                       COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia


JERMAINE CHAMBERS, S/K/A
 JERMAINE C. CHAMBERS
                                           MEMORANDUM OPINION * BY
v.     Record No. 0805-01-4            JUDGE RUDOLPH BUMGARDNER, III
                                                AUGUST 6, 2002
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                        Leslie M. Alden, Judge

            Mark S. Loria for appellant.

            Steven A. Witmer, Assistant Attorney General
            (Jerry W. Kilgore, Attorney General, on
            brief), for appellee.


       A jury convicted Jermaine Chambers of carjacking in

violation of Code § 18.2-58.1.    He contends the trial court

erred by refusing to instruct that larceny is a lesser-included

offense of carjacking.     Concluding that it is not a

lesser-included offense, we affirm.

       Under Blockburger v. United States, 284 U.S. 299 (1932), an

offense is not a lesser-included offense of another offense if

it contains an element of proof that the greater offense does

not.    One crime is a lesser-included offense of another crime if

"every commission of the greater offense must be a commission of


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
the lesser offense."   Kauffmann v. Commonwealth, 8 Va. App. 400,

409, 382 S.E.2d 279, 283 (1989) (citation omitted).   "In

applying the Blockburger test, we look at the offenses charged

in the abstract, without referring to the particular facts of

the case under review."   Coleman v. Commonwealth, 261 Va. 196,

200, 539 S.E.2d 732, 734 (2001) (citation omitted).

     Carjacking is "the intentional seizure or seizure of

control of a motor vehicle of another with intent to permanently

or temporarily deprive another in possession or control of the

vehicle of that possession or control by means of [violence or

the threat thereof] . . . ."   Code § 18.2-58.1(B).   An accused

must act with the intent to "permanently or temporarily deprive"

another of possession or control of the vehicle.

     Larceny is "'the wrongful or fraudulent taking of personal

goods of some intrinsic value, belonging to another, without his

assent, and with the intention to deprive the owner thereof

permanently.'"   Bryant v. Commonwealth, 248 Va. 179, 183, 445

S.E.2d 667, 670 (1994) (quoting Skeeter v. Commonwealth, 217 Va.

722, 725, 232 S.E.2d 756, 758 (1977)).   The offense requires

"'an actual taking, or severance of the goods from the

possession of the owner,'" Mason v. Commonwealth, 200 Va. 253,

256, 105 S.E.2d 149, 151 (1958) (citation omitted), and the

carrying away or asportation of the property, Bryant, 248 Va. at

183, 445 S.E.2d at 670.   The accused must act with the intent

"to permanently deprive" another of property.   Stanley v.

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Webber, 260 Va. 90, 96, 531 S.E.2d 311, 315 (2000) (citations

omitted).

        Comparing only the elements of intent 1 discloses that

larceny cannot be a lesser-included offense of carjacking.

Larceny requires the intent to "permanently deprive," but the

lesser intent to "temporarily deprive" is sufficient to prove

carjacking.      Code § 18.2-58.1(B).   Carjacking does not always

require proof of the specific intent to "permanently deprive"

another of property because the statute employs the disjunctive

"or."       See Coleman, 261 Va. at 200-01, 539 S.E.2d at 734

(malicious wounding is not lesser-included offense of attempted

murder, which requires the specific intent to kill).      Thus, a

conviction for carjacking will not necessarily result in proof

of a larceny.

        We conclude that proof of carjacking will not always result

in proof of larceny.      Therefore, larceny is not a




        1
       Larceny requires: (1) an actual taking of possession, (2)
asportation, (3) an intent to deprive permanently, and (4) proof
the car had intrinsic value. Carjacking does not require a
taking from the person, some asportation, or proof of intrinsic
value. A carjacker "need not fully acquire possession." Roger
D. Groot, Criminal Offenses and Defenses in Virginia 81 (4th ed.
1998). Under certain circumstances, seizing car keys is seizing
control of the car. Bell v. Commonwealth, 21 Va. App. 693, 467
S.E.2d 289 (1996). Carjacking does not require proof of some
intrinsic value.


                                   - 3 -
lesser-included offense of carjacking.   Accordingly, the trial

judge did not err in refusing to give the larceny instructions.

                                                   Affirmed.




                              - 4 -
Benton, J., concurring.

     The trial judge refused to instruct the jury on the

elements of larceny as a lesser-included offense of carjacking.

In determining under Virginia law whether one offense is

lesser-included in another, we apply the Blockburger test.

Blythe v. Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 798

(1981).   "[T]he test to be applied . . . is whether each

[statutory] provision requires proof of a fact which the other

does not."     Blockburger v. United States, 284 U.S. 299, 304

(1932).

     In pertinent part, Code § 18.2-58.1 provides as follows:

             B. As used in this section, "carjacking"
             means the intentional seizure or seizure of
             control of a motor vehicle of another with
             intent to permanently or temporarily deprive
             another in possession or control of the
             vehicle of that possession or control by
             means of partial strangulation, or
             suffocation, or by striking or beating, or
             by other violence to the person, or by
             assault or otherwise putting a person in
             fear of serious bodily harm, or by the
             threat or presenting of firearms, or other
             deadly weapon or instrumentality
             whatsoever. . . .

             C. The provisions of this section shall not
             preclude the applicability of any other
             provision of the criminal law of the
             Commonwealth which may apply to any course
             of conduct which violates this section.

(Emphasis added.)    By case decision in Virginia, "[l]arceny, a

common law crime, is the wrongful or fraudulent taking of




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another's property without his permission and with the intent to

deprive the owner of that property permanently."   Tarpley v.

Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001)

(emphasis added).

     "We have previously noted that carjacking is a species of

robbery."   Sanchez v. Commonwealth, 32 Va. App. 238, 241, 527

S.E.2d 461, 463 (2000) (citing Bell v. Commonwealth, 21 Va. App.

693, 701, 467 S.E.2d 289, 293 (1996)).   Indeed, we held in

Sanchez that "Code § 18.2-58.1 defines carjacking essentially as

'a particularized form of robbery.'"   32 Va. App. at 241-42, 527

S.E.2d at 463.   That holding is significant because the Supreme

Court has "observed that theft is an essential component of

robbery, charged as such in every robbery indictment, and that a

robbery indictment includes, therefore, all elements of whatever

larceny offense is charged, whether grand or petit."   Martin v.

Commonwealth, 221 Va. 720, 723-24, 273 S.E.2d 778, 780-81

(1981).

     Applying the Blockburger test in Whalen v. United States,

445 U.S. 684 (1980), the United States Supreme Court noted that

although courts should not look to the facts as alleged in the

indictments, id. at 694 n.8, courts should look at the elements

of the offense as alleged in the indictments.   Thus, in Whalen,

the Supreme Court ruled as follows:




                              - 6 -
   In this case, resort to the Blockburger
rule leads to the conclusion that Congress
did not authorize consecutive sentences for
rape and for a killing committed in the
course of the rape, since it is plainly not
the case that "each provision requires proof
of a fact which the other does not." A
conviction for killing in the course of a
rape cannot be had without proving all the
elements of the offense of rape. The
Government contends that felony murder and
rape are not the "same" offense under
Blockburger, since the former offense does
not in all cases require proof of a rape;
that is, [the felony murder statute]
proscribes the killing of another person in
the course of committing rape or robbery or
kidnapping or arson, etc. Where the offense
to be proved does not include proof of a
rape – for example, where the offense is a
killing in the perpetration of a robbery –
the offense is of course different from the
offense of rape, and the Government is
correct in believing that cumulative
punishments for the felony murder and for a
rape would be permitted under Blockburger.
In the present case, however, proof of rape
is a necessary element of proof of the
felony murder, and we are unpersuaded that
this case should be treated differently from
other cases in which one criminal offense
requires proof of every element of another
offense. There would be no question in this
regard if Congress, instead of listing the
six lesser included offenses in the
alternative, had separately proscribed the
six different species of felony murder under
six statutory provisions. It is doubtful
that Congress could have imagined that so
formal a difference in drafting had any
practical significance, and we ascribe none
to it. To the extent that the Government's




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          argument persuades us that the matter is not
          entirely free of doubt, the doubt must be
          resolved in favor of lenity.

445 U.S. at 693-94 (citations and footnote omitted).

     The Supreme Court of Virginia also has held that "[i]n

applying the Blockburger test, we look at the offenses charged

in the abstract, without referring to the particular facts of

the case under review."   Coleman v. Commonwealth, 261 Va. 196,

200, 539 S.E.2d 732, 734 (2001).   The Supreme Court's decision

in Coleman appears, in its application of the test, however, to

be at odds with Whalen because Coleman requires that we look at

"the use of the disjunctive 'or' in the statute" as creating

hypothetical alternatives within one statute, 261 Va. at 200,

539 S.E.2d at 734, rather than the actuality of distinct

statutes with each having one of the disjunctive elements.     See

Whalen, 445 U.S. at 694 (rejecting the Government's argument

that "felony murder and rape are not the 'same' offense under

Blockburger, since the former offense does not in all cases

require proof of a rape").    Indeed, "the teaching of Whalen"

clearly is that "the construction of the statute should be in

terms of the actuality and not in terms of hypothetical but not

genuine possibilities."   United States v. Barrington, 662 F.2d

1046, 1052 (4th Cir. 1981).

     When I apply the Coleman reasoning to this case, however, I

conclude that although the carjacking statute contains as an


                               - 8 -
element in the disjunctive "intent to permanently . . .

deprive," the larceny offense, which contains that same element,

cannot be deemed a lesser-included offense of the carjacking.

For these reasons, I concur in affirming the conviction.




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