Can you be convicted of credit card theft and larceny of the wallet it was in?

So, I left you last time after telling how a judge struck a credit card theft charge I was prosecuting after pointing to a case which said a defendant couldn't be prosecuted for the theft of the wallet and the cards within the wallet or it would violate double jeopardy. I also told you how, after I got home and it was too late, I eventually came up with the correct answer which should have kept the judge from striking the charge. So, let me lay it out.

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Under the common law credit cards were "choses in action" and thus had no value except for the value of the plastic of which they were made. However, the Virginia General Assembly passed a law making the theft of any credit card a felony. Subsequently, the Virginia Court of Appeals specifically excepted credit card theft from the constraints of the single larceny doctrine. This meant that if a defendant stole twenty credit cards from the same person, at the same time, the defendant could be charged with 20 felony credit card thefts. As the single larceny doctrine is inapplicable to credit card theft, the only constraints on charging credit card theft are the double jeopardy prohibitions in the Virginia and federal constitutions.

Since 1932 the test for double jeopardy has come from Blockburger v. United States. The simplest way to describe this test is as a "different elements test." Basically, if a defendant is charged with two types of crimes each type of crime must have an element that the other does not have. An example of this can be found in Hudgins v. Commonwealth, in which the Virginia Supreme Court ruled that robbery and larceny from a person can both be charged because, while they both have many of the same elements, robbery requires the use of force and larceny from a person requires the taking of something worth more than $5. The different elements test has been, and is, the prevailing double jeopardy standard.

However, for a short time in the early 1990's (1990-93) the US Supreme Court tried out a different standard. In a case called Grady v. Corbin the USSC adopted a "same conduct test." Under this test if the same act violated two laws the defendant could only be charged with one crime. However, after only three years, in Dixon v. United States the USSC reversed itself and abolished the same conduct test and returned to the different elements test.

Unfortunately, the case which I couldn't rebut in the courtroom, Darnell v. Commonwealth, 12 Va.App. 948 (1991)(not available on open web), was decided during the time that Grady was good law. In Darnell a wallet was stolen and the defendant was charged with petit larceny for the wallet and credit card theft for a credit cards in the wallet. Darnell objected to this as violative of double jeopardy. The Virginia Court of Appeals first runs through the Blockburger different elements test and concludes that the two prosecutions do not violate the different elements test. Larceny of the wallet has an "intent to permanently deprive" element and credit card theft has an "intent to use, sell or transfer" element. With the different intent elements, charging the two crimes at the same time passes the Blocburger test.

Then the appellate court turns to the Grady same conduct test. It finds that Darnell had to steal the wallet in order to get the credit cards in it. Since stealing the credit cards involved stealing the wallet the thefts involve the same conduct. Thus, they fail the same conduct test under Grady. Therefore, as long as Grady was good law it was forbidden to charge credit card theft and theft of the wallet or purse they were in.

Of course, Grady isn't good law anymore. It was only good law from 1990 until 1993. In 1993, the USSC abandoned the same conduct test and reversed Grady in Dixon v. United States. The Virginia Supreme Court specifically followed the USSC in this in Hudgins v. Commonwealth in 2005. Maybe there was a similar decision within the 12 year gap, but I couldn't find it and apparently neither could the Virginia Court of Appeals which the Virginia Supreme Court overruled.

It's not like the Virginia Court of Appeals hid the fact that the Darnell case was based upon Grady. The first paragraph ends with this sentence

We find that the prosecutions under Code § 18.2-192 are barred by Grady and, therefore, we reverse the convictions.

I just didn't know that that Grady had been overruled. Heck, I didn't even know that Grady existed.

Next time I'll know to stand up and say, "Darnell was based on Grady which was overruled by Dixon and Hudgins. Even Darnell recognized that charging credit card theft and larceny of the wallet isn't barred under the Blockburger test. And, per Scott, the single larceny doctrine does not apply to credit card theft charges."

Of course, I've never been quite so glib and after a uttering a string of cases like that I'll have to spend the next 45 minutes explaining myself. Still, at least I won't be sitting there staring uselessly at a computer screen like I was last week.