                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia


HERMAN R. ATKINS, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 1322-97-2                   JUDGE MARVIN F. COLE
                                                JUNE 9, 1998
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
                     Robert G. O'Hara, Jr., Judge
             Andrew E. Weaver (Traylor, Morris & Wornom,
             on brief), for appellant.

             Marla Graff Decker, Assistant Attorney
             General (Mark L. Earley, Attorney General, on
             brief), for appellee.



     The appellant, Herman R. Atkins, Jr., was convicted by a

jury of two counts of grand larceny in violation of Code

§ 18.2-95.    On appeal, he contends that (1) the taking of the

firearm was part of the same event and impulse as the taking of

the truck, making him guilty of only one larceny; and (2) the

trial court erred in refusing to instruct the jury on the single

larceny doctrine.    We affirm the convictions.

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."     Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

     So viewed, on the evening of November 9, 1996, Charles Clay
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
parked his 1994 Chevy truck in his driveway in Greensville

County.    He left his .357 handgun lying on top of a blanket on

the front passenger seat.   The truck was unlocked, and Clay left

the key in the ignition.    Between 10:00 p.m. and 10:30 p.m., Clay

heard the truck start and leave the driveway.   He immediately

telephoned the police and reported the vehicle as stolen.

      At trial, appellant testified that on November 9, 1996, he

had been drinking and smoking crack cocaine.    He went into Clay's

yard, found the key in the ignition and drove the truck to

Lawrenceville.   He testified that he did not intend to steal the

truck but to use the truck to get to Lawrenceville in order to

get more cocaine.   He abandoned the truck in a driveway on Route

46.
      Appellant testified that he did not see the gun until he

parked the truck.   He took the gun and put it "over on Grove

Avenue."   His intent was to "save it for another day to sell it

for crack."

      Appellant contends that the taking of the truck and the

taking of the gun were part of one larcenous act and were the

result of a single impulse.   On that ground he contends that the

charges of larceny of the gun and larceny of the truck should

have been merged into a single count of grand larceny, or the

larceny of the gun charge should have been dismissed as barred

under the single larceny doctrine.    The Commonwealth argued that,

since appellant's intent relating to each offense was different,




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each theft was a separate and distinct offense and not a part of

the same impulse.   We agree with the Commonwealth.

     In Richardson v. Commonwealth, 25 Va. App. 491, 489 S.E.2d

697 (1997) (en banc), we stated:
          In order for the single larceny doctrine to
          apply, the items stolen may, but do not have
          to, be part of the same bundle or parcel; it
          is sufficient if they be at the same location
          - that is on the "same table," or same room
          or "same shop," as Lord Hale first observed.
           Alexander [v. Commonwealth], 90 Va. [809] at
          810, 20 S.E. [782] at 783 [(1894)]. When the
          evidence supports a finding that the thefts
          were part of the same larcenous impulse or
          scheme and were part of a continuous act, a
          single larceny has occurred. The primary
          factor to be considered is the intent of the
          thief and the question to be asked is whether
          the thefts, although occurring successively
          within a brief time frame, were part of one
          impulse. The circumstances to be considered
          that will bear upon the issue are the
          location of the items stolen, the lapse of
          time between their taking, the general and
          specific intent of the thief, the number of
          owners, and whether intervening events
          occurred between the takings. . . .

Id. at 497, 489 S.E.2d at 700.   Multiple unlawful takings

constitute separate larcenies if the thief acted upon a separate

intent or impulse for each theft.    See id.

     Appellant acknowledged that stealing the truck was wrong.

He testified that he did not intend to permanently take the

truck, but only to use the truck to drive to Lawrenceville to

purchase cocaine.   He admitted that he did not observe the gun in

the truck until he arrived in Lawrenceville and was about to get

out of the truck.   At that point, appellant took the gun, and hid




                                 3
it in the woods, intending to sell it at a later time to purchase

crack cocaine.

     The evidence was sufficient to prove that appellant's theft

of the truck and the later theft of the gun were separate and

distinct offenses and were not committed pursuant to one scheme,

one intent, one impulse or one plan.      The evidence constitutes

two separate larcenies.   We hold that the trial judge did not err

by refusing to dismiss one of the charges or by refusing to merge

the charges.   The evidence is insufficient to support the single

larceny doctrine.
     The appellant also contends that whether the single larceny

doctrine applied was a question of fact for the jury to decide

and the trial judge committed reversible error when he refused to

grant an instruction on the single larceny theory.      The

Commonwealth responds that the evidence is insufficient to

support the granting of the instruction requested.

     "A reviewing court's responsibility in reviewing jury

instructions is 'to see that the law has been clearly stated and

that the instructions cover all issues which the evidence fairly

raises.'"   Darnell v. Commonwealth, 6 Va. App. 485, 488, 370

S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,

503, 290 S.E.2d 856, 858 (1982)).      "A defendant is entitled to

have the jury instructed only on those theories of the case that

are supported by the evidence."       Frye v. Commonwealth, 231 Va.

370, 388, 345 S.E.2d 267, 280 (1986).      More than a scintilla of



                                  4
evidence must be present to support an instruction.    Id.    When

determining whether sufficient evidence warranted a particular

instruction, we view the evidence in the light most favorable to

the party offering the instruction.    See Foster v. Commonwealth,

13 Va. App. 380, 383, 412 S.E.2d 198, 200 (1991).

     Appellant entered Clay's driveway and drove Clay's truck

away without permission, according to his own testimony,

intending to use the truck to drive to Lawrenceville to purchase

cocaine.    He admitted he did not see the gun or notice that it

was in the truck until he had arrived in Lawrenceville, some

distance away, and parked the truck in a driveway of another

person.    There he saw the gun, took possession of it and hid it,

intending to sell it at a later time to purchase more cocaine.

Appellant never had a single plan or impulse to steal both the

truck and the gun.   He had a separate impulse to steal the truck.

After the passage of considerable time and distance, and after

stopping the truck to abandon it, he discovered the gun.     At this

time, he formed the intent or impulse to steal the gun.      This

constituted a separate and distinct grand larceny.    Since the

evidence proved as a matter of law that appellant committed two

separate larcenies, we find that the trial judge did not err in

refusing to grant an instruction based upon the single larceny

doctrine.
     For the reasons stated, we affirm both convictions of grand

larceny.



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    Affirmed.




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