21 May 2014

Larceny, Value, and Inchohate Offenses

In the vast majority of cases, a grand larceny in Virginia is the theft of an item worth more than $199.99. There is no doubt that the value must be proven to prove the felony (otherwise it's a petit larceny).  However, what happens if the charge is an incohate offense such as attempt to commit grand larceny or conspiracy to commit grand larceny?

Picture the following scenario: A banker has a foot tall gold penny sitting on his desk. Defendant01 and Defendant02 see the gold penny and decide to steal it.  The next day they run in the doors with a two wheel truck, shove  the penny into a box on the two wheel truck, and run back out the door. When they duck into an empty alleyway two blocks down they eagerly pull the penny out and realize that it is a giant piece of chocolate covered with golden foil. It even has a price tag on the bottom stating a retail price of $12.95.  When the police catch them five minutes later they admit that they thought it was worth thousands.

Did they attempt a grand larceny? Did they conspire to commit a grand larceny?

Of course, the most likely thing to happen here is that the Defendants would be charged with petit larceny. But still their intent was to commit a felony.

In Virginia an attempt requires a direct ineffectual act meant to be in furtherance of the intended crime. See Cuffee v. Commonwealth, 61 Va App 353 (2013).  There isn't a much more direct ineffectual act toward grand larceny than actually committing a mere petit larceny because you mistook the value of the item you stole..

In Virginia a conspiracy only requires an agreement between two or more people to commit a crime. It does not require any act in furtherance.  See Chambliss v. Commonwealth, 62 Va App 459 (2013).  The Defendants in our scenario agreed to act together to steal a foot tall, solid gold penny which would have been worth more than $200 (and the defendants clearly believed it would be worth far more).

The only case law I found near this question was an unpublished opinion which assumed - without addressing this question at all - that in an attempted grand larceny a $200 value must be proven before it moves on to rule that it wasn't. Curry v. Commonwealth, 2000 VaApp No. 0722-99-1 (U).

While I think there are strong arguments for allowing the attempt and conspiracy charges based on intent to take something worth at least $200 rather than actual value of the item taken, in my opinion better reasoning requires the actual value of the item to be proven as $200 or more.

The basic reason for this relies on an analysis of Virginia code 18.2-95, which establishes the value amount for grand larceny, and Virginia Code 18.2-23(B), which establishes the punishment for conspiring to commit grand larceny. 18.2-95 states in pertinent part:
Any person who . . . (ii) commits simple larceny . . . of goods and chattels of the value of $200 or more . . . shall be guilty of grand larceny, punishable by imprisonment in a state correctional facility for not less than one nor more than twenty years or, in the discretion of the jury or court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both.
You'll notice that there's no intent in the statute. That's because a defendant does not have to intend to steal something worth $200 in order to be convicted of grand larceny. She just has to steal something worth more than $200. The intent in larceny is the intent to deprive the owner of his chattels permanently. In other words, the general crime is larceny and the $200 amount found in 18.2-95 is an aggravating punishment element that requires no intent in and of itself.

18.2-23(B) has much the same limitations.
If any person shall conspire . . . to commit larceny . . . where the aggregate value of the goods or merchandise involved is more than $200, he is guilty of a felony punishable by confinement in a state correctional facility for not less than one year nor more than 20 years.
Note that here again the statute does not require an intent in the conspiracy to take items worth more than $200.  It does add a secondary intent element beyond that of larceny. In a conspiracy to larceny a person (1) has to intend to join with at least one other (2) with the joint intent of depriving an individual of his chattels permanently.  However, the value in the statute is not that hoped for and sought by the conspirators; it is "the aggregate value of the goods or merchandise involved." In other words, the belief that the gold penny would be worth thousands is irrelevant because the gold penny they sought did not actually exist.  Instead, the actual value of the chocolate gold penny "involved" was $12.95. Here, the general crime is conspiracy to commit grand larceny and the aggravating punishment element of $200 is further limited to items "involved" rather than aspirational.

Based on all this, I conclude that the $200 must be proven in these incohate offenses. I do find myself wondering whether attempted grand larceny can actually be charged. Conspiracy to grand larceny has its own statute, so there's no doubt that it can be charged. However, attempted grand larceny does not have a stand alone statute. This leads to a problem. Since 18.2-95 is a statute adding an aggravating punishment element the actual crime is complete without the $200 value. The defendant has no required intent to steal $200 or more. She just has a required intent to deprive an owner permanently of chattels. Therefore, it would seem that the only attempt which could be charged is that of simple larceny (which breaks down to petit larceny). The General Assembly has acknowledged this issue by putting the conspiracy to grand larceny statute in place (otherwise it would have the same problem). It has not so acted where attempted grand larceny is concerned.

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