Steven Lamont Joel Scott v Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia
STEVEN LAMONT JOEL SCOTT
OPINION BY
v. 	Record No. 1787-00-2 	JUDGE ROBERT J. HUMPHREYS
JULY 31, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
S. Jane Chittom, Appellate Defender (Public
Defender Commission, on briefs), for
appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Steven Lamont Joel Scott appeals his conviction, after a
bench trial, of two counts of obtaining a credit card from
Hubert Hopkins, with the intent to use, transfer or sell it, and
one count of petit larceny. 	Scott contends the trial court
erred in refusing to grant his motion to merge the three charges
of larceny into a single count of larceny pursuant to the single
larceny doctrine.1
1 Scott was also convicted of one count of possession of
burglarious tools, one count of possession of cocaine, and an
additional count of credit card theft involving a different
victim. 	However, no issues have been raised on appeal as to
these convictions.

I. 	Background
On the afternoon of August 7, 1998, Hubert Hopkins observed
Scott going through Hopkins' gym locker at the Atlantic Coast
Athletic Club in Albemarle County. 	After Scott left the room,
Hopkins checked his personal property inside the locker and
determined that cash and two credit cards were missing from his
wallet. 	Hopkins found Scott and confronted him about the
incident. 	Scott then returned $95 in cash to Hopkins, but not
the credit cards. 	Hopkins notified the athletic club manager of
the incident. 	The manager also confronted Scott, and Scott then
returned Hopkins' two credit cards.
After investigating the incident, the police determined
that Scott had stolen several credit cards from other
individuals. 	Scott told police he "normally" goes to different
health clubs and takes items from gym lockers. 	He also told
police he committed the thefts in order to support his cocaine
habit. 	Scott was subsequently charged with two counts of taking
a credit card or credit card number, in violation of Code
§ 18.2-192, as well as one count of petit larceny for taking
cash in an amount less than $200.
Prior to trial, Scott filed a motion to dismiss or merge
indictments, alleging that the three indictments for "larceny"
should be merged because "[u]nder Virginia law the taking of
multiple items at the same time constitutes an indivisible
offense, that is, a single larceny." 	The Commonwealth claims
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that, in support of this motion, Scott argued only double
jeopardy concerns during the hearing on the motion and did not
raise an argument concerning the single larceny doctrine. 	The
trial court denied Scott's motion, ruling that the taking of the
credit cards under Code § 18.2-192 represented separate
statutory offenses for the taking of each card and that petit
larceny is not a lesser-included offense of taking a credit
card.
II. 	Analysis
The Commonwealth first argues that Scott's appeal is barred
by Rule 5A:18 because in the trial court, Scott only argued
double jeopardy as a basis for his motion. 	However, Scott's
written motion specifically referred to the single larceny
doctrine. 	In addition, Scott's written motion cited case law
referencing the single larceny rule. 	Thus, we find that Scott
properly preserved both the alleged error and the grounds
therefor.
Whether the larceny of multiple items at or
about the same time from the same general
location constitutes a single larceny or
multiple offenses is an issue that most
courts have addressed early in the
development of their criminal jurisprudence.
The concept is commonly referred to as the
"single larceny doctrine." 	The principles
are easily stated and understood, but
application of the doctrine becomes
problematic when applied to the infinite
variety of circumstances that can arise.
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Richardson v. Commonwealth, 25 Va. App. 491, 495, 489 S.E.2d 697,
699 (1997) (en banc) (citations omitted).
Accordingly, we have recognized that "[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." 	Acey v. Commonwealth, 29 Va. App.
240, 247, 511 S.E.2d 429, 432 (1999). 	In determining whether
this doctrine applies, we 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. 	The primary
factor to be considered is the intent of the thief . . . ." 	Id.
(citations omitted).
Nevertheless, we have only applied this doctrine to those
statutory offenses for which we can ascertain no intent by the
legislature to abrogate the theory of common law larceny. 	See
id. at 248-49, 511 S.E.2d at 432-33 (applying the single larceny
doctrine to larceny of a firearm, finding no intent on the part
of the legislature in enacting Code § 18.2-108.1(1) to abrogate
common law larceny); see also Millard v. Commonwealth, 34 Va.
App. 202, 206, 539 S.E.2d 84, 86 (2000) (applying the single
larceny doctrine to obtaining money or signature by false
pretenses, finding no manifest intent by the legislature in Code
§ 18.2-178 to abrogate common law larceny).
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Here, we have a different case. 	Scott was charged with two
counts of obtaining a credit card, with the intent to use,
transfer or sell it, in violation of Code § 18.2-192. 	As we
have recognized, "[t]he common law of England, insofar as it is
not repugnant to the principles of the Bill of Rights and
Constitution of this Commonwealth, shall continue in full force
within the same, and be the rule of decision, except as altered
by the General Assembly." 	Code § 1-10. 	Thus, "[a]lthough the
General Assembly can abrogate the common law, its intent to do
so must be plainly manifested." 	Acey, 29 Va. App. at 248, 511
S.E.2d at 432. 	We find such intent clear in the case of the
statutory offense of credit card theft.
At common law, choses in action were not the
subject of larceny. 	Bank notes, checks and
other writings and papers of value were not
the subject of larceny at common law.
However, the taking of the paper on which
they were written could be larceny. 	A
credit card is any instrument or device
. . . issued . . . by an issuer for the use
of the cardholder in obtaining money, goods,
services, or any other thing of value. 	A
credit card is a token of credit extended to
the cardholder. 	Thus, at common law only
the card itself, not the line of credit it
represented, could be the subject of
larceny. 	The same limitation applie[d]
under Code § 18.2-95.
Owolabi v. Commonwealth, 16 Va. App. 78, 80-81, 428 S.E.2d 14,
15-16 (1993) (citations omitted).
Code § 18.2-192 states that the taking of a credit card or
a credit card number will be deemed credit card theft. 	Thus,
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the legislature clearly manifested an intent to abrogate the
common law prohibition against the credit card as being properly
the subject of larceny, beyond the negligible value of the token
itself.
Scott correctly contends that Code § 18.2-192 establishes
that credit card theft will be punished as grand larceny
pursuant to Code § 18.2-95. 	However, this portion of Code
§ 18.2-95 does not convert the statute into a mere reiteration
of common law larceny. 	Indeed, as we have explained above, the
legislature, in enacting Code § 18.2-192, created a very
distinct offense, different from and in abrogation of, the
common law offense of larceny. 	Accordingly, we hold that the
single larceny doctrine does not apply to offenses charged under
this code section.
We also find that the trial court correctly determined that
the charge for petit larceny was not a lesser-included offense
of taking a credit card or credit card number pursuant to Code
§ 18.2-192.
In pertinent part, Code § 18.2-192 provides:
(1) A person shall be guilty of credit
card or credit card number theft when:
(a) He takes, obtains or withholds a
credit card or credit card number from the
person, possession, custody or control of
another without the cardholder's consent.
The taking must be with the intent to use,
sell, or transfer the card to a person other
than the issuer or the cardholder. 	Larceny
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is the wrongful taking of the goods of
another without the owner's consent and with
the intention to permanently deprive the
owner of possession of the goods. 	Code
§ 18.2-96 determines the monetary value
which constitutes petit larceny. 	A
comparison of the elements discloses that
petit larceny is not a lesser included
offense of a violation of Code § 18.2-192.
Larceny requires proof of an intent to
permanently deprive while § 18.2-192
requires only an intention to use, sell or
transfer. 	Thus, every conviction under Code
§ 18.2-192 would not necessarily result in a
conviction of petit larceny.
Darnell v. Commonwealth, 12 Va. App. 948, 954-55, 408 S.E.2d
540, 543-44 (1991) (citations omitted). 	Thus, we affirm the
judgment of the trial court.
Affirmed.
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