Lady Luck is for Suckers.

In Hunt v. Commonwealth, 46 Va. App. 25, 614 S.E.2d 668 (2005), one Thomas Motley bought lottery tickets from the defendant clerk at a QuickMart in Danville and played the numbers 1119 and 1191. The next day, the defendant showed up at Mr. Motley’s do or asking to see his lottery tickets. Mr. Motley gave them to her, and she told him that 1119 had won. After the defendant had departed, Mr. Motley learned that the winning number was 1191 and discovered that this ticket was missing.

Meanwhile, the defendant promised a neighbor $100 if she would drive the defendant to Farmville to redeem the winning ticket, which she had taken from Mr. Motley. The defendant and the neighbor redeemed the ticket, and the defendant cashed the check and gave the neighbor a $100 bill. Three or four weeks after Mr. Motley contacted the police, the defendant paid him $500 in the presence of a police detective and said “that’s $500 toward the $2,500.” At a bench trial, the judge convicted the defendant of grand larceny under Va. Code Ann. § 18.2-95.

The defendant appealed on the ground that a lottery ticket was like a credit card , check, or other “choses in action” that had no value greater than the underlying paper. Therefore, she arguably did not steal more than $200 and did not commit grand larceny. The Commonwealth replied that Va. Code Ann. § 18.2-98 defines larceny to include bank notes, checks and other writings or papers worth $200 or more.

The Court of Appeals, though, noted that the defendant had been indicted based only on the common law definition of larceny codified in Va. Code Ann. § 18.2-95. Without a charge that a specific statute other than Va. Code Ann. § 18.2-95 has been violated, the defendant could be charged only with the common law offense under that section. As an aside, the court noted that the legislature has since passed Va. Code Ann. § 58.1-4014, making the theft of a lottery ticket to be larceny, with the face value of any prize being deemed the ticket’s value, but that statute did not apply in this case.

Therefore, the court held that the value of the stolen lottery ticket was nothing more than the paper it was printed on. So, the court found that there was insufficient evidence to prove the defendant had stolen something valued at $200 or more, and the defendant was guilty of only petit larceny.

First There was Carjacking, now Bikejacking;
What’s Next, Strollerjacking?

In Commonwealth v. Hudgins, 269 Va. 602, 611 S.E.2d 362 (2005), the defendant pushed an 11-yearold boy off his bicycle and stole it. Besides being as low as the worst, stereotypical playground bully, the defendant was indicted and charged with robbery under Va. Code Ann. § 18.2-58.

The jury, though, acquitted him but re-indicted him ten days after the trial for grand larceny of the same bicycle. The defendant moved to dismiss the new indictment on the grounds of double jeopardy. The trial court denied the motion to dismiss, holding that grand larceny is not a lesser-included offense of robbery. The defendant was convicted of grand larceny and appealed.

The supreme court noted the traditional double jeopardy test enunciated in Blockburger v. United States, 284 U.S. 299 (1932), in which, if the same act or transaction constitutes a violation of two distinct statutory provisions, there are two offenses rather than one if each provision requires proof of a fact which the other does not. Under the Blockburger test, the court is to consider the offenses in the abstract without reference to the particular facts of the case.

The court determined that robbery and grand larceny each require proof of an element that the other does not. Robbery, after all, is defined under the common law as the taking with the intent to steal ano ther’s personal property from his person or in his presence, against his will, and b y violence or intimidation. Grand larceny, however, requires proof that the defendant stole property worth more than $200. Since Virginia law considers the proof of the value of the property to be an essential element of grand larceny under Va. Code Ann. § 18.2-95, the court held that grand larceny was a separate offense, and double jeopardy did not attach.