Graves v. Commonwealth , 21 Va. App. 161 ( 1995 )

WILLIS, Judge.

On appeal from his conviction of grand larceny from the person, Delano Leroy Graves contends the trial court erred in reducing the original robbery charge to grand larceny from the person. We agree and reverse the judgment of the trial court.

On August 25,1992, while robbing the Open House Diner in Newport News, Graves snatched a twenty dollar bill out of the hand of Richard Epes McMurran, Jr., a customer. He was charged with robbing McMurran. The indictment specified:

On or about the 25th day of August, 1992, in the City of Newport News, DELANO LEROY GRAVES feloniously did rob Richard Epes McMurran, Jr., of United States currency.

At the conclusion of the Commonwealth’s evidence, the trial court struck the evidence as to robbery. The court held that grand larceny from the person is a lesser offense included within a charge of robbery and permitted the case to go forward on a charge of grand larceny from the person. The issue embraced within this appeal is the sufficiency of the indictment to support a conviction of grand larceny from the person. Because we find the indictment insufficient, we reverse the conviction.

Robbery, a common law crime, is defined as “the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” Mason v. Commonwealth, 200 Va. 253, 254, 105 S.E.2d 149, 150 (1958) (citations omitted). While the definition of robbery includes, as an element, the theft of property, it does not include, as elements, either the value of the property taken or that the property be taken from the person of the victim.

Larceny, a common law crime, is the taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intent to deprive the owner thereof permanently. Jones v. Commonwealth, 3 Va.App. 295, 300, 349 S.E.2d 414, 417-18 (1986). Simple or petit larceny is punishable as a misdemeanor. Code § 18.2-96. Larceny committed from the person of another of money or other thing of a value of five dollars or more is punishable as grand larceny from the person, a felony. Code § 18.2—95(i). The elements of grand larceny from the person include the value of the property stolen and theft from the person of the victim.

The indictment did not charge grand larceny from the person. While it alleged theft, it contained no allegation of the value of the property stolen and no allegation that the property was taken from McMurran’s person. Thus, the indictment, on its face, failed to specify an accusation of grand larceny from the person.

The Commonwealth contends that although the indictment did not specifically set forth that charge, grand larceny from the person is a lesser offense included within an accusation of robbery and, thus, the specification of robbery in the indictment set forth sufficiently an accusation of grand larceny from the person.

A lesser included offense must be “composed entirely of elements that are also elements of the greater offense.” The lesser offense is therefore always “charged by implication” as a part of the “greater offense” and “necessarily proven by the proof of the greater offense.” The elements of the ciimes, their “fundamental nature,” are determinative, not “the particular facts of a specific case or the language of a given indictment.”

Crump v. Commonwealth, 13 Va.App. 286, 290, 411 S.E.2d 238, 241 (1991) (citations omitted). The Commonwealth argues that the charge of robbery set forth in the indictment included an accusation of the attendant theft and of all the elements and circumstances actually involved in that theft. We find guidance in Jones v. Commonwealth, 218 Va. 757, 240 S.E.2d 658 (1978), cert. denied, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 238.

The accused in Jones robbed a motel night clerk of money and thé keys to a courtesy car. He then walked about 200 yards across the motel parking lot and stole the courtesy car. He was convicted under indictments charging robbery of the night clerk and grand larceny of the courtesy car. Claiming violation of his right to be free from double jeopardy, Jones contended on appeal that the robbery of the night clerk included the larceny of the courtesy car. Rejecting this argument and affirming the conviction, the Supreme Court said:

[The defendant’s] constitutional claim is based upon his argument that, generically, grand larceny is a lesser-included offense of robbery. We believe that, for purposes of the double jeopardy clauses, grand larceny is a lesser-included offense of robbery only when it is the theft expressly charged in the robbery indictment.

One offense is not lesser-included within another unless all of its elements are included in the other. Said differently, one offense is not lesser-included within another if it contains an element the other does not.

Before a lesser offense can be said to constitute a necessary part of a greater offense, all the legal ingredients of the corpus delicti of the lesser offense must be included in the elements of the greater offense; so, if an element necessary to establish the corpus delicti of the lesser offense is irrelevant to the proof of the greater offense, the lesser cannot be held to be a necessarily included offense.

Definitionally, theft is an essential component of robbery and charged as such in every robbery indictment. Manifestly, a robbery indictment includes all elements of whatever larceny offense it charges, whether grand or petit, and the larceny offense charged is, therefore, lesser-included in robbery. Here, grand larceny of the car was not charged in the robbery indictment. Since one of the essential elements of that larceny offense was the value of the car, and that element was not an essential element of robbery, we hold that the crime of larceny of which defendant was convicted was not lesser-included in the crime of robbery of which he was convicted.

Id. at 759-60, 240 S.E.2d at 660-61 (citations omitted).

Because the indictment against Graves did not set forth allegations of value or of theft from the person, it did not charge grand larceny from the person. Therefore, grand larceny from the person was not a lesser offense included ■within the robbery specification of the indictment.

In Garland v. Commonwealth, 18 Va.App. 706, 446 S.E.2d 628 (1994), we considered the scope of the “from the person” element of grand larceny from the person. In Garland, the victim was standing at the open drawer of a cash register which she was operating. The accused reached “to within inches” of the victim and snatched money from the cash drawer. Because no Virginia decision had specifically defined the scope of the “from the person” element, we discussed holdings from several other states to create a context in which to determine the definition to be applied in Virginia. Distinguishing the “from the person” requirement from the “in his presence” requirement of robbery, id. at 708, 446 S.E.2d at 629, and finding the evidence sufficient to support the grand larceny conviction, we said:

Thus, we hold that larceny from the person embraces not only theft of property from physical contact with the victim, but also theft of property that is in the victim’s possession and within his immediate custody and control.

Id. at 710, 446 S.E.2d at 680. Plainly, the perimeter thus defined is more restrictive than the “in his presence” perimeter sufficient for robbery. Thus, proof sufficient to satisfy the “in his presence” requirement for robbery will not necessarily prove the “from his person” element of grand larceny from the person.

Because robbery includes, by definition, an element of simple larceny, the bare accusation of robbery in the indictment sufficiently charged simple or petit larceny. Therefore, we remand this case to the trial court for further proceedings, if the Commonwealth be so advised.

Reversed and remanded.