JERMAINE ORSON YANCEY V COMMONWEALTH OF VIRGINIA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee
Argued at Chesapeake, Virginia
JERMAINE ORSON YANCEY
MEMORANDUM OPINION * BY
v. Record No. 2647-01-2 JUDGE ROBERT J. HUMPHREYS
JULY 30, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HANOVER COUNTY
John Richard Alderman, Judge
L. Willis Robertson, Jr. (Cosby & Robertson,
on brief), for appellant.
Donald E. Jeffrey, III, Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
Jennifer R. Franklin, Assistant Attorney
General, on brief), for appellee.
Jermaine Orson Yancey appeals his conviction, after a bench
trial, for grand larceny, in violation of Code § 18.2-95. Yancey
contends the evidence was insufficient as a matter of law to
support the conviction.
Specifically, Yancey argues there was no evidence to
establish an unlawful taking, nor that he intended to steal the
car. For the reasons that follow, we affirm the judgment of the
trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication. Further, because this memorandum
opinion has no precedential value, we recite only those facts
necessary to our holding.
Code § 18.2-95 provides as follows, in pertinent part:
Any person who (i) commits larceny from the
person of another of money or other thing of
value of $5 or more, (ii) commits simple
larceny not from the person of another of
goods and chattels of the value of $200 or
more, or (iii) commits simple larceny not
from the person of another of any firearm,
regardless of the firearm's value, shall be
guilty of grand larceny.
"Larceny . . . is 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. The animus furandi must accompany the taking. But
the wrongful taking of property in itself imports the animus
furandi." 1
Thus, the Commonwealth must prove that Yancey took Gerald
Sykes' 1999 Cadillac Escalade with the intention to deprive Sykes
permanently of his possession of it. 2 However, intent may, and
often must, be proved by circumstantial evidence.3 Thus, in
determining whether the Commonwealth has proven a specific intent,
1
Slater v. Commonwealth, 179 Va. 264, 266, 18 S.E.2d 909,
910 (1942).
2
Welch v. Commonwealth, 15 Va. App. 518, 521-22, 425 S.E.2d
101, 104 (1992).
3
See Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d
669, 673-74 (1995).
- 2 -
"the factfinder may consider the conduct of the person involved
and all the circumstances revealed by the evidence." 4
Under the circumstances of this case, it is necessary to
first recognize that larceny also involves a "trespassory"
taking. 5 In Pritchard v. Commonwealth, 225 Va. 559, 303 S.E.2d
911 (1983), the Supreme Court of Virginia held that "[t]he owner
of personal property may deliver it to another upon conditions, or
in circumstances, which give the recipient bare custody of the
property. [However,] [c]onstructive possession remains in the
owner."6 For example, "a watch handed to a friend to time a race,
the owner expecting its return at the end of the race." 7 "'A
felonious conversion of another's property by one having bare
charge or custody of it involves a trespass and constitutes
larceny.'" 8
4
Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 193,
198 (1987).
5
See Overstreet v. Commonwealth, 17 Va. App. 234, 236, 435
S.E.2d 906, 908 (1993).
6
225 Va. at 562, 303 S.E.2d at 913.
7
Id.
8
Overstreet, 17 Va. App. at 236, 435 S.E.2d at 908 (quoting
50 Am. Jur. 2d Larceny § 23 (1970)); see also Code § 18.2-117,
which states, in relevant part:
If any person comes into the possession as
bailee of any animal, aircraft, vehicle,
boat or vessel, and fail to return the same
to the bailor, in accordance with the
bailment agreement, he shall be deemed
guilty of larceny thereof and receive the
- 3 -
Despite Yancey's claims to the contrary, the circumstantial
evidence, particularly Yancey's conduct, established that he
intended to permanently deprive Sykes of the Cadillac. Yancey
took the car to wash it, as directed, but did not attempt to
return the Cadillac to Sykes or even contact Sykes about his
possession of the car, prior to embarking upon a trip to New York
in the car. Accordingly, we find the evidence sufficient to
establish larceny and affirm the judgment of the trial court.
Affirmed.
same punishment, according to the value of
the thing stolen, prescribed for the
punishment of the larceny of goods and
chattels.
- 4 -