COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Bray 

Argued at Richmond, Virginia 

JOHN RAY MOSS 

 OPINION BY 

v. Record No. 2341-97-2 JUDGE RICHARD S. BRAY 

 JANUARY 19, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Lee A. Harris, Jr., Judge 

 John W. Parsons (Law Office of Wood & 

Wood, P.C., on brief), for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 John Ray Moss (defendant) was convicted in a bench trial of 

possession of certain tools, specifically, stolen keys, "with 

intent to commit burglary, robbery or larceny," in violation of 

Code § 18.2-94. On appeal, defendant challenges the sufficiency 

of the evidence to prove the offense. Finding no error, we 

affirm the conviction. 

 When the sufficiency of the evidence is challenged on 

appeal, we view the record "in the light most favorable to the 

Commonwealth and give it all reasonable inferences fairly 

deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349, 

352, 218 S.E.2d 534, 537 (1975). The conviction will be affirmed 

unless "plainly wrong or without evidence to support it." Id.; 

see Code § 8.01-680. 

 Defendant was employed by Nickel Vending Company (Nickel), a 
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business which operated "drink and snack machines" throughout the 

Richmond area. Company owner Greg Nuckols suspected that money 

was being stolen from Nickel's machines and contacted Henrico 

County Police for assistance. During the ensuing investigation, 

defendant, a former employee of Nickel, was questioned by police 

and admitted taking "the machine keys off a desk" at Nickel, 

later using them "to go in . . . drink machines" to steal money. 

 Nuckols testified that the "key ring" stolen by defendant 

held "three or four keys" that opened "all the machines [he] 

had," including a single "master key" which unlocked "about two 

hundred machines." Similar keys were provided to Nickel 

employees on "individual routes" to permit access to the machines 

for restocking and collection of money from prior sales. 

 Code § 18.2-94 makes it unlawful for 

 any person [to] have in his possession any 

tools, implements, or outfit, with intent to 

commit burglary, robbery, or larceny . . . . 

 The possession of such burglarious tools, 

implements, or outfit by any person other 

than a licensed dealer, shall be prima facie 

evidence of an intent to commit burglary, 

robbery, or larceny. 

Thus, the mere possession of "any tools, implements, or outfit" 

is not prohibited by the statute. Such articles "may be, and 

usually are, designed and manufactured for lawful purposes." 

Burnette v. Commonwealth, 194 Va. 785, 790, 75 S.E.2d 482, 486 

(1953). The gravamen of the offense arises from the possessor's 

"intent to use" these "common, ordinary" objects for a criminal 
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purpose specified by statute, burglary, robbery or larceny.1

 Id.

 By including the second sentence in Code § 18.2-94, the 

legislature recognized the "natural and rational evidentiary 

relation[ship]," id. at 790, 75 S.E.2d at 485, between the 

proscribed intent and possession of "burglarious tools, 

implements, or outfit" and "adopt[ed] a rule of evidence making 

possession . . . prima facie evidence" of such intent. Id. at 

789, 75 S.E.2d at 485 (referring to former Code § 18-159). This 

presumption, however, does not attach to all "tools, implements, 

or outfit[s]" embraced by the statute, but only to such offending 

articles innately burglarious in character, those "commonly used 

by burglars in house breaking and safe cracking," id. at 792, 75 

S.E.2d at 487, particularly "suitable and appropriate to 

accomplish the destruction of any ordinary hindrance of access to 

any building, . . . vault or safe." Id. at 790, 75 S.E.2d at 

486.2 Thus, to convict an accused for possession of "any tools, 

implements, or outfit" not inherently burglarious, like the 

subject keys, the Commonwealth must establish the requisite 

intent without benefit of the statutory presumption. 

 

 1Violations of Code § 18.2-94 are sometimes referenced 

generally as "possession of burglary tools." However, the 

statute criminalizes possession of "tools, implements, or outfit" 

with the intent to commit any one of three offenses, burglary, 

robbery or larceny. Code § 18.2-94. 

 2

Use of the "descriptive and relative" word "such" preceding 

"burglarious" in creating the presumption was an "obviously 

inadvertent" legislative oversight which occurred during an 

amendment of the statute and must be "ignored or deleted." 

Burnette, 194 Va. at 788, 75 S.E.2d at 484. 
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 Here, defendant argues that the Commonwealth's evidence was 

insufficient to prove that the stolen keys were both 

"burglarious" and "tools or implements" contemplated by the 

statute.3

 In support of his first contention, defendant reasons 

that the offending keys "open[ed] . . . vending machines[,] . . . 

clearly . . . not subject to being burglarized" and, therefore, 

not "burglarious." To place the keys beyond the reach of Code 

§ 18.2-94, defendant relies upon a dictionary definition of tool, 

"something (as an instrument or apparatus) used in performing an 

operation or necessary in the practice of a vocation or 

profession," Webster's Ninth New Collegiate Dictionary 1243 

(1985), and of implement, "things as are used or employed for a 

trade, or furniture of a house. Particularly applied to tools, 

utensils, instruments of labor; as the implements of trade or of 

farming." Black's Law Dictionary 754 (deluxe 6th ed. 1990). 

 Defendant's arguments, however, misconstrue both the statute 

and the evidence. Code § 18.2-94 requires proof that the 

offending tools, implements or outfit were intrinsically 

"burglarious" only when the Commonwealth relies upon the 

statutory presumption to establish the requisite criminal intent. 

 Here, unaided by the presumption and guided by the dictionary 

definition cited by defendant, we find that the vending machine 

keys were tools, "something (as an instrument or apparatus) . . . 

 

 3An offending "outfit" is not in issue. 
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necessary in the practice of a vocation."4

 Manifestly, keys to 

unlock Nickel's vending machines were indispensable to the 

business.5

 Defendant admitted that he wrongfully gained possession of 

the keys and thereafter employed them to open several vending 

machines and steal coins. Under such circumstances, he clearly 

possessed and used the keys, tools embraced by Code § 18.2-94, 

with an intent to commit larceny, a violation of the statute. 

 Accordingly, we affirm the conviction. 

 Affirmed.

 

 4"Generally, the words and phrases used in a statute should 

be given their ordinary and usually accepted meaning unless a 

different intention is fairly manifest." Woolfolk v. 

Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530, 534 (1994) 

(citation omitted). 

 5

We decline to decide if the keys were also implements.