Jonathan T Ward v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Hodges
Argued at Salem, Virginia
JONATHAN T. WARD
MEMORANDUM OPINION * BY
v. Record No. 2799-01-3 JUDGE LARRY G. ELDER
APRIL 8, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF GRAYSON COUNTY
J. Colin Campbell, Judge
Phillip W. Jones for appellant.
(Jerry W. Kilgore, Attorney General; Amy L.
Marshall, Assistant Attorney General, on
brief), for appellee. Appellee submitting
on brief.
Jonathan T. Ward (appellant) appeals from his bench trial
conviction for petit larceny based on his taking two cassette
tapes from the temporary residence of his wife, from whom he was
then separated. On appeal, he contends the trial court
erroneously (1) allowed the Commonwealth to argue facts not in
evidence and relied on those facts in convicting him of the
charged offense and (2) concluded the evidence was sufficient to
support his conviction. We hold the evidence, based on the
facts found by the trial court, was insufficient to support
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
appellant's conviction. We reverse and dismiss without reaching
appellant's additional assignment of error.
On appeal from a criminal conviction, we view the evidence
and all reasonable inferences therefrom in the light most
favorable to the Commonwealth. Higginbotham v. Commonwealth,
216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). On issues of
witness credibility, we defer to the conclusions of "the fact
finder[,] who has the opportunity of seeing and hearing the
witnesses." Schneider v. Commonwealth, 230 Va. 379, 382, 337
S.E.2d 735, 736-37 (1985). On appeal, we may reverse the trial
court's findings of fact only if they are plainly wrong or
without evidence to support them. Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
"Larceny is defined as the wrongful or fraudulent taking of
personal goods of some intrinsic value, belonging to another,
without his assent, and with the intention to deprive the owner
thereof permanently." Jones v. Commonwealth, 3 Va. App. 295,
300, 349 S.E.2d 414, 417-18 (1986). Except as modified by
statute, see, e.g., Code § 18.2-192, only tangible personal
property may be the subject of larceny. Owolabi v.
Commonwealth, 16 Va. App. 78, 80-81, 428 S.E.2d 14, 15 (1993).
At common law, "one co-owner (e.g., a partner, tenant in common,
joint tenant) cannot steal from the other co-owner." Wayne R.
LaFave & Austin W. Scott, Jr., Criminal Law § 8.4(c), at 720 (2d
ed. 1986). Further, "[i]t is not larceny to take a chattel from
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its possessor under a bona fide, though mistaken, claim of
right." Roger D. Groot, Criminal Offenses and Defenses in
Virginia, at 335 (4th ed. 1998); see Pierce v. Commonwealth, 205
Va. 528, 533, 138 S.E.2d 28, 31-32 (1964). A statement of such
belief, if found credible by the trial court, negates a finding
of criminal intent. Pierce, 205 Va. at 533, 138 S.E.2d at 32.
In light of the above principles, we agree with the
Commonwealth's concession that the trial court erred when it
ruled that appellant was guilty of larceny because the content
of the audiotape belonged to appellant's wife. The court
clearly distinguished between the tape itself and the "recording
on the tape." As set out above, only tangible personal property
may be the subject of larceny. Thus, the trial court's
rationale underlying the conviction was erroneous.
Furthermore, the trial court's implicit findings of fact
compel the conclusion that appellant did not act with the
requisite criminal intent. Appellant testified it was the
custom during his marriage for him and his wife to purchase
blank cassette tapes, record music on them, and hand-label them
with their initials, "T & D." The tapes appellant took bore
those initials. Appellant admitted taking the tapes but
testified he was "'certain' that the tapes were his 'or at least
ours.'" The trial court made an implicit finding that appellant
had at least a good faith belief that he had a claim of right to
the tapes. Appellant's claim of right negated a finding that
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appellant acted with the requisite intent to steal the tapes.
Thus, we hold the evidence, as found by the trial court, was
insufficient to support appellant's conviction.
This result does not contravene Stewart v. Commonwealth,
219 Va. 887, 889, 252 S.E.2d 329, 331 (1979), in which the
Supreme Court, interpreting Code § 55-35, held that a husband
may be convicted of larceny of the separate property of his
wife. The husband in Stewart admitted the property at issue
belonged to his wife and made no claim that he took the property
under a bona fide claim of right. 219 Va. at 889, 252 S.E.2d at
330. Here, based on the facts as found by the trial court, the
holding in Stewart is inapplicable.
For these reasons, we reverse and dismiss appellant's
conviction without reaching appellant's additional assignment of
error.
Reversed and dismissed.
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