                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Baker and Coleman
Argued at Richmond, Virginia


ROBERT STEPHEN REYNOLDS

v.   Record No. 2025-94-2             MEMORANDUM OPINION * BY
                                    CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA                   MAY 7, 1996


           FROM THE CIRCUIT COURT OF GOOCHLAND COUNTY
                 D. W. Murphey, Judge Designate
          Robert S. Reynolds, pro se.

          Robert B. Beasley, Jr., Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.


     Robert Stephen Reynolds appeals his conviction of grand

larceny, breaking and entering with intent to commit larceny, and

trespass on the ground that the evidence was insufficient to

prove his guilt beyond a reasonable doubt. 1   We affirm the

convictions.

     At approximately 7:00 p.m. on April 25, 1994, Robert

Reynolds and his girlfriend, Melanie Brandon, drove to the home

of Rick and Barbara Smith.   They were accompanied by two friends,

including the driver of the vehicle.    Ms. Brandon believed that

Smith had stolen four oriental rugs from her.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      At trial and in his brief, Reynolds also argued that the
trial court erred in the instruction to the jury on "good faith
claim of right." On brief and at oral argument, Reynolds
requested that the Court not reverse the convictions on this
ground. Therefore, we treat this claim as waived and do not
consider Reynolds' argument on the jury instruction.
     When they arrived, only Mrs. Smith was at home.    Mrs. Smith

met the pair at the front door, and they told her that they had

come to get the rug that Mr. Smith had stolen from Ms. Brandon.

Mrs. Smith told them that her husband had purchased the rug from

Ms. Brandon and asked them to leave or she would call the police.

Mrs. Smith then closed the front door, and went to her bedroom

to call the police.

     While Mrs. Smith was on the telephone, Reynolds and Ms.

Brandon opened the door and went into the house.   Mrs. Smith

encountered Reynolds and Brandon in the living room.   Ms. Brandon

pointed out a rug in the baby's bedroom that she said was hers.

Mrs. Smith called the police a second time, and then left the

house, went into the yard, and yelled for help.
     Ms. Brandon left the house after Mrs. Smith did, and went

back to the car.   Ms. Brandon and her two friends drove away.

Reynolds then left the house carrying the rug, and ran through

the yard toward the area where the car had been parked.   Mrs.

Smith grabbed hold of the rug.    Mrs. Smith went inside with the

police to open a lockbox, and retrieved a receipt for the

purchase of a 9 x 12 oriental rug for $250, made out to Mr. Smith

and signed by Ms. Brandon.   At trial, the Commonwealth produced a

cancelled check made out to Melanie Brandon for the purchase of a

9 x 12 Chinese rug.

     Ms. Brandon testified that she had told Reynolds on several

occasions that Mr. Smith had stolen rugs that she had entrusted

to him for safekeeping.   However, Ms. Brandon also testified that

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she did not intend to take anything from the Smiths' home.     Ms.

Brandon testified that after they had spoken with Mrs. Smith at

the front door she asked Reynolds not to go in, that she would

rather take care of it a different way.   Ms. Brandon stated that

she went into the house only in order to persuade Reynolds to

leave.

     Reynolds acknowledged that Ms. Brandon urged him not to take

the rug.   He insisted on taking it because he thought Ms. Brandon

had the right to do so.   Reynolds also testified that he had a

"connection" with Ms. Brandon's property because he had been

supporting her and she told him "what's mine is yours."
     The officers who arrived at the scene testified that

Reynolds told them he was there to take possession of something

that belonged to a friend of his.   Reynolds did not tell either

officer that the rug was his or partially his.

     On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.    Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

     Larceny is the 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.   Bryant v. Commonwealth, 248 Va. 179, 183, 445

S.E.2d 667, 670 (1994).   If, however, the property is taken

"under a bona fide claim of right, as under a claim of ownership
or in a bona fide attempt to enforce payment of a debt," criminal

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intent is lacking and there can be no larceny.    Pierce v.

Commonwealth, 205 Va. 528, 533, 138 S.E.2d 28, 32 (1964).      Even

if the claimant's belief that he has a right to take the property

is unreasonable, it constitutes a bona fide claim of right so

long as the belief was made honestly and in good faith.       See 50

Am.Jur.2D Larceny § 46 (1995); see also Whitlow v. Commonwealth,

184 Va. 910, 918, 37 S.E.2d 18, 21 (1946).

     Reynolds argues that the Commonwealth failed to prove intent

to steal because he honestly believed that the rug belonged to

Ms. Brandon and he was acting as her agent in recovering it.      He

also claims to be a part owner of the property.
       The doctrine of bona fide claim of right applies where the

claimant is acting on behalf of another, and where he believes

himself to be part owner of the property taken.    See 50 Am.Jur.2D

Larceny § 46.   Construing the evidence in the light most

favorable to the Commonwealth, it supports the inference that

Reynolds knew he was not acting as Ms. Brandon's agent because

she asked him not to enter the house or take the rug.   As for

Reynolds' claim of part ownership, his statements at the scene

reflect only his belief that the rug belonged to Ms. Brandon,

thus leading to a permissible inference that he created this

claim after the fact.   Thus, the evidence was sufficient to

convict Reynolds of larceny.

     Reynolds could not be convicted of trespass if he entered

the property under a bona fide claim of right.    Reed v.

Commonwealth, 6 Va. App. 65, 71, 366 S.E.2d 274, 278 (1988).      A

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bona fide claim of right in the trespass context "is a sincere,

although perhaps mistaken, good faith belief that one has some

legal right to be on the property.      The claim need not be one of

title or ownership, but it must rise to the level of

authorization."   Id.   Reynolds had no claim of ownership or

authorization, and therefore the evidence was sufficient to

convict him of trespass.   For these reasons, we affirm his

convictions.
                                                 Affirmed.




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