Marsh v. Commonwealth
704 S.E.2d 624, 2011 Va. App. LEXIS 44, 57 Va. App. 645 (2011)
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Rule of Law:
An intent to return pawned property is only a defense to larceny if the taker has the substantial financial ability to redeem and return it at the time of the taking. A mere subjective intent or hope to return the property is insufficient if the objective ability to do so is lacking.
Facts:
- Bernard Marsh and Rhonda Gazda were in a romantic relationship for approximately two years.
- On October 17, 2008, Gazda discovered that a ring and other jewelry items were missing from her jewelry box.
- When Gazda confronted him, Marsh admitted he had taken and pawned the items for 'quick cash'.
- Marsh told Gazda he would get the jewelry back the next day when he was paid.
- Marsh had previously taken and pawned some of the same jewelry in March 2008 but had subsequently returned it.
- To redeem the jewelry, Marsh needed $3,272.50, which included finance charges on loans he received.
- At the time, Marsh's sole source of income was a carpentry contract that would pay a total of $2,000 in installments.
- Marsh used an $800 installment payment he received from his job to pay other outstanding bills rather than redeem any of the jewelry.
Procedural Posture:
- Bernard Chesley Marsh was charged with grand larceny in a Virginia trial court.
- Following a bench trial, Marsh made a motion to strike the charge, arguing the evidence was insufficient to prove he intended to permanently deprive the owner of her property.
- The trial court denied the motion to strike.
- The trial court found Marsh guilty of grand larceny.
- Marsh (appellant) appealed his conviction to the Court of Appeals of Virginia, arguing the trial court erred in finding the evidence sufficient.
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Issue:
Does a defendant who takes and pawns another's property possess the requisite intent to permanently deprive for a grand larceny conviction if, at the time of the taking, they lack the substantial financial ability to redeem and return the property, despite expressing an intent to do so?
Opinions:
Majority - Humphreys, Judge
Yes. A defendant who pawns another's property possesses the intent to permanently deprive if they lack the substantial ability to redeem it, rendering their stated intent to return the property an invalid defense to larceny. The court reasoned that while a trespassory taking usually implies an intent to steal, a defendant can rebut this inference by showing they intended to use the property temporarily and had the substantial ability to return it. Here, Marsh's financial situation demonstrated he had neither the present nor the prospective ability to redeem the pawned jewelry. He owed over $3,200 but his only expected income was a $2,000 contract, from which he had already used an initial payment for other debts. The court distinguished this case from those involving an 'unconditional' return, noting that the condition of redemption was on Marsh himself, not one he imposed on the owner, Gazda. Therefore, the critical factor was his objective inability to return the property, which legally constitutes an intent to permanently deprive.
Concurring - McClanahan, J.
Yes. While agreeing that the evidence was sufficient for conviction, the concurrence disagreed with the majority’s analysis of the 'unconditional' return requirement. The concurring opinion argued that the majority interpreted the rule too narrowly by stating that a condition must be placed on the original owner. Instead, a condition that a defendant imposes upon himself or that is imposed by a third party (like the pawnshop) can also serve as evidence that the defendant’s intent to return was conditional and thus not a valid defense. However, the concurrence ultimately found this discussion to be dicta, as the case was correctly decided on the narrower and dispositive grounds that Marsh lacked the substantial ability to return the property.
Analysis:
This decision solidifies the legal principle that for larceny, the 'intent to permanently deprive' can be established by the defendant's objective inability to return the property, even if they subjectively intend to do so. The case is significant for clarifying that pawning property without a realistic financial means of redemption is not merely 'temporary borrowing' but larceny. It sets a precedent that courts will scrutinize a defendant's financial capacity at the time of the taking to determine the validity of an 'intent to return' defense. The disagreement between the majority and concurrence also highlights an unresolved tension regarding what constitutes a 'conditional' intent to return, leaving the door open for future litigation on that point.
