                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Petty
Argued at Richmond, Virginia


MICHAEL BASSEY AKPAN
                                                               MEMORANDUM OPINION * BY
v.      Record No. 0906-09-2                                  JUDGE ROBERT J. HUMPHREYS
                                                                     MARCH 2, 2010
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF PRINCE GEORGE COUNTY
                                Samuel E. Campbell, Judge

                  Charles R. Watson for appellant.

                  Josephine F. Whalen, Assistant Attorney General II (William C.
                  Mims, Attorney General, on brief), for appellee.


        Michael Bassey Akpan (“Akpan”) appeals his four convictions for attempting to obtain

money by false pretenses, in violation of Code §§ 18.2-178 and 18.2-26. 1 On appeal, Akpan

contends that, under the “single larceny doctrine,” the evidence adduced at trial was only

sufficient to support a single conviction. For the following reasons, we agree with Akpan and

reverse. 2

        “Where the issue is whether the evidence is sufficient, we view the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        1
            Three of Akpan’s four convictions were felony convictions.
        2
         As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, we recite only those facts and incidents of
the proceedings as are necessary to the parties’ understanding of this appeal.
therefrom.” Sandoval v. Commonwealth, 20 Va. App. 133, 135, 455 S.E.2d 730, 731 (1995).

So viewed the evidence in the record was as follows.

       On January 31, 2008, Akpan and Tiffany Ward (“Ward”) deposited a forged check into

Ward’s account at the Fort Lee Federal Credit Union. 3 Over the next few days, Akpan used

Ward’s card to withdraw money from her account. By February 7, 2008, Akpan had withdrawn

$2,280 from the account. On that day, the credit union discovered that the check was a forgery

and, unbeknownst to Akpan, froze Ward’s account. Later that same day, Akpan attempted to

withdraw money from the credit union’s ATM. Initially, Akpan tried to withdraw $400 from the

ATM, but the transaction was declined. He then immediately tried to withdraw $300, but again,

the transaction was declined. Undeterred, Akpan made two additional attempts to withdraw

money from the account, first for $200 and then for $100. Each time, Akpan would insert

Ward’s card into the ATM, enter her PIN, and attempt to withdraw money. A mere twenty-four

seconds elapsed from Akpan’s first attempted withdrawal to his last.

       Ultimately, Akpan was arrested and admitted that he attempted to withdraw funds from

the frozen account on February 7, 2008. The trial court found Akpan guilty of four counts of

attempting to obtain money by false pretense, concluding that each attempt to withdraw money

from the ATM constituted a separate offense. On appeal, Akpan contends that, under the “single

larceny doctrine,” the evidence adduced at trial was only sufficient to prove a single offense, not

four. We agree.

       “‘A series of larcenous acts will be considered a single count of larceny if they are done

pursuant to a single impulse and in execution of a general fraudulent scheme.’” Millard v.

Commonwealth, 34 Va. App. 202, 206, 539 S.E.2d 84, 86 (2000) (quoting Acey v.


       3
         Akpan was also convicted of two counts of attempting to utter/forge a check; however,
those convictions are not at issue in this appeal.

                                               -2-
Commonwealth, 29 Va. App. 240, 247, 511 S.E.2d 429, 432 (1999)). As we have previously

noted, “‘[t]he overriding principle behind the single larceny doctrine is to prevent the state from

aggregating multiple criminal penalties for a single criminal act.’” Id. (quoting Richardson v.

Commonwealth, 25 Va. App. 491, 496, 489 S.E.2d 697, 700 (1997) (en banc)). In order to

determine whether the “single larceny doctrine” applies to a particular set of circumstances, we

must consider the following factors: “(1) the location of the items taken, (2) the lapse of time

between the takings, (3) the general and specific intent of the taker, (4) the number of owners of

the items taken and (5) whether intervening events occurred between the takings.” Id. However,

“‘[t]he primary factor to be considered is the intent of the thief . . . .’” Acey, 29 Va. App. at 247,

511 S.E.2d at 432 (quoting Richardson, 25 Va. App. at 497, 489 S.E.2d at 700).

       Applying the above factors to this case, we hold that Akpan’s actions constituted a single

criminal act. The evidence in the record demonstrates that Akpan made four, successive

attempts to withdraw money from a frozen bank account, through the bank’s ATM. Each time,

the ATM declined the transaction. Virtually no time elapsed between the attempted takings, the

bank was the only victim, and there were no intervening events sufficient to “break the

continuity of [Akpan’s] single and continuing act of thievery.” Richardson, 25 Va. App. at 498,

489 S.E.2d at 701. 4 Furthermore, it is clear from the record that “the [attempted] thefts were part

of the same larcenous impulse” to access the illegally obtained funds through the bank’s ATM.

Id. at 497, 489 S.E.2d at 700. Thus, we hold that, under the “single larceny doctrine,” the

evidence adduced at trial was sufficient to prove only a single criminal act on the part of Akpan.


       4
         The Commonwealth argues that the ATM’s ejection of Ward’s bankcard constituted an
intervening event for purposes of the single larceny analysis. The Commonwealth claims that
Akpan “had to form a separate intent” after his initial attempt to withdraw money from the ATM
was denied. We disagree. In our view, the record demonstrates that Akpan acted “‘pursuant to a
single impulse and in execution of a general fraudulent scheme.’” Millard, 34 Va. App. at 206,
539 S.E.2d at 86 (quoting Acey v. Commonwealth, 29 Va. App. 240, 247, 511 S.E.2d 429, 432
(1999)).
                                                -3-
As a result, we reverse the trial court and remand this matter to the trial court for it to determine,

with the assistance of the Commonwealth, which three of the four convictions for attempting to

obtain money by false pretenses to vacate and to re-sentence Akpan accordingly.

                                                                             Reversed and remanded.




                                                 -4-
