THE CIRCUIT COURT OF CHESTERFIELD COUNTY Steven C. McCallum,
Martelino, Jr., for appellant.
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.
Present: Judges Beales, Alston and Senior Judge Haley Argued
at Richmond, Virginia
W. HALEY, JR. JUDGE.
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.
Commonwealth proffered evidence at the hearing on
appellant's conditional guilty plea.
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.
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.
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