COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Bray and 

 Senior Judge Overton∗

Argued at Norfolk, Virginia 

CHARLES RICHARD ACEY 

 OPINION BY 

v. Record No. 2618-97-1 JUDGE NELSON T. OVERTON 

 MARCH 9, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG 

AND COUNTY OF JAMES CITY 

Samuel Taylor Powell, III, Judge 

 Dwight G. Rudd (George U. Brooks, III; Wood & 

Brooks, on brief), for appellant. 

 Kathleen B. Martin, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 ∗

Judge Overton participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

January 31, 1999 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401, recodifying Code 

§ 17-116.01:1. 

 Charles Richard Acey (defendant) appeals his multiple 

convictions for larceny of a firearm, in violation of Code 

§ 18.2-108.1, and the knowing and intentional possession of a 

firearm by a convicted felon, in violation of Code § 18.2-308.2. 

He contends: (1) the evidence was insufficient to prove he 

intended to steal the firearms; (2) the taking of three firearms 

in the circumstances of this case should result in only one 

conviction for larceny instead of three; and (3) the possession 

of three weapons in the circumstances of this case should result 

in only one conviction for possession instead of three. We hold 
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that the evidence was sufficient to prove the requisite intent, 

but only a single conviction for larceny and a single conviction 

for possession of a firearm were warranted. Thus, we reverse in 

part and affirm in part. 

 Facts 

 "An appellate court must discard all evidence of the accused 

that conflicts with that of the Commonwealth and regard as true 

all credible evidence favorable to the Commonwealth and all fair 

inferences reasonably deducible therefrom." Lea v. Commonwealth, 

16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993). So viewed, the 

record established that on the afternoon of June 27, 1996, 

defendant left work, bought a package of beer and drank several 

cans. He proceeded to a local restaurant where he met a friend, 

Roger Viall, and both men became intoxicated. After visiting 

another eatery, Viall drove them to his home in his car. 

 Officer Foster of the James City County Police Department 

saw Viall driving erratically and stopped him as he entered his 

driveway. Officer Foster arrested Viall for driving while under 

the influence of alcohol. Just prior to the arrest, Viall gave 

defendant the keys to his home and car. Viall testified that he 

told defendant to go inside the house. Defendant, however, 

testified that Viall told him to "get rid of the guns or lose 

them." Viall kept a collection of firearms in his house, 

including automatic weapons, which defendant suspected were 

illegally possessed. Defendant believed Viall wanted him to 

dispose of the guns to prevent their discovery by police. 
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 Defendant entered the house and drank more beer. He then 

went to Viall's bedroom and took a shotgun from the closet, a 

handgun from the dresser and a handgun from a holster hanging on 

the bed. Defendant saw a crate full of weapons located in the 

closet but did not touch them. 

 While defendant was so engaged within the house, Officer 

Foster transported Viall to the police station. After they 

departed, defendant placed the weapons in Viall's car and drove 

to his own home in Lanexa. Upon arrival, defendant telephoned 

the New Kent County Sheriff's office and told the dispatcher that 

he had some guns and felt suicidal. He also called several 

friends and informed them he was armed. Defendant re-entered 

Viall's car, which still contained the guns, and drove toward his 

girlfriend's house. A state trooper stopped defendant on the 

highway and an altercation occurred that led to defendant's 

arrest. 

 The trial court found defendant guilty of three counts of 

larceny of a firearm; one for each firearm. Similarly, the trial 

court found defendant guilty of possession of a firearm by a 

felon and returned three additional convictions. The trial court 

sentenced defendant to two years in prison, suspended, for each 

larceny conviction and five years in prison for each possession 

conviction, with the sentences for two of the three possession 

convictions suspended. Defendant's appeal followed. 
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Sufficiency of the Evidence 

 We hold that the trial court did not err by finding the 

evidence sufficient to prove defendant intended to commit larceny 

of a firearm. Code § 18.2-108.1(1) prohibits "simple larceny of 

a firearm not from the person."1 Because larceny is not defined 

by statute, we look to the common-law to establish the elements 

of the offense. "Larceny 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." 

Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444 

(1987) (citing Dunlavey v. Commonwealth, 184 Va. 521, 524, 35 

S.E.2d 763, 764 (1945)). "Intent is the purpose formed in a 

person's mind which may, and often must, be inferred from the 

facts and circumstances in a particular case." Ridley v. 

Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). 

Defendant asserts that the circumstances do not support the 

inference that he intended to permanently deprive Viall of his 

guns when he took them. Upon a review of the evidence, we 

disagree. 

 Defendant claims that Viall told him to "get rid of the 

guns" as he passed his keys to defendant, yet neither the 

arresting officer nor Viall himself remembers this statement. 

Defendant further claims he took the three firearms in order to 

 

 1

The language under which defendant was convicted was deleted 

from Code § 18.2-108.1(1) and added to Code § 18.2-95(iii) in 

1998.
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prevent their discovery by the police. Yet he left behind a 

crate full of weapons in the house. If his true intent was to 

protect Viall by disposing of the weapons, this purpose was not 

served by taking only a few. When defendant was asked why he 

only took three weapons, leaving the balance behind, he 

responded, "Not my problem." These facts support the conclusion 

that defendant's intent was felonious. 

 The fact that defendant later informed the police that he 

possessed the weapons does not relieve him of culpability. 

Intent is gauged at the moment the crime is complete, not at some 

later time when feelings of remorse or fear lead the perpetrator 

to confess his wrongdoing. See Welch v. Commonwealth, 15 Va. 

App. 518, 524 n.4, 425 S.E.2d 101, 106 n.4 (1992) ("'When one 

wrongfully takes property of another with intent to deprive the 

owner thereof, larceny is complete, though the accused afterwards 

abandons it.'" (quoting Slater v. Commonwealth, 179 Va. 264, 267, 

18 S.E.2d 909, 911 (1942))). In these circumstances, the trial 

court was entitled to infer defendant maintained the requisite 

intent when he took the weapons. Because that finding is 

supported by the evidence, we affirm it. 

Single Larceny Doctrine 

 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." West v. Commonwealth, 

125 Va. 747, 754, 99 S.E. 654, 656 (1919). We must consider the 

following factors when deciding whether the single larceny 
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doctrine applies: (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. 

See Richardson v. Commonwealth, 25 Va. App. 491, 497, 489 S.E.2d 

697, 700 (1997). "The primary factor to be considered is the 

intent of the thief . . . ." See id. 

 We hold that defendant's actions fall within the scope of 

the single larceny doctrine. The weapons were located within a 

few feet of each other. There was no appreciable lapse of time 

between the takings, only time enough for defendant to step from 

the closet, to the dresser and then to the headboard of the bed. 

Defendant's intent, as we have decided, was to steal the weapons, 

but there is no indication he formed this intent separately for 

each item. Rather, his actions show he was motivated by one 

compulsion to steal. A single person owned all three guns, and 

the record does not reveal that any intervening events took place 

between the takings. This case presents an archetypal example of 

the circumstances underlying the single larceny doctrine. 

 The Commonwealth argues that larcenies under Code 

§ 18.2-108.1(1) should be exempt from application of the single 

larceny doctrine. The Commonwealth asserts that the General 

Assembly distinguished the crime of larceny of a firearm from 

common-law larceny and thus, it would be improper to apply the 

common-law doctrine to a prosecution arising under Code 
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§ 18.2-108.1(1). We find the Commonwealth's argument 

unpersuasive. 

 "The 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. "Although the General Assembly can 

abrogate the common law, its intent to do so must be plainly 

manifested." Wackwitz v. Roy, 244 Va. 60, 65, 418 S.E.2d 861, 

864 (1992) (citations omitted). An examination of Code 

§ 18.2-108.1(1) reveals no such intent.2 The statute did nothing 

more than make the punishment for larceny of a firearm more 

severe than that for petit larcenies in general. See Code 

§ 18.2-96. The definition of larceny remains unaffected, as it 

is in other provisions of Chapter 18.2 addressing larceny. The 

Commonwealth has cited no case, nor can we find one, which treats 

larceny of a firearm as anything other than common-law larceny. 

Indeed, the recent inclusion of the offense with other larcenies 

under Code § 18.2-95 militates against that conclusion. We hold 

 

 2At the time defendant was convicted, Code § 18.2-108.1, read: 

 Notwithstanding the provisions of Code § 18.2-96 or 

§ 18.2-108: 

 1. Any person who commits simple larceny of 

a firearm not from the person shall be guilty 

of a Class 6 felony. 

 2. Any person who buys or receives a 

firearm from another person or aids in 

concealing a firearm, knowing that the firearm 

was stolen, shall be guilty of a Class 6 

felony and may be proceeded against although 
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that the single larceny doctrine may be applied to larceny of a 

firearm. Accordingly, we affirm one conviction for larceny of a 

firearm and reverse and dismiss the remaining larceny 

convictions. 

Single Possession Doctrine 

 Defendant lastly asserts the trial court erred by ruling 

that possession by a convicted felon of two or more firearms at 

the same time and place constitutes multiple violations of Code 

§ 18.2-308.2. He asserts that Code § 18.2-308.2 should be 

interpreted to provide for only one conviction in the 

circumstances of the instant case. We agree. 

 "When considering multiple punishments for a single 

transaction, the controlling factor is legislative intent." 

Kelsoe v. Commonwealth, 226 Va. 197, 199, 308 S.E.2d 104, 104 

(1983) (citing Missouri v. Hunter, 459 U.S. 359 (1983); 

Cartwright v. Commonwealth, 223 Va. 368, 288 S.E.2d 491 (1982)). 

The language of the statute provides little indication of the 

General Assembly's intent. The statute makes it unlawful for 

"any person who has been convicted of a felony . . . to knowingly 

and intentionally possess or transport any firearm."3 We hold 

______________ the principal offender is not convicted. 3

The full text of Code § 18.2-308.2(A) reads: 

It shall be unlawful for (i) any person who 

has been convicted of a felony or (ii) any 

person under the age of twenty-nine who was 

found guilty as a juvenile fourteen years of 

age or older at the time of the offense of a 

delinquent act which would be a felony if 

committed by an adult, whether such 
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that the word "any" preceding the object of the offense, 

"firearm," creates an ambiguity. While no appellate court of the 

Commonwealth has addressed this issue, many other jurisdictions 

have. All are in agreement that "it is impossible to decipher 

whether the word 'any' is intended to include the possession of a 

firearm or ammunition as a singular activity or as a 'plural 

activity.'" State v. Auwae, 968 P.2d 1070, 1079 (1998). See 

also United States v. Rosenbarger, 536 F.2d 715, 721 (6th Cir. 

1976); Hill v. State, 711 So.2d 1221, 1223 (1998). Where such an 

ambiguity exists and no legislative intent is apparent, we must 

look to the "gravamen of the offense" and establish the unit of 

prosecution by which the state may assess punishment. See Shears 

v. Commonwealth, 23 Va. App. 394, 401, 477 S.E.2d 309, 312 

(1996). 

 We took up the first of these issues in Jones v. 

Commonwealth, 16 Va. App. 354, 429 S.E.2d 615 (1993), aff'd en 

banc, 17 Va. App. 233, 436 S.E.2d 192 (1993). In Jones, we were 

asked whether a BB projection gun was a "firearm" for purposes of 

______________ conviction or adjudication occurred under the 

laws of this Commonwealth, or any other 

state, the District of Columbia, the United 

States or any territory thereof, to knowingly 

and intentionally possess or transport any 

firearm or to knowingly and intentionally 

carry about his person, hidden from common 

observation, any weapon described in 

§ 18.2-308 A. A violation of this section 

shall be punishable as a Class 6 felony. Any 

firearm or any concealed weapon possessed, 

transported or carried in violation of this 

section shall be forfeited to the 
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Code § 18.2-308.2. In order to dispose of the question, we were 

required to examine the purpose and policy that supported the 

criminalization of this possession offense. We held that "[t]he 

statute does not seek to protect the public from fear of harm 

caused by the display of weapons; rather, it is concerned with 

preventing a person, who is known to have committed a serious 

crime in the past, from becoming dangerously armed, regardless of 

whether that person uses, displays, or conceals the firearm." 

Id. at 358, 429 S.E.2d at 617. It is the "real threat of harm" 

that an armed felon might wreak which justified enactment of Code 

§ 18.2-308.2. Id. at 357, 429 S.E.2d at 616. See also Mayhew v. 

Commonwealth, 20 Va. App. 484, 491, 458 S.E.2d 305, 308 (1995) 

("possession of firearms by felons presents a high risk of harm 

to others"). 

 If the possession of a firearm by a felon is, of itself, the 

dangerous act, the number of weapons with which a felon is armed 

becomes irrelevant. Whether the felon bears one or one hundred 

firearms, the felon is "dangerously armed." The critical 

distinction would then lie in the dangerousness of the weapon 

possessed, which underpinned our decision in Jones. 

 Upon consideration of the purposes of Code § 18.2-308.2 and 

being mindful that "penal statutes must be strictly construed 

against the Commonwealth and applied only in those cases clearly 

falling within the language of the statute," Branch v. 

______________ Commonwealth and disposed of as provided in 

§ 18.2-310. 
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Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992), 

we hold that when defendant possessed the firearms, he committed 

a single offense under Code § 18.2-308.2, not three. In so 

holding, we follow "[t]he general rule . . . that when a 

convicted felon acquires two or more firearms in one transaction 

and stores and possesses them together, he commits only one 

offense." United State v. Mullins, 698 F.2d 686, 687 (4th Cir. 

1983). See also Rosenbarger, 536 F.2d at 721; United States v. 

Kinsley, 518 F.2d 665 (8th Cir. 1975). When defendant seized the 

three firearms at issue he became dangerous, perhaps inordinately 

so, but we cannot say the purposes of Code § 18.2-308.2 are 

better served by three punishments rather than one. 

 In summary, we hold that the evidence was sufficient to 

support defendant's conviction for larceny of a firearm but the 

trial court erred by thrice convicting defendant of larceny of a 

firearm and possession of a firearm by a felon. Accordingly, we 

affirm one conviction of larceny of a firearm and one conviction 

of possession of a firearm by a felon and reverse and dismiss the 

remaining convictions. We remand the affirmed convictions to the 

trial court for re-sentencing in accordance with the decision of 

this panel. 

 Affirmed in part, reversed in 

part, dismissed in part and 

remanded.