ANALYSIS OF OCTOBER 21, 2008 CAV OPINION[Posted October 21, 2008] Last week, the Court of Appeals of Virginia handed down no published opinions. Today we get one, a criminal appeal involving a conviction for grand larceny of a vehicle. The case is McEachern v. Commonwealth, and arose in Newport News.
This started as an argument between a boyfriend and a girlfriend over – what else? – fidelity. As the girlfriend drove the boyfriend to his mother’s house on the Peninsula, he angrily accused her of cheating on him. She then tried to make a call on her cell phone; he snatched the phone away from her and threw it out the window. (The opinion doesn’t disclose the conversation that preceded this act, but we are left with the clear impression that he didn’t do it out of concern about the dangers of talking on a cell phone while driving.) The girlfriend stopped the car to retrieve her phone, but the boyfriend was having none of that; he grabbed her by the hair, forced her back into the car, and ordered her to keep driving.
Eventually the two arrived at his mother’s house. When they pulled up in the driveway, the boyfriend put the car in park and took the keys (remember, he’s sitting in the passenger seat). The girlfriend wanted to just drive away, but he threatened her if she did not accompany him inside. She complied, and when they got inside, she did the logical thing – she asked his mother for help in dealing with the angry man. Eventually things got uglier, to the point that the boyfriend started choking her, in his mother’s presence.
Right away, I have discerned that the boyfriend had a very different upbringing than I did. In addition to not choking people (something I have always been able to resist doing), it would not occur to me to attack someone while my mother is in the room watching me. But this didn’t stop the boyfriend, who was eventually restrained by the mother and another man who was in the room. At that, he escalated things even further: He pulled a gun. He marched the girlfriend out to the car, presumably at gunpoint, and told her that he was going to take her away and kill her and then himself. Fortunately for the girlfriend, she escaped further injury when the boyfriend realized that he had to go back inside to get something he had forgotten (it must have been awfully important); she sensibly headed for the hills while he was inside.
The boyfriend then took her car and drove off; this is the act that led to the conviction that’s the subject of today’s opinion. He eventually abandoned it at a gas station and told her (fortunately, in a phone call and not face-to-face) where to find it.
The question in this appeal is whether the evidence showed that the boyfriend had the intent to permanently deprive the girlfriend of her car. If he merely used it for a while without intending to keep it, then he’s guilty of the lesser offense of unauthorized use (in common terms, joyriding). But the trial judge, sitting without a jury, believed the Commonwealth’s witnesses and convicted him of the larceny charge.
In reading the court’s factual recitation, I wondered just how important in the cosmic scheme of this prosecution, this particular charge could be. In addition to this, based on the facts as set forth he surely committed abduction, multiple instances of assault, brandishing a firearm, use of a firearm in the commission of a felony, and maybe armed robbery. A reasonably creative prosecutor could probably supplement this list. I would imagine that the boyfriend will be receiving free room and board with the compliments of the Attorney General for quite some time now, on those extra charges alone. But he got a writ from the Court of Appeals to review this one larceny conviction, and that enables us to become familiar with the term animus furandi, which is sprinkled liberally throughout today’s opinion.
I will confess that if I have ever heard of this term before, it got lost in the dim recesses of my legal education. It means nothing more than “intent to steal,” and the appeal turns on whether the evidence established such an intent.
Anyone who has spent any meaningful time reading appellate opinions knows that, with very limited exceptions, an appellate court views the evidence in a light most favorable to the party who prevailed at trial. In a criminal case, that means the Commonwealth. The doctrine also requires the appellate court to afford the victor below the benefit of all reasonable inferences from that evidence, and this decision is about one of those inferences: Under well-established Virginia law, “the very existence of a trespassory taking permits the inference (unless other circumstances negate it) that the taker intended to steal the property.” The boyfriend clearly took the car against the girlfriend’s wishes, so the trial court was permitted to infer that he meant to commit larceny.
It’s worth a short digression here on the difference between a presumption and an inference. Since this is a criminal case, the Commonwealth isn’t entitled to a presumption; that would relieve it of the obligation to prove an element of the offense beyond a reasonable doubt. For example, in civil cases in Virginia, it’s pretty well established that a person is presumed to intend the natural and probable consequences of his actions. But in criminal cases, based on US Supreme Court precedent, no such presumption can exist; instead, the factfinder is entitled to infer such an intent if the evidence leads it to that conclusion. The factfinder can just as well decline to make such an inference, if it views the evidence that way.
The trial judge drew the inference and convicted the boyfriend. The appellate court, reviewing the trial court’s judgment, isn’t permitted to go back to square one and decide for itself whether to draw that inference. The law requires it to afford deference to the factfinder’s decision on this point. That’s why asking an appellate court to revisit an inference is a big waste of syllables; under well-established principles of appellate review, they can’t do that.
The court today makes two final observations that close the door on any possibility of a reversal. First, as other appellate courts have observed, other bad acts by the defendant at the time of the taking can help to establish the inference of intent to steal. The boyfriend certainly supplied plenty of such acts in this case. And second, the court points to a couple of earlier decisions that hold that abandoning a car after stealing it doesn’t convert the crime from larceny into joyriding.