State v. White

WILNER, Judge. The issue before us is whether the “single larceny doctrine” is alive and well in Maryland under the Consolidated Theft Statute (Maryland Code (1957; 1996 Repl.Vol.) §§ 340—345 of Article 27), enacted by the General Assembly in 1978. The single larceny doctrine addresses the question framed by us 104 years ago in State v. Warren, 77 Md. 121, 122 , 26 A. 500 (1893): “Does the stealing of several articles of property at the same time, belonging to several owners, constitute one ¹⁸¹ offense, or as many separate offenses as there are different owners of the property stolen?” In Warren , we concluded that such stealing could constitute but one offense. We do not believe that the Legislature intended to change that result, or did change it, in enacting the Consolidated Theft Statute.

FACTUAL BACKGROUND The relevant facts in this case are not in substantial dispute. Carla Price and Patricia McNabb were physical education teachers at Western Vocational Technical High School in Baltimore County. They shared an office with two other teachers. On August 17, 1995, Ms. Price had a small portable television set in the office, sitting on top of a file cabinet.

Just before 8:00 that morning, Ms. McNabb left a canvas bag in the office. The bag was decorated with a Baltimore County Teachers logo and contained some of her papers. When Ms. McNabb returned around noontime, she noticed that her bag was missing and the papers contained in it had been thrown into a box. The television set also was missing.

Neither Ms. Price nor Ms. McNabb knew petitioner, Richard White, or had given him permission to be in the office or to take their property. Around noon, Detective Edmond Bradley noticed petitioner standing on a corner some four blocks from the school, holding a small television set and turning it in his hands as if to see how it worked. He had a canvas bag between his feet. Bradley made a U-turn and approached petitioner, by which time petitioner had placed the television set in the bag.

Bradley identified himself and asked petitioner for identification. He gave his name but had no identification. Perhaps because the canvas bag had a distinctive Baltimore County Teachers logo on it (or perhaps, as was revealed at the sentencing proceeding, because Detective Bradley knew petitioner and was aware of prior incidents involving him), Bradley called for assistance and dispatched another officer to the nearby school to see if a bag or television set was reported missing. When the officer radioed back that those items had ¹⁸² been reported missing, petitioner was arrested.

The two teachers identified the items found in petitioner’s possession. On those facts, petitioner was charged in the District Court with separate counts of stealing a canvas bag from Ms. McNabb, having a value of $300 or less (Count I), stealing a television set from Ms. Price, having a value of $300 or less (Count II), and trespassing on posted school property (Count III). Upon his prayer for jury trial, the case was transferred to the Circuit Court for Baltimore County, where he was convicted on all three counts. Without objection from petitioner, the court imposed consecutive sentences of 18 months on each of the misdemeanor theft convictions and a concurrent 60-day sentence for the trespassing.

In an unreported opinion, the Court of Special Appeals applied the “single larceny rule” and merged the two theft convictions but otherwise affirmed the judgments. We granted the State’s petition for certiorari to consider whether the Court of Special Appeals erred in applying the doctrine and merging the two convictions. We shall hold that it did not and therefore shall affirm the judgment of that court. DISCUSSION The single larceny doctrine has arisen principally in three contexts: (1) whether a count in a charging document alleging that the defendant stole the property of several persons at the same time charges more than one offense and is therefore duplicitous; (2) whether a prosecution, conviction, or sentencing for stealing the property of one person bars, under double jeopardy principles, the prosecution, conviction, or sentencing for having stolen the property of another person at the same time; and (3) whether, when the property of different persons is stolen at the same time, the values of the separate items of property may be aggregated to raise the grade of the offense or the severity of the punishment, to the extent that either is dependent on the value of the property taken.

See Daniel H. White, Annotation, Single or Separate Larceny Predicated upon Stealing Property from Different Owners at the Same Time, 37 A.L.R.3d 1407 (1971). Accord ¹⁸³ ing to the annotation, “[t]he overwhelming majority of jurisdictions follow generally the so-called ‘single larceny doctrine’; that is, that the taking of property belonging to different owners at the same time and place constitutes but one larceny,” id. at 1409 , and that, “[wjhile several jurisdictions at one time followed the separate larcenies doctrine, under which there was a distinct larceny as to the property of each person, most have abandoned that position in favor of the single larceny doctrine.” Id. at 1410 . Relying to a large extent on the pronouncements of this Court in State v. Warren, supra, 77 Md. 121 , 26 A. 500 , the author notes: “Various rationales have been propounded in support of this position, perhaps the most common one being that such taking is one offense because the act of taking is one continuous act or transaction, and since the gist of the offense is the felonious taking of property, the legal quality of the act is not affected by the fact that the property stolen belonged to different persons. Other rationales supporting the rule are concerned with the harshness of the punishment which might result from a contrary holding, or with the unconstitutionality of the double jeopardy to which a defendant would be subjected under a contrary decision.” White, supra, at 1409-10 (footnotes omitted).

The case law generally and the limited case law in Maryland support the conclusions reached by the author. Early consideration of the single larceny doctrine, by some of the 17th and 18th Century English writers, was in the context of aggregating what would otherwise be several petty larcenies (those involving less than 12 pence) into a single grand larceny, i.e., the third category noted above. Hale, for example, notes: “If A. steal goods of B. to the value of six-pence, and at another time to the value of eight-pence, so that all put together exceed the value of twelve-pence, tho none apart amount to twelve-pence, yet this is held grand larciny, if he be indicted of them altogether [citations omitted]. ¹⁸⁴ But if the goods be stolen at several times from several persons, and each a-part under value, as from A. four-pence, from B. six-pence, from C. ten pence, these are separate petit larcinies, and tho contained in the same indictment make not grand larciny. But it seems to me, that if at the same time he steals goods of A. of the value of six-pence, goods of B. of the value of six-pence, and of C. to the value of six-pence, being perchance in one bundle, or upon a table, or in one shop, this is grand larciny, because it was one entire felony done at the same time, tho the persons had several properties, and therefore, if in one indictment, they make grand larci-ny.” 1 Sir Matthew Hale, Historia Placitorum Coronae 531 (1st Amer.

Ed. 1847). See also 2 Edward Hyde East, A TREATISE ON THE PLEAS OF THE CROWN 740-41 (1806) (noting that “if the property of several persons, lying together in one bundle or chest, or even in one house, be stolen together at one time ... the value of all may be put together so as to make it grand larceny ... for it is one entire felony”). Hawkins, speaking also in the context of aggregation, stressed the requisite that the several takings occur at the same time: “[I]t seems to be settled, that the value of the property stolen must not only be, in the whole, of such an amount as the law requires to constitute grand larceny, but that the stealing must be to that amount at one and the same particular time; for things stolen at different times are, in fact, different acts of stealing; and no number of petit larcenies will amount to a grand larceny____” 1 William Hawkins, A Treatise of the Pleas of the Crown 150-51 (8th ed. 1824). As noted, we first addressed the issue in State v. Warren.

The question there arose principally in the first context mentioned above, whether a count in an indictment charging the defendant with stealing, at the same time, several sums of money belonging to different owners constituted the duplicitous joinder of two or more distinct and separate offenses. Warren was charged with two counts of theft, each accusing ¹⁸⁵ him of stealing money belonging to one person, a pocket book belonging to a second person, and a pipe belonging to a third person. The trial court quashed the indictment on the ground that it was duplicitous, but we reversed. Although recognizing that there was then some conflict of opinion on the subject, this Court, relying, in part, on Hale and East, and “in fact [on] all the books, ancient and modern, in which the question has been considered,” stated at 77 Md. at 122-23 , 26 A. at 500 : “Upon principle, however, it would seem clear that the stealing of several articles at the same time, whether belonging to the same person, or to several persons, constituted but one offense.

It is but one offense, because the act is one continuous act—the same transaction; and the gist of the offense being the felonious taking of the property, we do not see how the legal quality of the act is in any manner affected by the fact, that the property stolen, instead of belonging to one person is the several property of different persons____ And, although it is necessary to set out in the indictment the ownership of the property, this the law requires in order that the prisoner may be informed as to the precise nature of the offense charged against him; and further, to enable him to plead a former conviction or acquittal, in bar of a subsequent prosecution for the same offense. So, it seems clear to us on principle, that the taking of several articles of property under such circumstances constitutes but one felony.” (Emphasis added.) Upon that premise, we further concluded that the separate values of the individual items of property stolen may be aggregated in determining whether the offense constituted grand or petty larceny, noting that at common law “it was always held that where the aggregate value of the several articles stolen amounted to 12 d., whether belonging to the same person or to several persons, if taken at the same time, constituted grand larceny ... because it was one felony.” Id. at 124 , 26 A. 500 . We thus dealt with the issue in the third context as well. ¹⁸⁶ The precise issue of whether the taking of articles belonging to different persons at the same time has not been directly addressed in Maryland since Warren. In Horsey v. State, 225 Md. 80 , 169 A.2d 457 (1961), we held that, when a person takes articles from the same owner at different times, a trial court may properly find that “the separate takings were pursuant to a common scheme or intent” and that, “if they are, the fact that the takings occur on different occasions does not establish that they are separate crimes.” Id. at 83 , 169 A.2d at 459 .

That was also the principle applied by the Court of Special Appeals in Govostis v. State, 74 Md.App. 457 , 538 A.2d 338 (1988). The defendant there stole the victim’s car and his clothing pursuant to a common scheme, leading the court to conclude that “there was but one criminal scheme and one criminal intent, thus one theft.” Id. at 471 , 538 A.2d at 345 . On that basis, the court vacated a separate conviction for the stealing of the victim’s clothes. Those cases obviously represent a different application of the single larceny doctrine, one that constitutes at least an extension of, if not a departure from, the early common law view.

In Bane v. State, 327 Md. 305 , 609 A.2d 313 (1992), we commented on the doctrine in a footnote, although the case did not directly involve the doctrine, at least at the appellate level. The defendant there was charged with storehouse breaking and stealing, and the issue was whether separate convictions for that offense may be sustained “when but one breaking occurred, involving, however, two separate businesses, operated from offices located in the same budding and separated from each other only by a hallway and unlocked and open doors.” Id. at 306-07 , 609 A.2d at 313-14 . 1 As a preliminary matter, we held that the “unit of prosecution” under the storehouse breaking statute was “the individual storehouse ¹⁸⁷ broken.” Id. at 309 , 609 A.2d at 315 . That was not really the issue in doubt, however. The question was whether there could be more than one prosecution when the defendant, having broken into the exterior building, then entered more than one business unit located within the building—whether, in other words, the interior business units constituted separate storehouses for purposes of the breaking statute.

Bane acknowledged that separate storehouses could exist within a single building but urged that, in the particular case, that was not the situation, given the physical layout of the two offices and the fact that they were not protected by any closed doors. His position was that there was but one storehouse. The footnote in which we discussed the single larceny doctrine was in connection with that assertion. We noted that, in the Court of Special Appeals, the State had conceded that there was “a break-in of a single storehouse” and that Bane, in turn, had devoted a considerable part of his brief to a discussion of the single larceny doctrine.

We said, in that regard: “That rule provides that ‘the theft of several articles at the same time constitutes but one offense although such articles belong to several owners.’ People v. Bauer, 1 Cal.3d 368 , 82 Cal.Rptr. 357, 363 , 461 P.2d 637, 643 (1969). Although this Court has never directly adopted the single larceny rule, in State v. Warren, 77 Md. 121, 122-124 , 26 A. 500 (1893), we recognized that, ‘upon principle ... it would seem clear that the stealing of several articles at the same time, whether belonging to the same person, or to several persons, constituted but one offense.’ The Court of Special Appeals, on the other hand, relying on Warren , expressly adopted the single larceny rule in Gavostis [Govostis] v. State, 74 Md. App. 457, 471 , 538 A.2d 338, 344 (1988). The single larceny rule has been adopted by the majority of courts that have been presented with the issue [citations omitted]. Since the issue in this case is the proper unit of prosecution, a point on which the State and the petitioner certainly agree, we need not address the single larceny rule.

If there was only one breaking, necessarily, there could be ¹⁸⁸ but one conviction, whatever the amount of property taken and no matter where it was taken. Conversely, if more than one breaking occurred, then both convictions could be sustained, so long as property was taken in both breakings.” Id. at 311 n. 4, 609 A.2d at 316 n. 4. The balance of our opinion in Bane was devoted to the issue actually presented, as to which we held that “[u]nless it is objectively apparent that there are two or more storehouses in the building into which the defendant breaks, that one breaking can only constitute one violation of the statute.” Id. at 316 , 609 A.2d at 318 . In that regard, we concluded that, when dealing with separate offices or units within a single building, only if the separate offices are “readily identifiable as such” as “to make it objectively apparent that they are separate” can they be regarded as separate storehouses.

Id. The issue considered in Bane has arisen, in other jurisdictions, in the context of the single larceny doctrine, but it is not before us in this case. The two items taken by White were taken from a single office in which there were no evident internal separations and no evident indications that the items belonged to different persons. As we observed in Bane and as stated in the A.L.R. annotation, the overwhelming majority of States have adopted the single larceny doctrine.

In State v. Stoops, 4 Kan.App.2d 130, 603 P.2d 221, 226 (1979), the Kansas court noted that, as of 1979, 34 out of the 35 States that had considered the question had adopted the doctrine. The doctrine itself is easily defined; we defined it well in Warren . As pointed out in Richardson v. Commonwealth, 25 Va.App. 491 , 489 S.E.2d 697, 698 (1997), however, although “[t]he principles are easily stated and understood ... application of the doctrine becomes problematic when applied to the infinite variety of circumstances that can arise.” 2 The doctrine is