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Present:    Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Carrico, S.J.
JACK EDWARD CARTER
v.    Record No.  091895                                               OPINION BY
JUSTICE S. BERNARD GOODWYN
COMMONWEALTH OF VIRGINIA                                               June  10,  2010
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal of a conviction for grand larceny, we
consider whether asportation and assertion of ownership of
property is sufficient to prove intent to steal that property.
Background
Jack Edward Carter was indicted by a Henrico County grand
jury for stealing paint from a home improvement supply store
(the store), in violation of Code  §  18.2-95.    Carter asserted
at trial and in the Court of Appeals that the Commonwealth
failed to prove he intended to steal the paint.    At the
conclusion of a bench trial, the circuit court convicted him of
grand larceny and fixed his punishment at incarceration for a
term of three years with the execution of two years and six
months suspended.    The Court of Appeals, in a published
opinion, affirmed the judgment of the circuit court.    Carter v.
Commonwealth,  54 Va. App.  700,  709,  682 S.E.2d  77,  81  (2009).
Carter appeals.




We will apply well-established principles of appellate
review and thus, we will summarize the evidence in the light
most favorable to the Commonwealth, the prevailing party in the
circuit court.    Barnes v. Commonwealth,  279 Va.  22,  35,  688
S.E.2d  210,  217  (2010); McMillan v. Commonwealth,  277 Va.  11,
15,  671 S.E.2d  396,  397  (2009).
On August  22,  2007, Jack Edward Carter and his friend
Tracy Browning traveled by truck, with several other
individuals, to a home improvement supply store in Henrico
County.    Pursuant to a pre-determined plan, Carter entered the
store and placed four  5-gallon buckets of paint, valued at
$398.92, in a shopping cart.    Browning waited outside for a few
minutes and then followed Carter into the store.    Browning
waited for Carter by the  “returns” desk, where customers could
take items, previously purchased from the store, for a refund
of the purchase price.    Carter approached Browning and gave her
the shopping cart containing the buckets of paint.    As planned,
Browning represented that the paint had been previously
purchased from the store and requested payment for its return.
LeDawn Sawyer, an assistant store manager who was called to
approve the return, recognized Browning as someone she had been
alerted to look for.    Sawyer obtained Browning’s identification
card and contacted a loss prevention employee, who summoned the
police.
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Police officers arrived at the store and spoke with
Browning.    Browning acknowledged the details of the plan she
and Carter had made to seek a refund payment for paint that
neither she nor Carter had purchased from the store.    Browning
admitted that  “the deal was supposed to be that Mr. Carter was
supposed to go into the  [store], get some paint, bring it out
somewhere  [near] the refund desk.                                 [Browning was] to go to the
refund desk and ask for a refund on the paint.”    There was no
plan as to what she would do with the paint if the store
refused to give her a refund.
The police officers received information from Browning
regarding Carter’s location and went to arrest him.    Carter
tried to flee, but the police officers apprehended him.
At the conclusion of the Commonwealth’s evidence, Carter
moved to strike the Commonwealth’s evidence on the basis that
the Commonwealth failed to prove that he and Browning intended
to steal the paint.    The circuit court denied the motion.
Carter did not present any evidence, and renewed his motion to
strike, which the court denied.
Analysis
Carter argues that, as a matter of law, the evidence
presented by the Commonwealth was not sufficient to find him
guilty of grand larceny because the Commonwealth failed to
prove he had an intent to steal the paint.    The Commonwealth
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claims that the asportation of the paint by Carter, and the
assertion of ownership of the paint, pursuant to his plan, is
sufficient evidence to support a finding that Carter intended
to steal the paint so that it could be returned to the store
for a refund.
Carter does not dispute that there was asportation of the
paint by him, nor does he dispute that he and Browning were
working together and that each is criminally responsible for
the actions of the other.    See McMorris v. Commonwealth,  276
Va.  500,  505-06,  666 S.E.2d  348,  350-51  (2008); Taylor v.
Commonwealth,  260 Va.  683,  687-88,  537 S.E.2d  592,  594  (2000).
His sole assignment of error concerns the allegation that the
scheme he was involved in with Browning did not involve
stealing the store’s paint because, after asserting ownership
of the paint, he and Browning planned to relinquish the paint
upon receiving payment from the store, without removing the
paint from the store.    He notes there was no agreement as to
what would be done with the paint if the store did not pay the
refund.
When a defendant challenges the sufficiency of the
evidence on appeal, the reviewing court must accord the
judgment of the trial court sitting without a jury the same
weight as a jury verdict.    Commonwealth v. Taylor,  256 Va.  514,
518,  506 S.E.2d  312,  314  (1998); Saunders v. Commonwealth,  242
4




Va.  107,  113,  406 S.E.2d  39,  42  (1991); Evans v. Commonwealth,
215 Va.  609,  613,  212 S.E.2d  268,  271  (1975).    It is the
appellate court’s duty to examine the evidence that tends to
support the conviction and to uphold the conviction unless it
is plainly wrong or without evidentiary support.    Code  §  8.01-
680; Commonwealth v. Jenkins,  255 Va.  516,  520,  499 S.E.2d  263,
265  (1998); Walton v. Commonwealth,  255 Va.  422,  426,  497
S.E.2d  869,  871  (1998); Tyler v. Commonwealth,  254 Va.  162,
165-66,  487 S.E.2d  221,  223  (1997).    In making this
determination, the appellate court must examine the evidence in
the light most favorable to the Commonwealth.    Jenkins,  255 Va.
at  521,  499 S.E.2d at  265; Walton,  255 Va. at  425-26,  497
S.E.2d at  871.
In Virginia, larceny is a common law crime.    We have
defined larceny 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.’”    Skeeter v. Commonwealth,  217 Va.  722,
725,  232 S.E.2d  756,  758  (1977)  (quoting Dunlavey v.
Commonwealth,  184 Va.  521,  524,  35 S.E.2d  763,  764  (1945)); see
also Payne v. Commonwealth,  222 Va.  485,  487,  281 S.E.2d  873,
874  (1981). Stated simply, larceny requires that there be a
taking and asportation of the seized goods, coupled with an
5




intent to steal those goods.1    Britt v. Commonwealth,  276 Va.
569,  575,  667 S.E.2d  763,  766  (2008); see Bryant v.
Commonwealth,  248 Va.  179,  183,  445 S.E.2d  667,  670  (1994);
Mason v. Commonwealth,  200 Va.  253,  256,  105 S.E.2d  149,  151
(1958).                                                                   “The defendant’s intent to steal must exist at the
time the seized goods are moved.”    Britt,  276 Va. at  575,  667
S.E.2d at  766.
We have stated that  “[i]ntent is the purpose formed in a
person’s mind at the time an act is committed.”    Taylor,  256
Va. at  519,  506 S.E.2d at  314; see Guill v. Commonwealth,  255
Va.  134,  139,  495 S.E.2d  489,  492  (1998); Ridley v.
Commonwealth,  219 Va.  834,  836,  252 S.E.2d  313,  314  (1979).
“Intent may, and often must, be inferred from the facts and
circumstances of the case, including the actions of the accused
and any statements made by him.”    Stanley v. Webber,  260 Va.
90,  96,  531 S.E.2d  311,  315  (2000); Taylor,  256 Va. at  519,  506
S.E.2d at  314; see Guill,  255 Va. at  139,  495 S.E.2d at  492;
Ridley,  219 Va. at  836,  252 S.E.2d at  314.    It is undisputed
1                                                                         “For larceny there must be an intent to steal  (or, as
stated in the Latin form, animus furandi).    It is, of course,
not very helpful to say that to be guilty of stealing property
one must have an intent to steal the property.    It is more
helpful to state  (as it is sometimes put) that, for larceny,
one must intend to deprive the owner of the possession of his
property either permanently or for an unreasonable length of
time  .  .  .                                                             .”                                                       3 Wayne R. LaFave, Substantive Criminal Law
§  19.5 at  87  (2d ed.  2003).
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that at the time he picked up the paint, Carter intended to
have his accomplice assert ownership of the store’s paint
without paying the store for that paint, and to ask the store
to pay for its return.    True to their scheme, Carter’s
accomplice moved the paint, represented ownership of that paint
to the store’s employee, and requested a refund payment.
Common law larceny requires a trespassory taking.    Maye v.
Commonwealth,  213 Va.  48,  49,  189 S.E.2d  350,  351  (1972);
Overstreet v. Commonwealth,  17 Va. App.  234,  236,  435 S.E.2d
906,  907  (1993).    Carter, in essence, asserts that there was no
trespassory taking and intent to permanently deprive the store
of its paint because his scheme did not involve the paint being
at any time physically removed from the store.    At the core of
Carter’s defense is the issue of what constitutes sufficient
possession and asportation to sustain a conviction for larceny
from a self-service retail store.
A trespassory taking is a taking or removal of possession
of property from the owner with felonious intent; a violation
of an owner’s possessory right constitutes a trespassory
taking.    Richards v. Commonwealth,  54 Va.  (13 Gratt.)  803,  806
(1856); Overstreet,  17 Va. App. at  236,  435 S.E.2d at  907-08.
Because every customer in a self-service store has implied
permission to move merchandise, placed on open display,
unconcealed about the premises of the store, the trespassory
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taking and carrying away of the merchandise of another does not
usually occur at such a store when the property is moved on the
premises.    If, however, there is some conduct by the customer
which makes the customer’s possession clearly adverse to the
store, there is a trespassory taking.    Freeman v. Meijer, Inc.,
291 N.W.2d  87,  89  (Mich. Ct. App.  1980); see Jones v. State,
314 So.  2d  876,  878  (Ala. Crim. App.  1975).
A trespassory taking is most easily proven by a defendant
leaving the store without paying for merchandise.    However,
removal of the targeted property from the owner’s premises is
not required for there to be a trespassory taking, and
permanent loss by the owner is not a required element of
larceny.    Whalen v. Commonwealth,  90 Va.  544,  549,  19 S.E.  182,
183  (1894).                                                             “One may be said to have taken another’s property
by trespass though he has not removed it from the other’s
premises or from his presence.”    Wayne R. LaFave, Criminal Law
§  19.2(i), at  979  (5th ed.  2010).    If the defendant does not
leave the premises, the evidence must establish that the
defendant in some way, within the store, exercised trespassory
possession of the goods inconsistent with the owner’s rights.
See, e.g., Bryant,  248 Va. at  183-84,  445 S.E.2d at  670; Welch
v. Commonwealth,  15 Va. App.  518,  523-24,  425 S.E.2d  101,  105
(1992); see also Groomes v. United States,  155 A.2d  73,  75
(D.C.  1959); State v. Grant,  373 A.2d  847,  850  (Vt.  1977).
8




The representation of ownership of the store’s paint by
Carter’s accomplice was an exercise of possession clearly
adverse to the store and inconsistent with the store’s right to
its paint.    It is also evidence of his accomplice’s immediate
dominion and control of the paint.    The assertion of ownership
in seeking a refund was evidence of and, in fact, confirmed
that there had been a trespassory taking of the paint, and it
evidenced an intent to deprive the owner thereof permanently.
See People v. Davis,  965 P.2d  1165,  1169-70  (Cal.  1998).
The trespassory taking, evidenced in the instant case by
asserting ownership, is no different than a trespassory taking
by walking out of the store without paying for the paint.    At
the point ownership of the paint was asserted, there was
evidence that Carter and his accomplice had taken the store’s
paint just the same as if they had walked out of the store with
that paint.    Where there is evidence that an individual has
acted in a manner that is inconsistent with that of a
prospective purchaser, and has exercised immediate dominion and
control over the property, despite his continued presence
within the owner’s store, such conduct establishes sufficient
possession to constitute larceny.    Welch,  15 Va. App. at  524,
425 S.E.2d at  105; accord State v. White,  576 P.2d  138,  139
(Ariz. Ct. App.  1978); State v. Carswell,  249 S.E.2d  427,  429
(N.C.  1978); Hutchinson v. State,  427 P.2d  112,  114  (Okla.
9




Crim. App.  1967); State v. Houston,  688 S.W.2d  838,  840  (Tenn.
Crim. App.  1984).    When one wrongfully takes property of
another with intent to deprive the owner thereof, larceny is
complete, though the accused afterwards abandons it.    Slater v.
Commonwealth,  179 Va.  264,  267,  18 S.E.2d  909,  911  (1942);
Whalen,  90 Va. at  549,  19 S.E. at  183; see also Williams v.
Commonwealth,  278 Va.  633,  635-38,  685 S.E.2d  178,  179-81
(2009)  (despite the fact that the defendant ultimately returned
the victim’s cellular telephone to the victim, defendant
“committed a larceny” that was  “a continuing crime” when he
“took  [the victim’s] cell phone without permission from a
‘ledge’ where  [the victim] had left it.”).
“One who takes another’s property intending at the time he
takes it to use it temporarily and then to return it
unconditionally within a reasonable time  - and having a
substantial ability to do so  - lacks the intent to steal
required for larceny.”                                                3 Wayne R. LaFave, Substantive Criminal
Law  §  19.5(b), at  89  (2d ed.  2003).    An intent to return,
however, must be unconditional.    Id. at  90.    Thus it is no
defense to larceny that the taker intends to return the
property only if he should receive a reward for its return, or
only upon some other condition which he has no right to impose.
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Id.2    According to their scheme, Carter and his accomplice
intended to return the paint upon receipt of a payment for
returning it, a condition which they had no right to impose.
We hold that the Court of Appeals did not err in concluding
that the evidence was sufficient to support Carter’s
conviction.
Conclusion
For the foregoing reasons, the judgment of the Court of
Appeals is affirmed.
Affirmed.
JUSTICE MILLETTE, with whom JUSTICE KOONTZ joins, dissenting.
I respectfully dissent.
Although I do not disagree with the majority that under
certain circumstances, the asportation of property and an
2 See People v. Davis,  965 P.2d  1165  (Cal.  1998)
(defendant’s intent to claim ownership of certain merchandise
taken from shelf of store and to return it to the store on
condition that the store pay refund constitutes intent to
permanently deprive within meaning of larceny law); Slaughter
v. State,  38 S.E.  854  (Ga.  1901)  (defendant, a private
detective, took another’s watch, then returned it to its owner
claiming a reward; conviction of larceny affirmed); State v.
Hauptmann,  180 A.  809  (N.J.  1935)  (defendant carried away
Lindbergh baby in its nightdress with intent to return the
nightdress if Lindbergh negotiated with him for payment for the
baby’s return; conviction of murder in the commission of
larceny affirmed, for it was larceny to take the nightdress
with the intent to return it only on condition of negotiation).
To take property by trespass for the purpose of  “selling”
it to the owner is larceny.    Rollin M. Perkins & Ronald N.
Boyce, Criminal Law, Larceny  §  1, at  329  (3d ed.  1982).
11




assertion of ownership can support a finding that a person
intended to steal the property, even though the property had
not yet left the store, neither the evidence presented by the
Commonwealth nor the circuit court’s findings support that
conclusion in this case.    An assertion of ownership for the
sole purpose of extracting a fraudulent refund does not
constitute an intent to permanently deprive the owner of his or
her property when the intent of the assertion is to obtain
money or property by false pretenses.
The Commonwealth’s theory of the case was that Carter’s
intent was to obtain a cash refund from the home improvement
supply store  (the store) in exchange for paint.    In his opening
statement, the attorney for the Commonwealth stated:
The intent when they went to the  [store] together
that day was for  .  .  . Carter to go into the store
first to select paint,  .  .  . and put it in a cart and
bring it to the front of the store where Ms. Browning
was to then take custody of that and return it as if
it had been purchased.    They had a receipt on  [sic]
it was being returned for cash.
The co-defendant, Browning, testified as a witness for the
Commonwealth that, as directed by Carter, she followed Carter
into the store and waited by the return desk for him to bring
her what she was supposed to return.    Carter pushed a shopping
cart with paint up to her and she pushed the cart up to the
return desk to return the paint.
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Upon cross-examination, Browning acknowledged that the
plan was for Carter to go into the store, get some paint, and
bring it to the return desk.    Browning was to go to the return
desk and ask for a refund for the paint.    The following
exchange took place during cross-examination of Browning:
Q                                                                      The paint was never to leave the store, was it?
A                                                                      No.
                                                                       On redirect, Browning was asked whether she was going to
                                                                       take the paint if the store had denied the return.    Browning
responded:
A                                                                      No, I mean, well probably I don’t know what I would
                                                                       have done.    No, because I was told, I probably would
                                                                       have, I don’t know.
Q                                                                      You still don’t know what you were going to do?
A                                                                      No, I don’t even know at that point right then.    I
mean, I just knew what I was supposed to do in the
first place.
Q                                                                      Because the intent was to get money to  -
Although the indictment charged Carter with grand larceny
in violation of Code  §  18.2-95, alleging that Carter stole
property, namely, paint, having a value of two hundred dollars
or more, it is clear that the Commonwealth believed that
Carter’s intent was to steal money.    At the conclusion of the
evidence, the Commonwealth moved to amend the indictment to
substitute  “U.S. Currency  .  .  . of  [the store]” for  “paint” as
the property involved in the larceny, but the circuit court
13




denied the motion to amend.    When Carter moved to strike the
Commonwealth’s evidence on the ground that there was no intent
to steal the paint, the Commonwealth responded,  “I think it’s
an intent to steal money.”    However, the Commonwealth then
argued that the intent to steal the money was by means of
stealing paint and then returning paint.
The circuit court found that
the overall intent from the evidence I’ve heard so
far was  [to] take the paint, take it up and get a
false refund, get the money.    And I think they
certainly had the intent to steal when they went in
there and when you use the paint  .  .  . with the
intent to use that as a vehicle to get the money, I
think that’s sufficient.
Larceny requires an intent to deprive the owner of its
property permanently.    Tarpley v. Commonwealth,  261 Va.  251,
256,  542 S.E.2d  761,  763  (2001).    I disagree with the
majority’s statement that the essence of Carter’s argument is
that there was no trespassory taking and intent to permanently
deprive the store of its property because the paint was never
physically removed from the store.    Rather, Carter’s argument
is that he never had the intent to keep the paint, and thus
never intended to permanently deprive the owner of the paint.
Carter’s intent was to use the paint as a vehicle in his scheme
to defraud the store of the value of the paint.    According to
the evidence, the gravamen of Carter’s offense was not the
larceny of the paint, but obtaining a fraudulent refund for the
14




paint, constituting the crime of obtaining money by false
pretenses.
Under Virginia law, false pretenses and larceny are
separate offenses, and there is no general theft statute, as
there is in most states, that encompasses both crimes.    United
States v. Good,  326 F.3d  589,  592 n.5  (4th Cir.  2003).             “The
Commonwealth of Virginia has always purported to treat the
three basic theft crimes of larceny, embezzlement, and false
pretenses as separate and distinct offenses.    Virginia
maintains separate statutes for each crime.”    Id.  (quoting John
W. Bartram, Note, Pleading for Theft Consolidation in Virginia,
56 Wash. & Lee L. Rev.  249,  249  (1999)).1
The elements of obtaining money by false pretenses are:
(1) an intent to defraud;  (2) an actual fraud;  (3)
use of false pretenses for the purpose of
perpetrating the fraud; and  (4) accomplishment of the
fraud by means of the false pretenses used for the
purpose, that is, the false pretenses to some degree
must have induced the owner to part with his
property.
Riegert v. Commonwealth,  218 Va.  511,  518,  237 S.E.2d  803,  807-
08  (1977)  (quoting Bourgeois v. Commonwealth,  217 Va.  268,  272,
227 S.E.2d  714,  717  (1976)); Code  §  18.2-178.    The evidence in
1 In People v. Davis,  965 P.2d  1165,  1167  (Cal.  1998),
relied upon by the majority, the Supreme Court of California
noted that the formerly distinct offenses of larceny,
embezzlement, and obtaining property by false pretenses were
consolidated by statute in California into the single crime of
15




this case could only establish that Carter, with the aid of
Browning, was attempting to commit the crime of obtaining money
by false pretenses.    Both the Commonwealth and the circuit
court clearly understood that there was never any intent to
permanently deprive the store of the paint.    The only intent
was to fraudulently obtain the refund money by means of the
false pretense that Browning had previously purchased the paint
and was entitled to a refund.
I do not dispute the line of cases cited by the majority
that hold it is larceny when property is taken with the intent
to permanently deprive the owner, and is returned by the
wrongdoer only when a reward is received in exchange.    However,
to apply that analysis when property is merely presented for a
fraudulent refund ignores the fact that the wrongdoer’s intent
is not to obtain the property, but the cash refund.    The
property is merely the instrument of the fraud.2
In addition, there is no evidence to support a finding
that Carter intended to take the paint and return it only in
theft, and conviction of theft can be sustained if the evidence
establishes the existence of one of the offenses.
2 In many jurisdictions, when a wrongdoer asserts
ownership of an item taken from a store in a fraudulent attempt
to falsely obtain a refund, the offense is prosecuted as
obtaining property or money by false pretenses.    See Anderson
v. State,  738 So.  2d  253,  254,  256-58  (Miss. Ct. App.  1998);
Kansas City v. Fritz,  607 S.W.2d  837,  838  (Mo. Ct. App.  1980);
State v. Hauck,  209 N.W.2d  580,  583-84  (Neb.  1973); State v.
16




exchange for a refund.    The Court of Appeals erred when it
presumed that the circuit court concluded that Browning would
have removed the paint from the store if she did not obtain a
refund, see Carter v. Commonwealth,  54 Va. App.  700,  705,  682
S.E.2d  77,  80  (2009), because the evidence presented by the
Commonwealth was that there was no intent by either Carter or
Browning to ever take the paint out of the store.    Browning
testified that she did not know what she would have done if a
return was refused, because that was not the scheme, and she
and Carter had only discussed her obtaining the refund.    There
was no evidence of any intent to keep the paint, such as a need
for the paint or even the means of removing the paint from the
store.    In fact, Carter was down the street in a bar waiting
for Browning to come to him with the refund money.    The
Commonwealth never argued that Browning intended to keep the
paint and, in fact, attempted to amend the indictment to
indicate that money, instead of the paint, was the subject of
the larceny.    The Commonwealth argued that the property stolen
in the larceny was the refund money.    The circuit court never
found an intent to permanently deprive the store of the paint
because the court found that the intent was to steal money
using the paint as a vehicle to get a refund.
Ledwell,  614 S.E.2d  562,  564  (N.C. Ct. App.  2005); State v.
Ewers,  458 P.2d  708,  709  (Ore. Ct. App.  1969).
17




Finally, although proof that the accused obtained money by
false pretenses will support a conviction under an indictment
for larceny, the Commonwealth must prove all of the elements of
obtaining money by false pretenses.    Riegert,  218 Va. at  518,
237 S.E.2d at  807-08.    The Commonwealth established that Carter
had an intent to defraud by the false pretense of exchanging
the paint for a refund.    However, the fraud was never
accomplished because no money was ever obtained as a result of
the fraud.    Since Carter never obtained money as a result of
the fraud, he can only be convicted of the crime of attempted
false pretenses.    Code  §§  18.2-26,  18.2-178.
However, an accused is entitled to be clearly informed of
the charges against him and the Commonwealth cannot charge
Carter with larceny of paint and retrospectively argue that he
is guilty of larceny  (or even attempted larceny) of money.
Baker v. Commonwealth,  225 Va.  192,  194-95,  300 S.E.2d  788,  789
(1983).
For the reasons stated, I would reverse Carter’s
conviction for grand larceny.
18

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