Luis A. Campos, s/k/a Luis Antonio Campos v. Commonwealth ( 2004 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Clements and Senior Judge Willis
Argued at Alexandria, Virginia
LUIS A. CAMPOS, S/K/A
LUIS ANTONIO CAMPOS MEMORANDUM OPINION* BY
JUDGE ROBERT P. FRANK
v. Record No. 1462-03-4 OCTOBER 5, 2004
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PAGE COUNTY
John J. McGrath, Jr., Judge
S. Jane Chittom, Appellate Defender (Public Defender Commission,
on briefs), for appellant.
Deana A. Malek, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Luis A. Campos, appellant, was convicted in a bench trial of attempted grand larceny of a
vehicle in violation of Code §§ 18.2-95 and 18.2-26, and grand larceny of the contents of the
vehicle in violation of Code § 18.2-95. On appeal, appellant does not contest the sufficiency of the
evidence, nor that he was the perpetrator. He contends the trial court erred in finding him guilty of
both charges in violation of the “single larceny doctrine.” Finding this issue was not preserved
below, we affirm the two convictions.
ANALYSIS
The facts are not controverted. Appellant was seen standing next to a Toyota Celica beating
on a window with a rock. Appellant’s companion broke the passenger’s window and leaned into
the Toyota. The companion was later seen taking a box of items from the Toyota to a green
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Chevrolet truck parked in front of the Toyota. Later, state police found items stolen from the
Toyota in appellant’s Chevrolet truck.
A state trooper inspected the Toyota and discovered the driver’s window had been battered
but not broken. The passenger window was shattered. The “face” of the radio and the “basic parts”
of the radio had been removed. A number of other items had been stolen from the Toyota.
The same trooper also discovered a motorcycle key had been placed in the ignition. It was
not the key to the Toyota and would not start the car. The Toyota’s owner observed the key had
been “jammed” into the ignition.
At the conclusion of the Commonwealth’s case, appellant moved to strike the evidence as
follows:
I would suppose the Commonwealth was relying on the evidence
about the key being in the ignition, to prove that there was an
attempt to steal the vehicle. It sort of would make sense that they
would have stopped . . . the individuals would have stopped
breaking into the vehicle, used the key, and just driven away the
vehicle, with everything else in it. And I think it is a violation of
due process of law to prosecute Mr. Campos for having stolen
some of the items, but one of the items, the vehicle itself, was not
actually taken, and he is charged with attempted theft of that. I
think, as I say it, it would be a violation of due process of law, to
convict him on both of those.
Obviously, someone stole items worth more than two hundred
dollars, from the vehicle. But then to try to charge him with an
additional count, or additional violation of law, attempt of grand
larceny, I think that is a violation of his rights.
* * * * * * *
That would be my argument. I think he should be acquitted on
Count One [unlawfully climb in the vehicle of another person with
the intent to commit larceny therein], and either Count Three
[unlawfully and feloniously steal personal property belonging to
another person which had a value of more than $200] or Count
Four [unlawfully and feloniously attempt to steal a motor vehicle
belonging to another person which had a value of more than $200].
I don’t think it would be fair to convict him of both Count Three
and Count Four. Thank you.
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The Commonwealth argued, in part, as follows:
But also the fact that they climb in the vehicle to steal a stereo
system and stereo CDs well worth over two hundred dollars, which
they weren’t successful with, either one of those two intents would
suffice. And I think it is not multiplicious to charge him with
attempted grand theft auto, which wasn’t successful, and then turn
around and allege and prove that they are guilty of the larceny, the
actual consummated larceny of the stereo system and other items.
On appeal, appellant contends that since he acted on a “single impulse” he should have
been convicted of only one count of larceny under the “single larceny doctrine.”
The Commonwealth contends this argument is procedurally defaulted under Rule 5A:18
since appellant argued the two convictions violated his due process rights. Appellant counters
that even if his due process argument does not preserve the issue, the Commonwealth preserved
the issue when it argued to the trial court that it was not “multiplicious” to charge appellant with
the attempted larceny of the vehicle and grand larceny of the contents of the vehicle. Appellant
concludes the Commonwealth’s use of the term “multiplicious” put the trial court on notice that
he was arguing the “single larceny doctrine.” We disagree.
Rule 5A:18 promotes the correction of error at the trial level. Lee v. Lee, 12 Va. App.
512, 514, 404 S.E.2d 736, 737 (1991). By its own terms, the rule mandates that objections must
be “stated together with the grounds therefor.” Rule 5A:18.
Rule 5A:18 requires a certain degree of specificity. See, e.g., Copeland v.
Commonwealth, 42 Va. App. 424, 441, 592 S.E.2d 391, 399 (2004) (holding that appellant could
not argue on appeal that he did not intend to distribute cocaine on school property where he
argued before the trial court only that no evidence established he was within 1,000 feet of school
property). An objection made at trial on one ground does not preserve for appeal a contention on
a different ground. Clark v. Commonwealth, 30 Va. App. 406, 411, 517 S.E.2d 260, 262 (1999).
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The purpose underlying this rule is to afford the trial court an opportunity to rule
intelligently on the arguments presented and to take corrective action if necessary. Martin v.
Commonwealth, 13 Va. App. 524, 530, 414 S.E.2d 401, 404 (1992); Lee, 12 Va. App. at 514,
404 S.E.2d at 737. The purpose and terms of the rule, therefore, are met if the appellant
sufficiently apprises the trial court of the basis of his objection. See Chaine v. Commonwealth,
17 Va. App. 179, 183, 436 S.E.2d 187, 189 (1993), aff’d on reh’g en banc, 18 Va. App. 301, 443
S.E.2d 924 (1994).
The prosecutor’s use of the term “multiplicious” did not preserve appellant’s issue for
review.1 “‘Multiplicity . . . is the charging of a single offense in several counts.’” United States
v. Stewart, 256 F.3d 231, 247 (4th Cir. 2001) (quoting United States v. Burns, 990 F.2d 1426,
1438 (4th Cir. 1993)). The danger is that a defendant may be given multiple sentences for the
same offense. Burns, 990 F.2d at 1438. Black’s Law Dictionary defines “multiplicity” as the
“improper charging of the same offense in several counts of the indictment or information.”
Black’s Law Dictionary 1041(8th ed. 2004). Multiplicity can also raise double jeopardy issues
which require a Blockburger analysis. See, e.g., United States v. Bailey, 112 F.3d 758, 767 (4th
Cir. 1997) (Two statutes, although punishing the same transaction, are not multiplicitous where
each requires proof of an additional fact which the other does not.).
While multiplicity is broad enough to include an argument that appellant should only
have been convicted of one of the two larceny counts, it is also broad enough to include
appellant’s due process argument or a Blockburger argument. Thus, the argument in the trial
court did not raise the particular points now being raised on appeal. The court was never asked
to evaluate the fundamental issues essential to a single larceny analysis: location of stolen items,
1
We equate the prosecutor’s use of the term “multiplicious” with the more common
“multiplicitous.”
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lapse of time between their taking, general and specific intent of the thief, number of owners, and
whether intervening acts occurred between the taking. See Richardson v. Commonwealth, 25
Va. App. 491, 497, 489 S.E.2d 697, 700 (1997). Further, the record contains no mention of a
“single impulse,” “general fraudulent scheme,” nor any of the other considerations of the single
larceny doctrine set out by this Court in Richardson. Id. at 496, 489 S.E.2d at 700. In the
context of appellant’s argument below, the “multiplicious” language advanced by the
Commonwealth would not alert the trial court of appellant’s position. It is not specific enough to
put the trial court on notice of appellant’s “single larceny doctrine” argument he now makes on
appeal. We conclude that neither appellant’s “due process” and “fairness” argument below, nor
the Commonwealth’s comments on “multiplicious,” were sufficient to alert the trial court to a
“single larceny doctrine” argument.
Accordingly, we affirm.
Affirmed.
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