                    COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Overton and Senior Judge Duff
Argued at Alexandria, Virginia


EDWARD ARDALE BRAME
                                          MEMORANDUM OPINION * BY
v.       Record No. 2381-97-4              JUDGE CHARLES H. DUFF
                                             NOVEMBER 3, 1998
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                      J. Howe Brown, Jr., Judge

            Bobby B. Stafford (Kathryn E. Coward; The Law
            Offices of Raby & Stafford, on brief), for
            appellant.
            Marla Graff Decker, Assistant Attorney
            General (Mark L. Earley, Attorney General, on
            brief), for appellee.



     Edward Ardale Brame (appellant) was convicted of grand

larceny.   He contends on appeal that the Commonwealth failed to

prove an intent to permanently deprive and a wrongful taking,

both essential elements of larceny.   We disagree and affirm the

conviction.

                                 I.

     Appellant, through his company, Sterling Corporation, bought

computers, fax machines, and printers for MCI.     Such equipment

was shipped directly to MCI.    On November 27, 1996, appellant

visited the MCI office located at Tyson's Corner.     While there,

he borrowed a "Compaq LT 5300" laptop computer, worth over

$5,400, from MCI employee Ernest Lease.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     Appellant and Lease were longtime business associates and

personal friends.   Lease testified that he did not place any

restrictions on appellant's use of the computer because, in light

of their friendship, he felt it unnecessary.     According to Lease,

appellant had never before removed an MCI computer from the

building.   On November 27, 1996, however, appellant took the

computer from MCI's building.

     Around January 1, 1997, Eric Donaldson, who was responsible

for tracking approximately 400 computers for MCI, discovered that

the laptop computer taken by appellant was missing.     Donaldson

and Lease notified Jeff Pomerantz, the manager at MCI responsible

for computer inventory, of the missing computer.     Pomerantz

contacted Scott Marion, internal investigator for MCI, and they

contacted the police.   Pomerantz called appellant's business

several times between November and late January and left messages

regarding another matter.   Appellant did not contact Pomerantz.
     On January 29, 1997, appellant took MCI's laptop computer to

the Maryland Exchange, a pawn shop.     He provided the computer,

and another one, as collateral for a $2,000 loan.     When pawn shop

employee Gregory Daymude "brought up the system," it showed

appellant as the registered owner.      The pawn shop was required by

Maryland law to file a "second hand" property report.     Daymude

noted the serial numbers of the two computers on the report and

noted next to the serial number of the computer belonging to MCI,

"registered to Edward Ardale Brame."




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        In mid-February, Investigator Walter of the Montgomery

County (Maryland) Police Pawn Unit, notified Marion that the

computer had been pawned.    Walter seized the computer from the

pawn shop and turned it over to Detective Little of Fairfax

County.    Pomerantz left a telephone message for appellant, asking

about the pawned computer.    Appellant contacted MCI and said that

the computer had been pawned.    Appellant came to MCI on February

13, 1997, but did not return the computer.
        Detective Little spoke with appellant on February 19, 1997.

Appellant told Little that he had borrowed a computer from Lease

to send e-mail messages.    Appellant said that when he had

finished sending messages, Lease was gone.    Appellant said that

he did not want to leave the computer unattended, so he took it

with him for "safe keeping."    Appellant told Little that he kept

it for two to three months and, in February, when he needed money

to go to Tennessee, he pawned the computer to have money for the

trip.    According to appellant, he intended to retrieve the

computer from the pawn shop when he returned from the trip.

        Appellant returned to the pawn shop on February 28, 1997 and

paid $200 interest to extend the loan for thirty days.    On March

26, 1997, appellant paid the pawn shop $1,070 in interest and

principal.

        Lease, who was called as a witness for appellant, testified

that appellant was not authorized to take the computer away from

MCI and pawn it.    Lease testified that from late November to




                                 - 3 -
mid-February, appellant never contacted him.       Pomerantz and

Marion testified that appellant did not have permission to take

the computer or pawn it.

                                II.

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

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"        Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

     Although regulated by statute, under Code § 18.2-95, the
                                            1
crime of larceny is a common law offense.        See Welch v.

Commonwealth, 15 Va. App. 518, 521, 425 S.E.2d 101, 104 (1992).

It is defined as follows:
          "[T]he 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. The animus furandi must
          accompany the taking, but the wrongful taking
          of property in itself imports the animus
          furandi."


Id. at 521-22, 425 S.E.2d at 104 (quoting Dunlavey v.
Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945)).

     Thus, the Commonwealth must prove that the accused took the

property with "the intention to deprive the owner permanently of

his possession of the goods."    Id. at 524, 425 S.E.2d at 105.

Intent may be proved by circumstantial evidence.        See Wilson v.

     1
      Pursuant to Code § 18.2-95, grand larceny is "simple
larceny not from the person of another of goods and chattels of
the value of $200 or more . . . ."



                                - 4 -
Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74 (1995).        In

determining whether the Commonwealth has proven a specific

intent, "the factfinder may consider the conduct of the person

involved and all the circumstances revealed by the evidence."

Wynn v. Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 193, 198

(1987).

     Larceny also involves a "trespassory" taking.      See

Overstreet v. Commonwealth, 17 Va. App. 234, 236, 435 S.E.2d 906,

908 (1993).   In Pritchard v. Commonwealth, 225 Va. 559, 303
S.E.2d 911 (1983), the Supreme Court of Virginia held that "[t]he

owner of personal property may deliver it to another upon

conditions, or in circumstances, which give the recipient bare

custody of the property.    Constructive possession remains in the

owner."    Id. at 562, 303 S.E.2d at 913 (emphasis added).     The

Court in Pritchard, gave as an example "a watch handed to a

friend to time a race, the owner expecting its return at the end

of the race."    Id.   "'A felonious conversion of another's

property by one having bare charge or custody of it involves a

trespass and constitutes larceny.'"      Overstreet, 17 Va. App. at

236, 435 S.E.2d at 908 (quoting 50 Am. Jur. 2d Larceny § 23

(1970)).

                                 III.

     Despite appellant's claims to the contrary, the

circumstantial evidence, particularly appellant's conduct,

established that he intended to permanently deprive MCI of the




                                 - 5 -
laptop computer.

     Appellant "borrowed" the laptop computer on November 27,

1996, to access his e-mail.   He took the computer from the

building on that date, allegedly for safe keeping.   After

November 27, 1996, however, appellant did not attempt to return

the computer to its owners or even contact MCI employees about

his possession of the computer. 2

     Instead, appellant altered the computer to show that it was

registered to him.   Then, after keeping the computer for two

months, he took it, as if he owned it, and pawned it to finance a

trip to Tennessee.   Appellant acknowledged his actions only when

confronted with the theft.    His conduct proved larcenous intent.

     The evidence also established the element of wrongful

taking.   Although Lease did not place any explicit restrictions

on appellant's use of the computer, the circumstances under which

appellant received the computer gave him bare charge or custody

of the property.   He received MCI's computer, while at MCI's

building, in order to access his e-mail.   Just as the example in
Pritchard of a watch loaned to a friend to time a race, the owner

expecting its return at the end of the race, the computer's owner

expected return of the computer when appellant finished using it

for e-mail.   Appellant's retention of the computer for months,

     2
      In appellant's statement to Detective Little, he said that
he had attempted to return the computer to Lease on November 27.
 However, because Lease had left the office for the day,
appellant took the computer with him.



                                - 6 -
his alteration of the computer to show he was the registered

owner, and his pawning of the computer to finance his personal

trip, constituted "a felonious conversion" of the property "by

one having bare charge or custody."   Overstreet, 17 Va. App. at

236, 435 S.E.2d at 908.

     The evidence was sufficient to prove beyond a reasonable

doubt that appellant was guilty of grand larceny of the computer.

Accordingly, we affirm the conviction.
                                                        Affirmed.




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