardson, 25 Va. App. at
496, 489 S.E.2d at 700. “The primary factor to be considered,” however, “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.” Id. at 497, 489 S.E.2d at 700 (emphasis added).
As the applicability of the single larceny doctrine turns on the particular facts of each
case, and primarily the intent of the thief, this Court “will affirm the trial court’s determination
unless plainly wrong or unless the record lacks any evidence to support that determination.”
Bragg v. Commonwealth, 42 Va. App. 607, 612, 593 S.E.2d 558, 560 (2004). Thus, in the
present case, “our inquiry is whether the evidence supports the fact finder’s determination that
the acts were individual impulses and not committed under a ‘single impulse and in execution of
-4- a general fraudulent scheme.’” Richardson, 25 Va. App. at 496, 489 S.E.2d at 700 (quoting
West, 125 Va. at 754, 99 S.E. at 656).
In the present case, appellant and Bivens used the Belk credit card to complete three
transactions, each separated by ten to twenty minutes, at three different locations within the Belk
department store. Between each transaction, appellant and Bivens carried away their purchased
items and walked through the store to a different cash register before making a new transaction.
Furthermore, after the initial transaction in the handbag department, video surveillance footage
showed appellant testing men’s cologne, which was subsequently purchased in the second
transaction.
From this evidence, “the [trial court] 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.’” Sagastume,
27 Va. App. at 472, 499 S.E.2d at 589 (quoting Richardson, 25 Va. App. at 498, 489 S.E.2d at
701). Appellant’s actions indicate that he and Bivens roamed throughout the department store
after each transaction, testing and shopping for new items of merchandise before purchasing
them. Under these circumstances, it is reasonable to infer that appellant “acted pursuant to a new
impulse to unlawfully take [each] additional piece of [merchandise] he encountered.”
Richardson v. Commonwealth, 23 Va. App. 668, 675, 479 S.E.2d 87, 90 (1996), rev’d in part on
other grounds upon rehearing en banc, 25 Va. App. 491, 489 S.E.2d 697 (1997); see also West,
125 Va. at 754, 99 S.E. at 656 (“the taking of property at different times, though from the same
place and from the same owner, will constitute separate offenses”). Accordingly, credible
-5- evidence exists to support the trial court’s determination that the single larceny doctrine is not
applicable.1
III. CONCLUSION
The trial court’s finding that appellant committed three separate and distinct larcenies as
a principal in the second degree was not plainly wrong or without evidence to support it.
Therefore, this Court affirms the judgment of the trial court.
Affirmed.
1 Appellant alternatively argues that because he was convicted as a principal in the second degree, his actions should qualify for application of the single larceny doctrine even if Bivens’s actions as the principal would not. This argument, however, is not properly before this Court because appellant failed to make this argument before the trial court. Consequently, it is barred by Rule 5A:18 as the trial court never had the opportunity to intelligently rule on this issue. Furthermore, appellant does not argue that this Court should invoke either the good cause or ends of justice exceptions to Rule 5A:18, and this Court will not consider Rule 5A:18 exceptions sua sponte. Edwards v. Commonwealth, 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) (en banc). Nevertheless, appellant’s argument is meritless. Code § 18.2-18 provides that principals in the second degree “may be indicted, tried, convicted and punished in all respects as if a principal in the first degree . . . .” Consequently, appellant’s argument fails.
-6-