COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Senior Judge Cole 

Argued at Richmond, Virginia 

HERMAN R. ATKINS, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 1322-97-2 JUDGE MARVIN F. COLE 

 JUNE 9, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY 

Robert G. O'Hara, Jr., Judge 

 Andrew E. Weaver (Traylor, Morris & Wornom, 

on brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 The appellant, Herman R. Atkins, Jr., was convicted by a 

jury of two counts of grand larceny in violation of Code 

§ 18.2-95. On appeal, he contends that (1) the taking of the 

firearm was part of the same event and impulse as the taking of 

the truck, making him guilty of only one larceny; and (2) the 

trial court erred in refusing to instruct the jury on the single 

larceny doctrine. We affirm the convictions. 

 "On appeal, we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom." Martin v. Commonwealth, 

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 

 So viewed, on the evening of November 9, 1996, Charles Clay 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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parked his 1994 Chevy truck in his driveway in Greensville 

County. He left his .357 handgun lying on top of a blanket on 

the front passenger seat. The truck was unlocked, and Clay left 

the key in the ignition. Between 10:00 p.m. and 10:30 p.m., Clay 

heard the truck start and leave the driveway. He immediately 

telephoned the police and reported the vehicle as stolen. 

 At trial, appellant testified that on November 9, 1996, he 

had been drinking and smoking crack cocaine. He went into Clay's 

yard, found the key in the ignition and drove the truck to 

Lawrenceville. He testified that he did not intend to steal the 

truck but to use the truck to get to Lawrenceville in order to 

get more cocaine. He abandoned the truck in a driveway on Route 

46. 

 Appellant testified that he did not see the gun until he 

parked the truck. He took the gun and put it "over on Grove 

Avenue." His intent was to "save it for another day to sell it 

for crack." 

 Appellant contends that the taking of the truck and the 

taking of the gun were part of one larcenous act and were the 

result of a single impulse. On that ground he contends that the 

charges of larceny of the gun and larceny of the truck should 

have been merged into a single count of grand larceny, or the 

larceny of the gun charge should have been dismissed as barred 

under the single larceny doctrine. The Commonwealth argued that, 

since appellant's intent relating to each offense was different, 
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each theft was a separate and distinct offense and not a part of 

the same impulse. We agree with the Commonwealth. 

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

697 (1997) (en banc), we stated: 

 In order for the single larceny doctrine to 

apply, the items stolen may, but do not have 

to, be part of the same bundle or parcel; it 

is sufficient if they be at the same location 

- that is on the "same table," or same room 

or "same shop," as Lord Hale first observed. 

Alexander [v. Commonwealth], 90 Va. [809] at 

810, 20 S.E. [782] at 783 [(1894)]. When the 

evidence supports a finding that the thefts 

were part of the same larcenous impulse or 

scheme and were part of a continuous act, a 

single larceny has occurred. The primary 

factor to be considered is the intent of the 

thief and the question to be asked is whether 

the thefts, although occurring successively 

within a brief time frame, were part of one 

impulse. The circumstances to be considered 

that will bear upon the issue are the 

location of the items stolen, the lapse of 

time between their taking, the general and 

specific intent of the thief, the number of 

owners, and whether intervening events 

occurred between the takings. . . . 

Id. at 497, 489 S.E.2d at 700. Multiple unlawful takings 

constitute separate larcenies if the thief acted upon a separate 

intent or impulse for each theft. See id.

 Appellant acknowledged that stealing the truck was wrong. 

He testified that he did not intend to permanently take the 

truck, but only to use the truck to drive to Lawrenceville to 

purchase cocaine. He admitted that he did not observe the gun in 

the truck until he arrived in Lawrenceville and was about to get 

out of the truck. At that point, appellant took the gun, and hid 
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it in the woods, intending to sell it at a later time to purchase 

crack cocaine. 

 The evidence was sufficient to prove that appellant's theft 

of the truck and the later theft of the gun were separate and 

distinct offenses and were not committed pursuant to one scheme, 

one intent, one impulse or one plan. The evidence constitutes 

two separate larcenies. We hold that the trial judge did not err 

by refusing to dismiss one of the charges or by refusing to merge 

the charges. The evidence is insufficient to support the single 

larceny doctrine. 

 The appellant also contends that whether the single larceny 

doctrine applied was a question of fact for the jury to decide 

and the trial judge committed reversible error when he refused to 

grant an instruction on the single larceny theory. The 

Commonwealth responds that the evidence is insufficient to 

support the granting of the instruction requested. 

 "A reviewing court's responsibility in reviewing jury 

instructions is 'to see that the law has been clearly stated and 

that the instructions cover all issues which the evidence fairly 

raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 

S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 

503, 290 S.E.2d 856, 858 (1982)). "A defendant is entitled to 

have the jury instructed only on those theories of the case that 

are supported by the evidence." Frye v. Commonwealth, 231 Va. 

370, 388, 345 S.E.2d 267, 280 (1986). More than a scintilla of 
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evidence must be present to support an instruction. Id. When 

determining whether sufficient evidence warranted a particular 

instruction, we view the evidence in the light most favorable to 

the party offering the instruction. See Foster v. Commonwealth, 

13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991). 

 Appellant entered Clay's driveway and drove Clay's truck 

away without permission, according to his own testimony, 

intending to use the truck to drive to Lawrenceville to purchase 

cocaine. He admitted he did not see the gun or notice that it 

was in the truck until he had arrived in Lawrenceville, some 

distance away, and parked the truck in a driveway of another 

person. There he saw the gun, took possession of it and hid it, 

intending to sell it at a later time to purchase more cocaine. 

Appellant never had a single plan or impulse to steal both the 

truck and the gun. He had a separate impulse to steal the truck. 

 After the passage of considerable time and distance, and after 

stopping the truck to abandon it, he discovered the gun. At this 

time, he formed the intent or impulse to steal the gun. This 

constituted a separate and distinct grand larceny. Since the 

evidence proved as a matter of law that appellant committed two 

separate larcenies, we find that the trial judge did not err in 

refusing to grant an instruction based upon the single larceny 

doctrine. 

 For the reasons stated, we affirm both convictions of grand 

larceny. 
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 Affirmed.