The Judge, Motion to Strike, and Credit Card Theft

We're at the end of evidence in a jury trial where the defendant has been charged with Grand Larceny and Credit Card Theft. The defense attorney has made the motion to strike the evidence as legally insufficient to sustain the charges. We argue and I sit down thinking that I've fought off the motion. I should know better. It's always those moments when you get a little cocksure that fate, or the judge, reaches out and slaps you around a bit.

The judge asks me if the charge of credit card theft is valid if the basis of the grand larceny is the stealing of the wallet and the credit cards are in the wallet. It's a classic question which is based on double jeopardy and the single larceny doctrine (if a defendant steals from one person at a singular period of time he can only be charged with one larceny instead of one larceny for each item taken). Again, I stand up (over)confident that I've got this answer down pat. "Judge, case law states that the single larceny doctrine doesn't apply to credit card theft."

Judge: "In some cases, but I don't think that's correct when we're talking about credit cards in a wallet or purse, the theft of which has been charged as grand larceny." Suddenly my endorphins spike. The judge wouldn't have made that statement without something to back it up. I ask for a couple minutes to look it up. "Yes, Mr. Lammers, and I suggest you start by looking at Darnell at 12 Va.App. 948."

I start plunking away at my computer. I've never heard of Darnell. I find it pretty quickly and it says that if the cards are in the wallet charging a larceny for the wallet forecloses a credit card theft charge for cards int he wallet. That just rings absolutely wrong. In the ten years I've been practicing law, I've seen hundreds of people charged with credit card theft when they stole wallets or purses with credit cards in them. I look for subsequent cases which rely on or elaborate upon Darnell, but it's an orphan. There's no serious treatment of it or citation to it. In fact, I can only find two citations. The first just cites to Darnell for an element of credit card theft (in an unpublished opinion). The second cites to Darnell as establishing that petit larceny is not a lesser included offense of credit card theft. I don't know how long I plunked along on the computer, but eventually the judge cut me off and, because I hadn't found anything contrary to Darnell, struck the credit card charge.

I don't think it made a difference in the final outcome of the case, but it was a quick lesson in not getting too cocky. Of course, once I got home and put a little research into it I found the correct answer, but by then it was a little too late.

What's the correct answer? You'll have to come back on Monday and read the next post to get that answer.