Michael Bassey Akpan v. Commonwealth of Virginia ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Petty
Argued at Richmond, Virginia
MICHAEL BASSEY AKPAN
MEMORANDUM OPINION * BY
v. Record No. 0906-09-2 JUDGE ROBERT J. HUMPHREYS
MARCH 2, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
Samuel E. Campbell, Judge
Charles R. Watson for appellant.
Josephine F. Whalen, Assistant Attorney General II (William C.
Mims, Attorney General, on brief), for appellee.
Michael Bassey Akpan (“Akpan”) appeals his four convictions for attempting to obtain
money by false pretenses, in violation of Code §§ 18.2-178 and 18.2-26. 1 On appeal, Akpan
contends that, under the “single larceny doctrine,” the evidence adduced at trial was only
sufficient to support a single conviction. For the following reasons, we agree with Akpan and
reverse. 2
“Where the issue is whether the evidence is sufficient, we view the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Three of Akpan’s four convictions were felony convictions.
2
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, we recite only those facts and incidents of
the proceedings as are necessary to the parties’ understanding of this appeal.
therefrom.” Sandoval v. Commonwealth, 20 Va. App. 133, 135, 455 S.E.2d 730, 731 (1995).
So viewed the evidence in the record was as follows.
On January 31, 2008, Akpan and Tiffany Ward (“Ward”) deposited a forged check into
Ward’s account at the Fort Lee Federal Credit Union. 3 Over the next few days, Akpan used
Ward’s card to withdraw money from her account. By February 7, 2008, Akpan had withdrawn
$2,280 from the account. On that day, the credit union discovered that the check was a forgery
and, unbeknownst to Akpan, froze Ward’s account. Later that same day, Akpan attempted to
withdraw money from the credit union’s ATM. Initially, Akpan tried to withdraw $400 from the
ATM, but the transaction was declined. He then immediately tried to withdraw $300, but again,
the transaction was declined. Undeterred, Akpan made two additional attempts to withdraw
money from the account, first for $200 and then for $100. Each time, Akpan would insert
Ward’s card into the ATM, enter her PIN, and attempt to withdraw money. A mere twenty-four
seconds elapsed from Akpan’s first attempted withdrawal to his last.
Ultimately, Akpan was arrested and admitted that he attempted to withdraw funds from
the frozen account on February 7, 2008. The trial court found Akpan guilty of four counts of
attempting to obtain money by false pretense, concluding that each attempt to withdraw money
from the ATM constituted a separate offense. On appeal, Akpan contends that, under the “single
larceny doctrine,” the evidence adduced at trial was only sufficient to prove a single offense, not
four. We agree.
“‘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.’” Millard v.
Commonwealth, 34 Va. App. 202, 206, 539 S.E.2d 84, 86 (2000) (quoting Acey v.
3
Akpan was also convicted of two counts of attempting to utter/forge a check; however,
those convictions are not at issue in this appeal.
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Commonwealth, 29 Va. App. 240, 247, 511 S.E.2d 429, 432 (1999)). As we have previously
noted, “‘[t]he overriding principle behind the single larceny doctrine is to prevent the state from
aggregating multiple criminal penalties for a single criminal act.’” Id. (quoting Richardson v.
Commonwealth, 25 Va. App. 491, 496, 489 S.E.2d 697, 700 (1997) (en banc)). In order to
determine whether the “single larceny doctrine” applies to a particular set of circumstances, we
must consider the following factors: “(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.” Id. However,
“‘[t]he primary factor to be considered is the intent of the thief . . . .’” Acey, 29 Va. App. at 247,
511 S.E.2d at 432 (quoting Richardson, 25 Va. App. at 497, 489 S.E.2d at 700).
Applying the above factors to this case, we hold that Akpan’s actions constituted a single
criminal act. The evidence in the record demonstrates that Akpan made four, successive
attempts to withdraw money from a frozen bank account, through the bank’s ATM. Each time,
the ATM declined the transaction. Virtually no time elapsed between the attempted takings, the
bank was the only victim, and there were no intervening events sufficient to “break the
continuity of [Akpan’s] single and continuing act of thievery.” Richardson, 25 Va. App. at 498,
489 S.E.2d at 701. 4 Furthermore, it is clear from the record that “the [attempted] thefts were part
of the same larcenous impulse” to access the illegally obtained funds through the bank’s ATM.
Id. at 497, 489 S.E.2d at 700. Thus, we hold that, under the “single larceny doctrine,” the
evidence adduced at trial was sufficient to prove only a single criminal act on the part of Akpan.
4
The Commonwealth argues that the ATM’s ejection of Ward’s bankcard constituted an
intervening event for purposes of the single larceny analysis. The Commonwealth claims that
Akpan “had to form a separate intent” after his initial attempt to withdraw money from the ATM
was denied. We disagree. In our view, the record demonstrates that Akpan acted “‘pursuant to a
single impulse and in execution of a general fraudulent scheme.’” Millard, 34 Va. App. at 206,
539 S.E.2d at 86 (quoting Acey v. Commonwealth, 29 Va. App. 240, 247, 511 S.E.2d 429, 432
(1999)).
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As a result, we reverse the trial court and remand this matter to the trial court for it to determine,
with the assistance of the Commonwealth, which three of the four convictions for attempting to
obtain money by false pretenses to vacate and to re-sentence Akpan accordingly.
Reversed and remanded.
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