                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Beales, Alston and Senior Judge Haley
PUBLISHED


            Argued at Richmond, Virginia


            CLAUDIA KATHLEEN PITTS
                                                                                OPINION BY
            v.      Record No. 1728-15-2                                 JUDGE JAMES W. HALEY, JR.
                                                                             NOVEMBER 8, 2016
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                          Steven C. McCallum, Judge

                           J. Martelino, Jr., for appellant.

                           Craig W. Stallard, Assistant Attorney General (Mark R. Herring,
                           Attorney General; Benjamin H. Katz, Assistant Attorney General;
                           David M. Uberman, Assistant Attorney General, on brief), for
                           appellee.


                    Claudia Kathleen Pitts (appellant) was indicted for larceny after having twice been

            convicted of offenses deemed to be larceny. See Code §§ 18.2-96 and 18.2-104. Appellant filed

            a motion in limine to prevent the Commonwealth from prosecuting her under the enhanced

            punishment provision of Code § 18.2-104 because, at the time of her offense, she had not been

            twice convicted of a larceny offense. She also argued the enhanced penalty larceny statute was

            unconstitutionally void for vagueness as applied to her. The trial court denied the motion.

            Appellant entered a conditional guilty plea, and was sentenced to five years with four years and

            nine months suspended. On appeal, appellant challenges the trial court’s pretrial rulings on her

            motion in limine. Finding no error, we affirm the trial court’s decision.

                                                      BACKGROUND

                    The Commonwealth proffered evidence at the hearing on appellant’s conditional guilty

            plea.
       On May 8, 2015, appellant and another female entered a Kohl’s department store in

Chesterfield County. They selected several items of clothing and took them off the hangers. The

two women took the clothing to the customer service department. The store’s policy was to

issue a store credit card in exchange for merchandise that is returned without presentation of a

receipt. Appellant and the other female “returned” the clothing, even though they had never paid

for it, and received a store credit card for the amount of $148.02. They left the store without

paying for anything. Appellant was stopped by a loss prevention officer. She admitted

“returning” items at Kohl’s without having paid for them.

       By indictment on July 20, 2015, appellant was charged with committing larceny after

having been previously convicted of two or more larceny offenses. Appellant’s trial was on

October 27, 2015. The Commonwealth proved that appellant had a larceny conviction from

Henrico County in September 2008. Appellant also was convicted of larceny in Chesterfield

County on June 18, 2015.1

                                           ANALYSIS

                                                 I.

       Code § 18.2-104 provides:

                       When a person is convicted of an offense of larceny or any
               offense deemed to be or punished as larceny under any provision
               of the Code, and it is alleged in the warrant, indictment or
               information on which he is convicted, and admitted, or found by
               the jury or judge before whom he is tried, that he has been before
               convicted in the Commonwealth of Virginia or in another
               jurisdiction for any offense of larceny or any offense deemed or
               punishable as larceny, or of any substantially similar offense in any
               other jurisdiction, regardless of whether the prior convictions were
               misdemeanors, felonies or a combination thereof, he shall be
               confined in jail not less than thirty days nor more than twelve


       1
         We note that the second page apparently was omitted from the copy of the June 18,
2015 conviction order that was admitted as Commonwealth’s Exhibit 2. However, there was no
dispute between the parties that the date of the conviction was June 18, 2015.
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               months; and for a third, or any subsequent offense, he shall be
               guilty of a Class 6 felony.

“Code § 18.2-104 is a recidivist statute that enhances the sentence of a person convicted of a

third larceny-type offense by converting a petit larceny offense from a misdemeanor to a class 6

felony.” Harris v. Commonwealth, 23 Va. App. 311, 313, 477 S.E.2d 3, 4 (1996), aff’d, 24

Va. App. 613, 484 S.E.2d 170 (1997) (en banc). “[T]he object of the allegation of prior

conviction is to put the accused on notice that record proof of a prior conviction will be

introduced, which, if it meets the requirement of the law, that is, proves a prior conviction, will

increase the penalty.” Charles v. Commonwealth, 63 Va. App. 289, 298-99, 756 S.E.2d 917, 922

(2014) (quoting Keeney v. Commonwealth, 147 Va. 678, 684-85, 137 S.E. 478, 480 (1927)).

       Appellant contends that Code § 18.2-104 is a penal statute that should be strictly

construed against the Commonwealth to permit enhanced punishment only where the prior

larceny offenses were committed before the charged offense. However, “[t]he primary objective

of statutory construction is to ascertain and give effect to legislative intent.” Commonwealth v.

Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). In pursuit of this objective, “[c]ourts are

required to apply the plain language of a statute when possible and may not rewrite it.” Parker v.

Warren, 273 Va. 20, 23, 639 S.E.2d 179, 181 (2007). Moreover, “[i]f a statute is not ambiguous

. . . ‘the rule of lenity is not applicable to guide statutory interpretation.’” Paduano v.

Commonwealth, 64 Va. App. 173, 182, 766 S.E.2d 745, 749 (2014) (quoting De’Armond v.

Commonwealth, 51 Va. App. 26, 34, 654 S.E.2d 317, 321 (2007)).

       We find no ambiguity in Code § 18.2-104 to support appellant’s interpretation of the

statute. Code § 18.2-104 provides that upon proof of a prior “conviction,” not a prior “offense,”

a defendant may be subject to the enhanced penalty. “[W]e . . . presume that the legislature

chose, with care, the words it used when it enacted the relevant statute.” Seabolt v. Cty. of



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Albemarle, 283 Va. 717, 720, 724 S.E.2d 715, 717 (2012) (quoting Addison v. Jurgelsky, 281

Va. 205, 208, 704 S.E.2d 402, 404 (2011)).

       Considering language contained in Code § 46.2-357(B)(3), the recidivist provision

applicable to multiple offenses of driving after being declared a habitual offender, the Supreme

Court of Virginia stated that “the General Assembly’s choice of the word ‘offense’ in

§ 46.2-357(B)(3), rather than the word ‘conviction,’ clearly demonstrates an intent to authorize

punishment enhancement without a prior conviction.” Thomas v. Commonwealth, 256 Va. 38,

41-42, 501 S.E.2d 391, 393 (1998). See also Jones v. Commonwealth, 21 Va. App. 435, 440,

464 S.E.2d 558, 560 (1995) (en banc) (affirming enhanced punishment for drug distribution and

finding “[Code § 18.2-248(C)] contains no provision that, in order for the enhanced penalty

provision to obtain, the defendant must have been convicted of the first offense before

committing the second offense”). The converse is true in the present case. The choice of the

word “conviction” rather than “offense” demonstrates the intent to authorize punishment

enhancement where the defendant has been convicted of the prior charge.

       Appellant was indicted for the present offense under the recidivist statute on July 20,

2015, after her June 18, 2015 Chesterfield County larceny conviction. It was uncontroverted that

at the time of her October 27, 2015 conviction of the present offense, she had twice been

convicted of larceny. Accordingly, we find the trial court did not err in applying the plain terms

of the statute and in finding the enhanced penalty provision in Code § 18.2-104 was applicable.

                                                 II.

       Appellant argues the trial court erred in refusing to find that Code § 18.2-104 was

unconstitutionally void for vagueness as applied to her. “A criminal statute is unconstitutionally

vague only if it fails to define the offense ‘with sufficient definiteness that ordinary people can

understand what conduct is prohibited and in a manner that does not encourage arbitrary and

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discriminatory enforcement.’” Bell v. Commonwealth, 21 Va. App. 693, 700, 467 S.E.2d 289,

292 (1996) (quoting Perkins v. Commonwealth, 12 Va. App. 7, 16, 402 S.E.2d 229, 234 (1991)).

As noted above, the meaning of Code § 18.2-104 is clear on its face, and the statute does not

require interpretation of ambiguity. A person of ordinary intelligence would understand that any

second or subsequent conviction of a larceny offense would make him or her eligible for the

enhanced punishment provision under Code § 18.2-104. We find no indication that the statute is

so broad as to render it susceptible to arbitrary enforcement. Accordingly, we find no error in

the trial court’s ruling that the statute was not unconstitutionally vague.

                                          CONCLUSION

       For the foregoing reasons, we affirm appellant’s conviction.

                                                                                        Affirmed.




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