                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia


JON RAY MOSS, A/K/A
 JOHN R. MOSS
                                         MEMORANDUM OPINION * BY
v.   Record No. 2147-97-2              JUDGE JAMES W. BENTON, JR.
                                           FEBRUARY 2, 1999
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                     Herbert C. Gill, Jr., Judge
            Lee W. Kilduff (Morchower, Luxton & Whaley,
            on brief), for appellant.

            Linwood T. Wells, Jr., Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.



      Jon Ray Moss was convicted on two indictments charging that

he had "in his possession . . . tools [or] implements . . . with

intent to commit . . . larceny . . . [in violation of] Code

§ 18.2-94."   He contends that the evidence was insufficient to

sustain the convictions because the item he possessed was a key.

 We affirm the convictions.

                                 I.

      The essential facts are uncontested.    Greg Nuckols, the

owner of a vending machine company, employed Jon Ray Moss as a

salesman.   Moss' duties included servicing the company's coin

operated vending machines at various sites.    Moss was given a key

that allowed him to open the machines in order to change
      *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
merchandise and remove money.   While Moss was employed, one of

the keys used to open the machines was reported missing.    Moss

worked two or three weeks before Nuckols fired him.   After he

fired Moss, Nuckols began to notice that money was being removed

from various machines.   Nuckols reported the losses to the

police.

     While investigating Nuckols' complaint, a police detective

questioned Moss regarding the vending machine losses.   Moss told

the detective that Nuckols had fired him.   Moss also admitted

that he took a set of the company's keys, used the keys to enter

several vending machines after he had been fired, and had removed

money from the vending machines.
     At the conclusion of the evidence, Moss moved to strike the

evidence and argued that a key was not a tool or implement as

contemplated by Code § 18.2-94.    The trial judge overruled the

motion and convicted Moss on both indictments.

                                  II.

     In a recent appeal involving this same appellant and

concerning similar circumstances, we ruled as follows:
          To place the keys beyond the reach of Code
          § 18.2-94, defendant relies upon a dictionary
          definition of tool, "something (as an
          instrument or apparatus) used in performing
          an operation or necessary in the practice of
          a vocation or profession," Webster's Ninth
          New Collegiate Dictionary 1243 (1985), and of
          implement, "things as are used or employed
          for a trade, or furniture of a house.
          Particularly applied to tools, utensils,
          instruments of labor; as the implements of
          trade or of farming." Black's Law Dictionary
          754 (deluxe 6th ed. 1990).



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             Defendant's arguments, however,
          misconstrue both the statute and the
          evidence. Code § 18.2-94 requires proof that
          the offending tools, implements or outfit
          were intrinsically "burglarious" only when
          the Commonwealth relies upon the statutory
          presumption to establish the requisite
          criminal intent. Here, unaided by the
          presumption and guided by the dictionary
          definition cited by defendant, we find that
          the vending machine keys were tools,
          "something (as an instrument or apparatus)
          . . . necessary in the practice of a
          vocation." Manifestly, keys to unlock
          [Nuckols'] vending machines were
          indispensable to the business.


Moss v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___

(1999) (footnotes omitted).

     The evidence at trial proved that Moss stole a set of keys

and used the keys without authorization to open several of the

company's vending machines and steal money.   Thus, the evidence

was sufficient to prove beyond a reasonable doubt that Moss had

in his possession and used keys, which are tools as specified in

Code § 18.2-94, with the intent to commit larceny.
                                                         Affirmed.




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