COURT OF APPEALS OF VIRGINIA 

Present: Judges Kelsey, Petty and Senior Judge Willis 

Argued at Chesapeake, Virginia 

KENYON E. McEACHERN 

 OPINION BY 

v. Record No. 0063-08-1 JUDGE D. ARTHUR KELSEY 

 OCTOBER 21, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

David F. Pugh, Judge 

Charles E. Haden for appellant. 

Joanne V. Frye, Assistant Attorney General (Robert F. McDonnell, 

Attorney General; Joshua M. Didlake, Assistant Attorney General, on 

brief), for appellee. 

The trial court convicted Kenyon E. McEachern of grand larceny of a vehicle in violation 

of Code § 18.2-95(ii). On appeal, McEachern argues the evidence failed to prove he intended to 

permanently deprive the victim of her vehicle. We disagree and affirm. 

I. 

 On appeal, we review the evidence in the “light most favorable” to the Commonwealth. 

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle 

requires us to “discard the evidence of the accused in conflict with that of the Commonwealth, 

and regard as true all the credible evidence favorable to the Commonwealth and all fair 

inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 

759 (1980) (emphasis and citation omitted). 

The evidence at trial established that the victim, McEachern’s pregnant girlfriend, drove 

him in her vehicle to his mother’s house in Newport News. On the way, McEachern angrily 

accused the victim of being unfaithful to him. When she attempted to make a call on her cell 
phone, McEachern snatched it from her and threw it out the car window. The victim stopped her 

vehicle and stepped out to find her cell phone. McEachern followed her, grabbed her by the hair, 

forced her back into the vehicle, and ordered her to continue driving him to his mother’s home. 

During the drive, McEachern physically assaulted the victim (smacking or pushing her in the 

head multiple times) and announced that she was “going to make [him] fucking hurt [her].” 

When they arrived at his mother’s house, McEachern “put the car in park himself and 

took the keys out of the ignition.” The victim asked to leave. McEachern said he would “beat 

[her] ass” if she did not accompany him into the house. Once inside, the victim asked 

McEachern’s mother to retrieve her car keys from McEachern so she could leave. When the 

victim said she would press criminal charges against McEachern, he choked her and pushed her 

up against a wall with enough force to displace her arm. This display of violence prompted 

McEachern’s mother and another man in the house to come to the victim’s aid. At that point, 

McEachern brandished a handgun and left the home with the victim. As they walked to the 

vehicle, McEachern said he intended to drive to the James River Bridge, kill her there, and then 

commit suicide. The victim escaped on foot when McEachern returned briefly into the home to 

retrieve something. 

Bleeding and exhausted, the victim ran to a local church and called the police. Shortly 

after the police arrived, the victim observed McEachern drive by in her vehicle. After midnight 

that evening, the victim telephoned McEachern. By this time, the police had either called 

McEachern or attempted to call him. During a tirade of “yelling” at the victim, McEachern 

demanded to know why she gave the police his cell phone number. The victim, in turn, 

demanded the return of her vehicle. McEachern said he abandoned the vehicle with the keys in it 

at a nearby gas station. The victim took a taxicab to the gas station and found her vehicle there 

early the next morning. 

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The Commonwealth proceeded to trial against McEachern on several charges including 

grand larceny of the victim’s vehicle. Specifically finding the “Commonwealth’s witnesses are 

credible,” the court rejected McEachern’s attack on the credibility of the victim’s account of the 

crime. Finding McEachern guilty, the trial court stated: “It’s my determination that the evidence 

of the Commonwealth is the evidence that the court adopts.” 

II. 

SUFFICIENCY OF THE EVIDENCE — INTENT TO PERMANENTLY DEPRIVE

On appeal, McEachern does not challenge the trial court’s finding of a trespassory taking. 

He instead contends the evidence failed to prove he intended to permanently deprive the victim 

of the vehicle.1

 That he later abandoned the vehicle at the victim’s request, McEachern argues, 

demonstrates he intended only to temporarily deprive the victim of the vehicle. He concludes 

with the assertion that the evidence “merely supported a conviction for the lesser-included 

offense [of] unauthorized use of an automobile under Va. Code § 18.2-102.” Appellant’s Br. at 

14. 

Settled principles govern our standard of review. “Sufficiency-of-the-evidence review 

involves assessment by the courts of whether the evidence adduced at trial could support any 

rational determination of guilt beyond a reasonable doubt.” United States v. Powell, 469 U.S. 

57, 67 (1984). A reviewing court does not “ask itself whether it believes that the evidence at the 

 1

 The Court granted McEachern’s petition for appeal only as to his Question Presented I: 

“Was the evidence sufficient to prove McEachern guilty of grand larceny where the 

Commonwealth failed to prove that McEachern intended to deprive [the victim] of her car 

permanently?” Petition for Appeal at 8-19. We did not grant, and thus do not now address, 

Question Presented II, which challenged the trial court’s finding that the vehicle had a value 

exceeding $200. We similarly do not decide any other larceny issue (trespassory taking, caption, 

asportation) unaddressed by any question presented in McEachern’s petition for appeal. Under 

Rule 5A:12(c), only questions “presented in the petition for appeal will be noticed by the Court 

of Appeals.” Clifford v. Commonwealth, 274 Va. 23, 25, 645 S.E.2d 295, 297 (2007); McLean 

v. Commonwealth, 30 Va. App. 322, 329, 526 S.E.2d 717, 720 (1999) (en banc). 

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trial established guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 

(1979) (emphasis in original and citation omitted). Instead, we ask only “whether, after viewing 

the evidence in the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt.” Maxwell v. 

Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson, 443 U.S. at 

319) (emphasis in original). These principles recognize that an appellate court is “not permitted 

to reweigh the evidence,” Nusbaum v. Berlin, 273 Va. 385, 408, 641 S.E.2d 494, 507 (2007), 

because appellate courts have no authority “to preside de novo over a second trial,” Haskins v. 

Commonwealth, 44 Va. App. 1, 11, 602 S.E.2d 402, 407 (2004).2

“In Virginia, larceny is a common law crime.” Bryant v. Commonwealth, 248 Va. 179, 

183, 445 S.E.2d 667, 670 (1994). An individual commits larceny by wrongfully taking the 

property of another “without his permission and with the intent to permanently deprive him of 

that property.” Stanley v. Webber, 260 Va. 90, 96, 531 S.E.2d 311, 315 (2000); see also Tarpley 

v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763-64 (2001). “In determining intent, 

‘the factfinder may consider the conduct of the person involved and all the circumstances 

revealed by the evidence.’” Welch v. Commonwealth, 15 Va. App. 518, 524, 425 S.E.2d 101, 

105 (1992) (citations omitted). “Indeed, ‘[t]he specific intent in the person’s mind may, and 

often must, be inferred from that person’s conduct and statements.’” Id. (citations omitted). To 

be sure, “there is not one case in a hundred where the felonious intent in the original taking can 

be proved by direct evidence. From the nature of the case, intent, generally, must be inferred 

 2

 This deferential standard of review “applies not only to the historical facts themselves, 

but the inferences from those facts as well.” Crowder v. Commonwealth, 41 Va. App. 658, 663 

n.2, 588 S.E.2d 384, 387 n.2 (2003). Thus, a factfinder may “draw reasonable inferences from 

basic facts to ultimate facts,” Haskins, 44 Va. App. at 10, 602 S.E.2d at 406 (citations omitted), 

unless doing so would push “into the realm of non sequitur,” Thomas v. Commonwealth, 48 

Va. App. 605, 608, 633 S.E.2d 229, 231 (2006) (citation omitted). 

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from circumstances.” Skeeter v. Commonwealth, 217 Va. 722, 726, 232 S.E.2d 756, 759 (1977) 

(citation omitted). 

We accept the first premise upon which McEachern builds his argument. “The main 

difference between common law larceny and the statutory offense of unauthorized use is that in 

the former there must be an intent to deprive the owner of his property permanently, while in the 

latter the intent is to deprive the owner of possession of his automobile temporarily and without 

any intent to steal the same. The intent with which property is taken determines the offense.” 

Overstreet v. Commonwealth, 17 Va. App. 234, 236, 435 S.E.2d 906, 907 (1993) (quoting Slater 

v. Commonwealth, 179 Va. 264, 267, 18 S.E.2d 909, 910-11 (1942)) (emphasis in original). 

Stated another way, “[t]here is no larceny where the defendant, by actual or constructive 

trespass, takes the property of another with the intent to use it temporarily and thereafter to return 

it to the owner.” 3 Charles E. Torcia, Wharton’s Criminal Law § 351, at 396 (15th ed. 1995). 

We do not accept, however, McEachern’s argument that no rational factfinder could have 

concluded that he intended to permanently deprive the victim of her automobile. 

In Virginia, absent countervailing evidence of an intention otherwise, “the wrongful 

taking of the property in itself imports the animus furandi.” Bryant, 248 Va. at 183, 445 S.E.2d 

at 670 (quoting Skeeter, 217 Va. at 725, 232 S.E.2d at 758, in turn quoting Dunlavey v. 

Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)). In other words, the very 

existence of a trespassory taking permits the inference (unless other circumstances negate it) that 

the taker intended to steal the property. Id.; see also Robinson v. Commonwealth, 190 Va. 134, 

143-44, 56 S.E.2d 367, 372 (1949); Slater v. Commonwealth, 179 Va. 264, 266-67, 18 S.E.2d 

909, 910-11 (1942); Vaughan v. Lytton, 126 Va. 671, 679-80, 101 S.E. 865, 867 (1920); 

Saunders v. Commonwealth, 18 Va. App. 825, 828, 447 S.E.2d 526, 528 (1994); Welch v. 

Commonwealth, 15 Va. App. 518, 521-22, 425 S.E.2d 101, 104 (1992). 

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The animus furandi inference has a long history in Virginia cases distinguishing car theft 

from mere unauthorized use. In Slater, 179 Va. at 264, 18 S.E.2d at 909, for example, a 

defendant took a vehicle in Virginia and abandoned it in West Virginia. Convicted of larceny, he 

argued on appeal he intended only to borrow the vehicle, not steal it, and thus should have been 

allowed a jury instruction on the lesser-included statutory offense of unauthorized use of a 

vehicle. Applying the animus furandi inference, Slater held the trespassory taking itself implied 

an intent to steal and no other circumstances demonstrated any intent to the contrary. As Slater

observed, the defendant’s 

own testimony discloses that he intended to deprive the owner of 

the car permanently, for he said that he never intended to return the 

car but intended to abandon it in Bluefield, West Virginia. When 

one wrongfully takes property of another with intent to deprive the 

owner thereof, larceny is complete, though the accused afterwards 

abandons it. Evidence of the offense of unauthorized use is 

entirely absent. That of larceny is full handed. 

Id. at 267, 18 S.E.2d at 911 (citation omitted and emphasis in original). Similarly, in Robinson, 

190 Va. at 134, 56 S.E.2d at 367, a defendant took a vehicle and later abandoned it on a public 

highway. Relying on the animus furandi inference, Robinson rejected the defendant’s argument 

on appeal that he intended only to borrow the vehicle and later return it to its owner. No 

evidence, Robinson held, suggested the defendant “intended to deprive the owner of the car 

temporarily.” Id. at 143-44, 56 S.E.2d at 372. 

Consider, too, Briley v. Commonwealth, 221 Va. 532, 273 S.E.2d 48 (1980), where the 

defendant took a man captive in his own vehicle and drove around for about twenty minutes. 

The defendant later abandoned the vehicle — after first killing the vehicle owner — and then 

stripped it of its parts. On appeal, the defendant argued that no evidence suggested he “intended 

to take [the car] permanently.” Id. at 544, 273 S.E.2d at 56. “We reject his argument out of 

hand,” id., the Virginia Supreme Court ruled. “We can conceive of no more conclusive evidence 

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of the intent to deprive an owner of his car permanently than the testimony presented in this case 

that the car was stolen contemporaneously with the murder of its owner and later abandoned and 

stripped of parts.” Id.

Finally, in Tarpley, 261 Va. at 251, 542 S.E.2d at 761, one of the few Virginia cases not 

applying the animus furandi inference, the defendant drove away in the victim’s vehicle in an 

attempt to escape a fight in which several other men assaulted the vehicle owner. The defendant 

did not act in concert with the attackers or participate as an accessory in the assault. These 

unique circumstances, Tarpley held, undermined any reasonable inference that the defendant 

intended to steal the vehicle: 

Applying the above-stated standard of review, we conclude that the 

evidence is insufficient as a matter of law to establish Tarpley’s 

larcenous intent at the time he drove Bruce’s [the victim’s] car 

away from the fight. There was no evidence that Tarpley attacked 

Bruce during the fight or that he assisted anyone who struck Bruce. 

Although the trial court was entitled to disbelieve Tarpley’s 

account of the fight, the court received no evidence that Tarpley 

actually participated in the altercation. 

Id. at 256, 542 S.E.2d at 764. 

Unlike Tarpley, McEachern directly participated in the violent circumstances surrounding 

the trespassory taking of the victim’s vehicle. This fact confirms, rather than refutes, the animus 

furandi inference. Having physically subdued his victim, predicted he would “fucking hurt” her, 

brandished a firearm to enforce his will, and taken exclusive control over her vehicle, 

McEachern announced his intent with unmistakable clarity: He told the victim he intended to 

drive her to the James River Bridge and kill her.3

 His professed plan, had it come to pass as he 

 3

 At trial, McEachern presented a very different account of the incident which, if 

believed, would lead to very different inferences. The factfinder, however, was at liberty to 

discount a criminal defendant’s “self-serving statements as little more than lying to conceal his 

guilt.” Coleman v. Commonwealth, 52 Va. App. 19, 25, 660 S.E.2d 687, 690 (2008) (citations 

and quotation marks omitted). On appeal, moreover, “when ‘faced with a record of historical 

facts that supports conflicting inferences,’ a court reviewing the sufficiency of the evidence 

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hoped, would have permanently deprived the victim of her vehicle as well as her life. See

generally Cullen v. Commonwealth, 13 Va. App. 182, 186, 409 S.E.2d 487, 489 (1991) (“The 

evidence of the murder also proved that the taking was wrongful, the car was not taken with the 

assent of the victim, and was taken with the intent to permanently deprive the owner.”); accord

Briley, 221 Va. at 544, 273 S.E.2d at 56 (noting as “conclusive evidence” the defendant’s murder 

of the vehicle owner and later abandonment of the stripped down vehicle).4

That the intended murder never occurred due to the victim’s fortuitous escape does not 

vitiate McEachern’s larcenous intent during the trespassory taking. When McEachern later 

abandoned the vehicle at a gas station, he was not returning it after a brief, unauthorized loan. 

The evidence permits an entirely different conclusion — that he was retreating from a foiled 

attempt at stealing the vehicle and murdering the victim after it became apparent to him the 

police were involved. “When one wrongfully takes property of another with intent to deprive the 

owner thereof, larceny is complete, though the accused afterwards abandons it.” Slater, 179 Va. 

at 267, 18 S.E.2d at 911 (emphasis added). While an intent to permanently deprive must be 

shown, actual “[p]ermanent loss by the owner is not a required element of larceny.” Jones v. 

Commonwealth, 3 Va. App. 295, 301, 349 S.E.2d 414, 418 (1986). So long as the animus 

furandi formed during the trespassory taking, see 3 Wharton’s Criminal Law § 350, at 395, a 

later change of mind or desertion of purpose does nothing to expiate the theft. 

 

‘must presume — even if it does not affirmatively appear in the record — that the trier of fact 

resolved any such conflicts in favor of the prosecution, and must defer to that resolution.’” 

Harper v. Commonwealth, 49 Va. App. 517, 523, 642 S.E.2d 779, 782 (2007) (citation omitted). 

“The power to segregate a witness’s testimony into the believable, partly believable, or wholly 

unbelievable is an exercise of decisional discretion intrinsic to the factfinding task and essential 

to its proper performance.” Id.

4 See also People v. Abilez, 161 P.3d 58, 86 (Cal. 2007) (making the “threshold” 

observation that “the defendant killed the car’s owner, indicating he did not intend to return the 

car to her” (quoting People v. Moon, 117 P.3d 591, 607 (Cal. 2005) (internal brackets omitted))). 

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III. 

 The evidence supports the rationality of the trial court’s finding that McEachern took the 

victim’s vehicle with the intent to permanently deprive her of it. We thus affirm McEachern’s 

conviction for grand larceny in violation of Code § 18.2-95(ii). 

 Affirmed.