COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunzi ata and Senior Judge Coleman Argued at Richmond, Virginia

MARIA JANINE CHERRY MEMORANDUM OPINION * BY v. Record No. 3365-01-2 JU DGE ROSEMARIE ANNUNZIATA SEPTEMBER 30, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Cleo E. Powell, Judge William B. Bray (Perry & Bray, on brief), for appellant. Donald E. Jeff rey, III, As sistant Attorney General (Jerry W. Kilg ore, Attorney General, on brief), for appellee.
The sole issue on ap peal is whether the evidence was sufficient to prove larceny. We affirm the conviction.
I. The grand jury indicted Maria Janine Cherry fo r larceny as a third or subsequent such o ffense. See Code §§ 18.2-96 and 18.2-104. When the sufficiency of the evidence is challenged on appeal, we "'review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Ortega v. Commonwealth, 31 Va. App. 779, 786, 525 S.E.2d 623, 627 (2000) (quoting Archer v.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.- 2 - Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (additional citation omitted)). So viewed, the evidence shows that Sheila Bishop wa s working before noon at the Quicky 's Chevron gas station on Ironbrid ge Road where Cherry st opped at one of the gasoline pumps. When the computer indicated a cash purchase of gas, Bishop auth orized the transaction byactivating the pump. Cherry pumped four dollars worth of gas, went to Bishop's cash register in th e building, began "fee ling her pock ets, and [said] I don't have no money." Bishop testified that Cherry offered to leave her dr iver's license until she returned to pay but that she declined totake Cherry's driver's licens e. Instead, Bishop indicated th e automobile's licens e plate number was sufficient, and she we nt outside and record ed Cherry's license plate number. Cherry said she woul d be back withinan hour to pay for the gas. When Bishop gave the information to her employer, Bishop's employer told her that if Cherry did not return with payment in an hour, th ey would report the matter to the police. In the three and one-h alf hour period duringwhich Bishop worked, Cherry did not returnto the station to pay for the gasoline. Police Officer Talleyreceived a report from his dispatcher concerning a "gas drive off" at 11 :30 a.m. at the Chevron station. The officer "responded to the residenc e [to] which th e vehicle was registered a couple of hours lat er." After Ch erry told the officer she had money to pay for the ga s, he arrested her.- 3 - Cherry testified at trial and admitted sh e had a prior felony conviction and three misdemeanor convicti ons involv ing lying, cheating or steali ng. She explained that she believed she had money in her pants pocket when she went into the station to pay for the gas but that she "had change d out of [those] shorts and . . . didn't have the money in th e pair [she] had on." She said that she planned to return to th e store to pay fo r the gasoline, but she did not re turn directly home to r etrieve the cash she said was there and fail ed to return to the sta tion. She explained her failure to promptly return to th e station, recou nting her efforts to look for her boyf riend, who was working at a locationbetween the Brandermill and Woodlake areas , in order to get money from him. Cherry did not fi nd him at his job si te, and she continued to "dr[i]ve around lo oking for him." While continuing the search, she stopped at the Luck y's store on Genito Road because she needed more gas. She said that she tho ught the Lucky's store would cash a twenty-five dollar mo ney order that she h ad with her, although she made no attempt to determine whether the station would do so before pumping sixtee n dollars of gas. Lucky's refused to cash the money order. The clerk took Cherry's driver's license and permitted her to leave on the promise that she would return with the cash. Cherry did not return home to retriev e the cash she said was there, but rather continued her search for her boyfriend, locating him after "about 45 minutes" at another job site, whereupon she drov e with him to her resid ence, where she intended- 4 - to retrieve money fromother clothing and toask her roommate to cash the money order. She was at the re sidence for about five minutes when Officer Talley arrived and a rrested her, approximately three and one-half hours aftershe had pumped the gasoline at the Chevro n station and left wi thout paying for it. She made no effort tocontact the Chevron statio n during this period of time. Cherry testified that she intende d to return to Quicky's Chevron to pay for the gas but the offi cer's arrival at her residence prevented her from doing so. Whenasked by the court to explain why sh e had not returned tothe Chevron station within an hour, she explained she was und er "a lot of stress" and was not thinking clearly. At the conclusion ofCherry's testimon y, the Commonwealth introduced evidence of two prior convictions to sustain the felony charge. At the conclusion of the Commonwealth's evidence, the trial judge denied Cherry 's motion to strikethe evidence for insufficiency. She ru led that the "consent was condit ioned upon [Cherry] returning with in an hour" and that "at the expiration of the hour it became non-consensual." Th e trial judge also denied the motion to strike the evid ence at the concl usion of the defendant's case. In ruling on the motion to st rike, the trial judge considered the ar gument that Cherry had left the station with permission, cond itioned on her agreeme nt to return in an hour to pay for the gas, but concluded, ultima tely, that Cherry's- 5 - explanation for her fa ilure to return had not "rung tr ue to the Court," and evid enced the fraudulent inte nt with which she took the gasoline without payment. After further argument at the sentencing hearing, the trial judge again addressed the inconsistencies between Cherry's conduct and her professed intent and added the follow ing in support of he r finding that the evidence was sufficient to su stain Cherry's conviction: [B]ased on the totality of the facts of this case, . . . I found that her intent at the time was not to pay them for their gas . . . . We did discuss the conditional provision of the gas station saying, okay, you don't have the money, come back in an hour, but her follow-through . . . proved her intent was not to do that. (Emphasis added). Cherry was convicte d of petit larcen y and sentenced to serve five years, withfour years and si x months suspended. Cherry appeals the convict ion claiming the evidence is insufficient to prove her guilt be yond a reasonabl e doubt. We find no errorand affirm.
II. "In Virginia, larc eny is a common la w crime." Bryant v. Commonwealth, 248 Va . 179, 183, 445 S.E.2d667, 670 (1994). Larceny has often been 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. The animus furandi must accompany the taking, but the wrongful- 6 - taking of the property in itself imports the animus furandi ." Skeeter v. Commonwealth, 217 Va. 722, 725, 232 S.E.2d 756, 758 (1977) (citation omitted). Ch erry contends the evidence was insufficient to prove she intendedto permanentl y deprive the owner of the gas and to pr ove a trespass ory taking. The trial judge found, however, that Ch erry had no intent to pay for the gas when she obtained it at the pump. This was a finding based upon the judge's assessment of Cherry's credibility. Applying the usual standard on appeal, "the credibility of witnesses and th e weight to be accorded the ir testimony are questions for th e fact finder." Saunders v. Commonwe alth, 242 Va. 107, 113, 406 S. E.2d 39, 42 (1991). Viewed in the light most favorable to the Commonwealth, the evidence proved Cherry went to the gasoline station wi thout money, pumped thegas into her car, and then explained to the clerk she did not ha ve money to pay for the gas. AlthoughCherry promised to return in one hour to pay for the gasoline, she failed to do so and failedto go directly to her residence where she said she had left her ca sh. The trial judge was not requir ed to believe her explanations for her conduct. Indeed , the trial judge found that Cherry's conduct belied her stated inte nt to return to the station with payment for the gas, noting that Cherry's explanations had not "rung true to the Court." The court thus concluded that Cherry pumped the gas without the presen t intent to pay fo r the gasoline,- 7 - notwithstanding Cherry 's agreement to ret urn within the hour to do so. See Marable v. Commonwealth , 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998) (stating that "the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal his guilt"). Based on the credibilit y determinations made by the trial court together with Cherry's failure to return wi th payment fo r the gas as she agreed, we findthe evidence was suffic ient to justify the trial judge's conclusi on that Cherry had no intent to pay for the gas she pumped and, thus, commit ted a trespass ory taking. The Commonwealth's evid ence was competent, was not inherently incredible, and was su fficient to prove bey ond a reasonable doubt that appellant was guilty of petit larceny, third offense. Accordingly, we affi rm the conviction. Affirmed.- 8 - Benton, J., dissenting. "Larceny, a comm on law crime, is the wrongful or fraudulent taking of anothe r's property without his permission an d with the intent to depr ive the owner of that prop erty permanently." Tarpley v. Commonwealt h, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001). "[U]nder th e common law definition of that crime . . . there [must be] proo f of a trespassory taking." Commonwealth v. Bruhn, 264 Va. 597, 601, 570 S.E.2d 866, 868 (2002) (citing Maye v. Commonwealth, 213 Va. 48, 49, 189 S.E. 2d 350, 351 (1972)). Moreover, "[a] conviction of lar ceny requires pr oof beyond a reasonable doubt of th e defendant's intent to steal, which must accompany his ta king of the propert y." Tarpley, 261 Va. at 256, 542 S.E.2d at 764. The trial judge foun d that Cherry's "inte nt at the time was not to pay [Quicky's Chevron] for th e gas and [the judge said] that's why I convicted her of larceny." The evidence does not support this finding. The undis puted evidence establishes that Cherry went to the gas pump, pushed the "cash" button, and obtained the gas. She then went into the store, approached the clerk, and reached in to her pocket for money. When Cherry informed the clerk she had left her money at home, she offered the clerk her driver's license to hold as se curity for her return. The clerk declinedto take the driver's license, which provided the means of identify ing Cherry, but noted Cherry's li cense plate number. Cherry was aware the cler k wrote down he r license plate- 9 - number. This evidence is insufficient to p rove Cherry went to the store and obtain ed the gas with the inte nt to perman ently deprive the owner of the gas. Moreov er, Cherry's conduct is simply inconsistent with a fin ding that she intended to steal the gas. The trial judge' s finding is based primar ily on the view that Cherry did not returnwithin an hour to p ay for the gas. The store clerk explained in the following test imony the significance of the one hour time span: And during my shift, there was a couple of people at the time that had gotten gas, and I had noticed a white [car], which the lady had came in and said that she didn't have no money. And so I took her licensed plates, and I gave the information to my boss. And she said she'd be back in an hour to pay for the gas. And my boss says, well, if she's not back in an hour, then we have to turn her in as a drive off. Although the trial judge was entitled to disbelieve Cherry's account of the events that consumed her time after she left the Quicky Chevron and to conclude as she did that Cherry lacked "follow-through," this evidence was insufficient to prove beyond a reasonable doubt Cherry intended to steal the gas when she put it in her car. "[T]he trial [judge's] rejection of that testimony does not provide a factual basis for establishing beyond a reasonable doubt that [Cherry] intended to deprive [Quicky Chevron] of [gas] permanently." Tarpley, 261 Va. at 256-57, 542 S.E.2d at 764. The evidence proved Cherry did not drive away after pumping the gas. She went inside to the- 10 - cashier, evidencing intent to pay. Cherry's offer to leave her license was inconsistent with intent to commit larceny. Furthermore, it was Cherry who made the offer to return within the hour, after she discovered she had no money. This was not a condition placed upon her by the owner for the obtaining of the gas. When, as here, the evidence viewed in the light most favorable to the Commonwealth establishes only a suspicion or a probability of guilt, that evidence is insufficient as a matter of law to support a larceny conviction. Id. at 257, 542 S.E.2d at 764. In short, the evidence failed to prove beyond a reasonable doubt Cherry intended to steal the gas when she pumped it and clearly failed to prove a trespassory taking. Therefore, I would reverse the conviction.