Waterfall Instruction

In Virginia there's a charge of Grand Larceny with intent to Sell or Distribute (we ain't having any of that Robin Hood stuff here). It's the first part of § 18.2-108.01:

A. Any person who commits larceny of property with a value of $200 or more with the intent to sell or distribute such property is guilty of a felony punishable by confinement in a state correctional facility for not less than two years nor more than 20 years. The larceny of more than one item of the same product is prima facie evidence of intent to sell or intent to distribute for sale.

The problem is that there are several lesser included offenses within this statute including plain Grand Larceny, Petit Larceny, and Possession of Stolen Property with Intent to Sell. Of course, there is no model jury instruction which covers all this.  I had to make one of my own. When an instruction starts out with one greater charge and the possibility of conviction of it or lesser included charges it's called a "waterfall instruction."  Here's my attempt.  Enjoy!

The defendant is charged with grand larceny with the intent to sell or distribute the stolen item. If you believe from the evidence beyond a reasonable doubt that the defendant

1) Took property which belonged to John Smith; and

2) The property was taken without John Smith's consent and against her will; and

3) The defendant intended to permanently deprive John Smith of the property; and

4) The property was worth $200 or more; and

5) The defendant knowingly possessed the stolen property with the intent to sell or distribute it,

then you shall find the defendant guilty of grand larceny with the intent to sell or distribute the stolen item.

If you find from the evidence beyond a reasonable doubt that the Commonwealth has proven all the elements except the fifth, then you shall find the defendant guilty of grand larceny.

If you find from the evidence beyond a reasonable doubt that the Commonwealth has proven only the forth and fifth elements you shall find the defendant guilty of possessing stolen property with intent to sell or distribute.

If you find from the evidence beyond a reasonable doubt that the Commonwealth has proven the first three elements, but has not the forth element you shall find the defendant guilty of petit larceny.

If you find that the Commonwealth has failed to prove any of the above offenses beyond a reasonable doubt then you shall find the defendant not guilty.

I never charge this if I can help it. There are no sentencing guidelines for this offense, which makes it a pain to deal with when the defendant has 17 prior convictions and the defense attorney comes to me asking for a sentence of 3 months because the guideline recommendation of 2 years which would have been on the table for plain grand larceny aren't available. On the other hand, if I charge the defendant with grand larceny and possession with intent to sell or distribute there are two appropriate charges along with guidelines. On the other hand, this is a great charge to take to a jury with all the options that allow the jury to decide exactly what they think the defendant should be convicted of (or, of course, the jury could reject them all and find not guilty).