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On October 1, 2000, Hudgins pushed an eleven-year-old boy (the victim) from his bicycle and took the bicycle from him.
On February 28, 2001, the grand jury returned an indictment charging that, “On or about Sunday, October 1, 2000,” Hudgins “did rob the victim of U.S. Currency or other personal property, in violation of counsel Code § 18.2-58.” The value of the property taken was not alleged in the indictment. In a bench trial on March 16, 2001, Hudgins was tried on the robbery indictment and acquitted of robbery. The record of the present trial reflects that before acquitting Hudgins of robbery, the trial court had indicated its belief that the evidence was sufficient to support a conviction for larceny from the person, but that it could not convict Hudgins of that offense because larceny from the person was not a lesser-included offense of robbery. See Graves, 21 Va. App. at 166, 462 S.E. 2d at 904 (holding that grand larceny from the person was not a lesser offense included within the robbery specification of the indictment).
The record does not reflect whether the Commonwealth asked the trial court to find Hudgins guilty of larceny of the bicycle or whether, in reliance on our holding in Graves, the trial court concluded the Commonwealth could seek a subsequent indictment for grand larceny from the person. Whatever the Commonwealth’s intention, it does not impact our decision of whether the acquittal of robbery at the first trial necessarily acted as an acquittal of the larceny of the bicycle.
Hudgins moved to dismiss the indictment on grounds of former jeopardy because of his prior acquittal of robbery based on the same facts. In a memorandum in support of that motion, he conceded that this Court held in Graves, under an indictment charging robbery, that it was impermissible to instruct the jury that it could convict the accused of the offense of grand larceny from the person. Hudgins argued that in obtaining the second indictment, the Commonwealth impermissibly relied on the same theft from the same person as the basis for the subsequent indictment that had been the basis of the first indictment on which he was acquitted. The Commonwealth conceded in the trial court that, “the ‘same conduct’ by Hudgins resulted in the two indictments, one for Robbery of which he was acquitted, and one for Grand Larceny from the Person,” of which he was convicted.
After hearing evidence, the trial court convicted Hudgins of grand larceny from the person, and he noted this appeal.
On appeal, Hudgins contends the trial court erroneously ruled that his prosecution and conviction for grand larceny from the person, after his previous acquittal for robbery arising out of the same theft, did not violate double jeopardy principles. He argues that the offense of larceny from the person, the offense for which he was convicted, is a lesser-included offense of robbery, the offense for which he was acquitted, and that the subsequent prosecution for larceny from the person violated his protections against double jeopardy.
The double jeopardy protections of the counsel and United States Constitutions provide that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” Commonwealth v. Washington, 263 Va. 298, 304, 559 S.E. 2d 636, 638 (2002); see U.S. Const. amend V; Va. Const. art. I § 8. These protections prevent prosecution under successive indictments “when (1) the two offenses involved are identical, (2) the former offense is lesser-included in the subsequent offense; and (3) the subsequent offense is lesser-included in the former offense.” Martin v. Commonwealth, 221 Va. 720, 722, 273 S.E. 2d 778, 780 (1981) (citing Roderick Cecil Jones v. Commonwealth, 218 Va. 757, 759, 240 S.E. 2d 658, 660 (1978)); see Coleman v. Commonwealth, 261 Va. 196, 199, 539 S.E. 2d 732, 733-34 (2001). Likewise, the double jeopardy protections prevent multiple punishments for the same offense in a single trial. Jordan v. Commonwealth, 2 Va. App. 590, 347 S.E. 2d 152, 3 Va. Law Rep. 132 (1986).
“It is well established that the Double Jeopardy Clause forbids the retrial of a defendant who has been acquitted of the crime charged.” Bullington v. Missouri, 451 U.S. 430, 437, 68 L. Ed. 2d 270, 101 S. Ct. 1852 (1981).
An acquittal is accorded special weight. The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal, for the public interest in the finality of judgments is so strong that an acquitted defendant may not be retried even though the acquittal was based upon an egregiously erroneous foundation. If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair. The law attaches particular significance to an acquittal. United States v. DiFrancesco, 449 U.S. 117, 129, 66 L. Ed. 2d 328, 101 S. Ct. 426 (1980) (citations omitted). Put simply, “the Fifth Amendment guarantee against double jeopardy …surely protects a man who has been acquitted from having to ‘run the gantlet’ a second time.” Ashe v. Swenson, 397 U.S. 436, 445-46, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970) (citation omitted).
In Graves, which did not involve a double jeopardy challenge, this Court held that grand larceny from the person was not a lesser-included offense of robbery, at least under the specific language of the robbery indictment in that case. Graves, 21 Va. App. at 167, 462 S.E. 2d at 905. This Court determined that because robbery and grand larceny from the person each had elements of proof that the other did not, grand larceny from the person could not be a lesser-included offense of robbery. Id. at 164, 462 S.E. 2d at 903. The Court concluded, however, that petit larceny is a lesser-included offense of robbery. Id. at 167, 462 S.E. 2d at 905.
When Hudgins was acquitted of the robbery in which the bicycle was taken, he was necessarily acquitted of petit larceny of the same bicycle. Brown v. Ohio, 432 U.S. 161, 168, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977); Myers v. Commonwealth, 148 Va. 725, 729-30, 138 S.E. 483, 484 (1927). The Commonwealth could not later, consistent with double jeopardy protections, prosecute him for larceny, whether grand or petit, of the same bicycle after he was acquitted of the petit larceny of the bicycle in the first trial. To hold otherwise would suggest that Hudgins could not be convicted of petit larceny, but could be convicted of the greater offense of grand larceny of the same bicycle.
The Commonwealth urges that our holding in Graves compels us to conclude that robbery and grand larceny from the person are separate offenses under the “same elements” test and that the acquittal of Hudgins of robbery is not a bar to his subsequent prosecution of grand larceny from the person.
counsel’s jurisprudence is deeply rooted in the ancient precedents, procedures, and practices of the English system of justice. A substantial portion of “the common law of England” and the “writs, remedial and judicial, given by any statute or act of Parliament, made in aid of the common law” has been legislatively incorporated in the law of this Commonwealth. Code §§ 1-10 and -11. Oehl v. Oehl, 221 Va. 618, 623, 272 S.E. 2d 441, 444 (1980). As in its codification of robbery, the General Assembly did not alter the common law definition of larceny. Darnell v. Commonwealth, 12 Va. App. 948, 957, 408 S.E. 2d 540, 545, 8 Va. Law Rep. 318 (1991) (citing Smith v. Cox, 435 F.2d 453 (4th Cir. 1970) (“Larceny is a common law crime, although it is regulated by statute.”)). While the General Assembly has not altered the common law elements of robbery and larceny, it has specified in statutory form the punishments for those crimes. The statutory provisions enacted by the General Assembly “will not be held to change the common law unless the legislative intent to do so is plainly manifested.” Herndon v. St. Mary’s Hosp., Inc., 266 Va. 472, 476, 587 S.E. 2d 567, 569 (2003); see Linhart v. Lawson, 261 Va. 30, 35, 540 S.E. 2d 875, 877 (2001); Boyd v. Commonwealth, 236 Va. 346, 349, 374 S.E. 2d 301, 302, 5 Va. Law Rep. 956 (1988); Acey v. Commonwealth, 29 Va. App. 240, 248, 511 S.E. 2d 429, 432 (1999). A statutory change to the common law will be recognized only as is expressly stated in the words of the statute or as is necessarily implied by its language. Herndon, 266 Va. at 476, 587 S.E. 2d at 569 (citing Mitchem v. Counts, 259 Va. 179, 186, 523 S.E. 2d 246, 250 (2000); Boyd, 236 Va. at 349, 374 S.E. 2d at 302).
As in robbery, larceny from the person involves the taking of personal property from the possession or presence of another. In addition, Code §§ 18.2-95(i) and 18.2-96(1) do not separately define larceny from the person, but provide only that larceny from the person of $ 5 or more shall be punishable as grand larceny and that larceny from the person of less than $ 5 shall be punishable as petit larceny. It is the theft of the property that is the core of the crime, with the degree of the potential punishment being established by proof of the value of the property taken. The difference between robbery and larceny from the person is that robbery must involve a taking accompanied by, or accomplished through, the use of force, violence, or intimidation.
Any person who (1) Commits larceny from the person of another of money or other thing of value of less than $ 5, or (2) Commits simple larceny not from the person of another of goods and chattels of the value of less than $ 200, except as provided in subdivision (iii) of § 18.2-95, shall be deemed guilty of petit larceny, which shall be punishable as a Class 1 misdemeanor.
Accordingly, larceny from the person, whether punishable as grand larceny under Code § 18.2-95(i) or petit larceny under Code § 18.2-96(1), includes all of the elements of robbery, except the taking by force or violence, under the common law definition.
Following the common law tradition, counsel courts have considered larceny from the person to be a lesser-included offense of robbery regardless of the value of the property stolen. Saunders v. Commonwealth, 18 Va. App. 825, 827, 447 S.E. 2d 526, 528, 11 Va. Law Rep. 138 (1994) (affirming larceny from the person conviction where at trial “the robbery charge was reduced to the lesser included offense of larceny from the person of property valued in excess of five dollars, Code § 18.2-95”); Broady v. Commonwealth, 16 Va. App. 281, 291, 429 S.E. 2d 468, 474, 9 Va. Law Rep. 1294 (1993) (holding that, because reasonable minds could not disagree that the crime was one of robbery, trial court did not err in refusing to instruct on a lesser-included offense of larceny from the person).
Here, the Commonwealth argues that grand larceny from the person is not a lesser-included offense of robbery, thus permitting the second indictment. See Graves, 21 Va. App. at 163, 462 S.E. 2d at 903. In Graves, the trial judge “struck the evidence as to the robbery …indictment, and ruled that grand larceny from the person is a lesser offense included within a charge of robbery and permitted the case to go forward on a charge of grand larceny from the person.” Id. A panel of this Court reversed the conviction for grand larceny from the person and held that grand larceny from the person was not a lesser offense included within the robbery specification of the indictment, “because the robbery indictment against Graves did not set forth allegations of value or of theft from the person, it did not charge grand larceny from the person.” Id. at 166, 462 S.E. 2d at 904.
While the holding in Graves relied on the “guidance in Jones v. Commonwealth” to support its decision that grand larceny from the person is not a lesser-included offense of robbery, both Jones and other counsel authority support the contrary conclusion – that grand larceny from the person is a lesser-included offense of robbery. See Martin, 221 Va. at 723, 273 S.E. 2d at 780-81; Jones, 218 Va. at 759, 240 S.E. 2d at 660; Clayton Motors v. Commonwealth, 14 Va. App. 470, 472-73, 417 S.E. 2d 314, 315-16, 8 Va. Law Rep. 2975 (1992).
The issue addressed in Graves was not whether a subsequent indictment for grand larceny from the person would violate the protections of the Double Jeopardy Clause after an acquittal of robbery. It did not address whether the accused could be convicted in a single trial of both larceny from the person and robbery based on the same transaction. Graves was limited to whether the trial court correctly gave a jury instruction on grand larceny from the person as a lesser-included offense for robbery under the indictment then before it.
The Supreme Court has “pointed out that one offense is not lesser-included within another unless all its elements are included in the other.” Martin, 221 Va. at 723, 273 S.E. 2d at 780-81.
Id. at 760, 240 S.E. 2d at 660; see also Martin, 221 Va. at 723, 273 S.E. 2d at 780-81.
The larceny, however, must be based on the same theft as that which underlies the robbery. If not, the larceny and the robbery are based on “distinct and separate acts” and conviction of one does not bar conviction of the other. Martin, 221 Va. at 726, 273 S.E. 2d at 782. Whether the robbery and the larceny are based on the same theft may be determined by comparing the two indictments. Jones, 218 Va. at 759-60, 240 S.E. 2d at 660-61.
However, this fact may not always be determined from the indictments, and it may be necessary to examine the evidence.
Martin, 221 Va. at 725-26, 273 S.E. 2d at 782. Clayton Motors, 14 Va. App. at 472-73, 417 S.E. 2d at 315-16.
In Clayton Motors, which the Graves decision did not discuss, the defendant entered a convenience store and asked the clerk for two $ 300 money orders. Clayton Motors, 14 Va. App. at 471, 417 S.E. 2d at 315. When the clerk asked for payment, the defendant showed her a pistol in his waistband and ordered her to give him the money orders. Id. The defendant was charged and convicted of both robbery and of larceny of the money orders. Id. at 472, 417 S.E. 2d at 315. We noted that “where a defendant is charged with robbery and larceny based upon ‘distinct and separate acts’ which do ‘not involve the same theft’ of the same object a defendant is not twice put in jeopardy for the same offense.” Id. (quoting Martin, 221 Va. at 726, 273 S.E. 2d at 782); see also Jones, 218 Va. at 761, 240 S.E. 2d at 661. Where the robbery and the larceny are based upon the theft of the same item, “proof of the larceny is necessarily included in proving the robbery.” Clayton Motors, 14 Va. App. at 472, 417 S.E. 2d at 315 (citing Martin, 221 Va. at 723, 273 S.E. 2d at 780-81). Accordingly, this Court held that because the defendant was convicted of both the robbery and the theft of the same money orders, punishing for both offenses violated double jeopardy. Id. at 473, 417 S.E. 2d at 316. Likewise, convicting a person of robbery of a bicycle and the theft of the same bicycle as part of the same transaction would violate double jeopardy. See Graves, 21 Va. App. at 167, 462 S.E. 2d at 905 (concluding simple larceny is a lesser-included offense under the robbery indictment in that case).
Martin and Jones differ from the present case in that each of those defendants was convicted of two distinct and separate thefts. In Martin, the defendant robbed a service station attendant at gunpoint of the money in his pockets and also of the money kept inside the service station. Martin, 221 Va. at 722, 273 S.E. 2d at 779. He was indicted for both robbery and grand larceny and convicted of robbery and the lesser-included offense of petit larceny. Id. at 722, 273 S.E. 2d at 780. He was convicted of petit larceny rather than grand larceny because the Commonwealth failed to prove the value of the money stolen from the service station. Id. at 722, 273 S.E. 2d at 779-80.
Definitionally, theft is an essential component of robbery and charged as such in every robbery indictment. Manifestly, a robbery indictment includes all elements of whatever larceny offense it charges, whether grand or petit, and the larceny offense charged is, therefore, lesser-included in robbery. Jones, 218 Va. at 759-60, 240 S.E. 2d at 660. “Thus, the considerations involved in determining whether offenses are the same or lesser-included ‘as charged in an indictment’ for double jeopardy purposes are quite different from those involved in determining whether the elements of offenses are the same for purposes of convicting an accused of a lesser-included offense.” Graves, 21 Va. App. at 169, 462 S.E. 2d at 905-06 (Coleman, J., dissenting).
Here, Hudgins was charged initially with robbery for stealing a bicycle from an eleven-year-old victim. In acquitting Hudgins of that robbery, the trial court noted its belief that the evidence was sufficient to convict him of larceny from the person, indicating that it found that the larceny of the bicycle occurred. It did not, however, convict Hudgins of any larceny offense, thereby acquitting him of any larceny offense that was a part of the robbery charge. With Hudgins having been acquitted by the trial court of the larceny of the bicycle, the Commonwealth was thereafter barred by the Double Jeopardy Clause from requiring him to stand trial anew for stealing the same bicycle from the same person in the same criminal act that was the basis of the robbery trial. Clayton Motors, 14 Va. App. at 472, 417 S.E. 2d at 315.
In Graves, the majority relied on common law definitions of robbery and larceny from the person to determine whether grand larceny from the person was a lesser-included offense of robbery charged in the indictment. It focused its analysis not on whether all larceny is a lesser-included offense of robbery, but on whether the particular charging document sufficiently alleged a value that would support a conviction of grand larceny or grand larceny from the person. It concluded that the indictment before it charging robbery did not charge grand larceny from the person.
Relying on our holding in Garland, the majority in Graves concluded that the “from the person” element of larceny was different than the “in his presence” taking element of robbery. Thus, we hold that larceny from the person embraces not only theft of property from physical contact with the victim, but also theft of property that is in the victim’s possession and within his immediate custody and control.
At common law property was stolen “from the person” of another even if it was only “in the presence” of the person at the time it was stolen ….”Property is stolen ‘from the person’ if it was under the protection of the person …although not actually ‘attached’ to him ….As said by Coke in the 1600’s: ‘for that which is taken in his presence, is in law taken from his person. ‘” Id. at 709, 446 S.E. 2d at 630 quoted with approval in Graves, 21 Va. App. at 171, 462 S.E. 2d at 907 (Coleman, J., dissenting). We hold that larceny from the person, whether grand or petit, is a lesser-included offense of robbery, and to the extent that Graves is inconsistent with this holding, we overrule Graves.
When Hudgins was first tried and acquitted on March 16, 2001 of robbery involving the bicycle, the trial court indicated that the evidence was sufficient to support a conviction of larceny. When it failed to convict, however, the trial court’s general verdict of acquittal necessarily acquitted Hudgins of the lesser-included offense of larceny of the bicycle. The trial court’s indication in the first proceeding that it believed the evidence was insufficient to prove robbery but sufficient to prove larceny from the person does not support a different result. Jeopardy having attached, and there being an acquittal of larceny of that bicycle, Hudgins could not thereafter be forced to stand trial for that same offense.
A verdict of acquittal on the issue of guilt or innocence is, of course, absolutely final ….
For these reasons, we reverse Hudgins’s conviction for grand larceny from the person. To the extent that our holding in Graves that larceny from the person is not a lesser-included offense of robbery is inconsistent with this opinion, it is overruled. The trial court erred in denying Hudgins’s motion to dismiss the indictment as violative of the Double Jeopardy Clause of the counsel and United States Constitutions. We reverse and dismiss his conviction. Reversed and dismissed.