Virginia Larceny With Intent to Sell Defense Attorney

Quick answer: Larceny with intent to sell or distribute, Va. Code § 18.2-108.01, is the felony Virginia prosecutors add when they believe a theft was for resale rather than personal use. Stealing property worth $1,000 or more with the intent to sell it carries two to 20 years in prison, with no misdemeanor alternative, and it is charged on top of grand larceny, not instead of it. Stealing more than one of the same item is treated as evidence of intent to sell. These cases are defended on intent, on value, and on the wide gap between what the statute presumes and what the Commonwealth can actually prove. Attorney Sheryl Shane has defended felony theft charges in Fairfax and across Northern Virginia for more than 30 years. Call (703) 582-8119 for a confidential review.

The Charge That Doubles a Theft Case

Most people charged under § 18.2-108.01 came into the courthouse expecting one theft count and left with two. The statute creates a separate crime, and it says so in its own text: a violation is a separate and distinct offense. The Court of Appeals of Virginia has held that grand larceny and larceny with intent to sell can both be charged and both be punished for the same property, because the General Assembly plainly intended them to be punished separately. One incident, two felonies.

The section has two halves. Subsection A is the theft: larceny of property worth $1,000 or more with the intent to sell or distribute it. Subsection B is the aftermarket: selling, attempting to sell, or possessing with intent to sell stolen property with an aggregate value of $1,000 or more, where the person knew or should have known it was stolen. Subsection A is the charge that lands on the shoplifter; subsection B is the charge that lands on the person who buys from the shoplifter, holds the goods, or lists them online.

Penalties, and the Floor That Grand Larceny Does Not Have

• Subsection A, larceny with intent to sell. A felony punishable by confinement in a state correctional facility for not less than two nor more than 20 years.
• Subsection B, selling or possessing stolen property with intent to sell. A Class 5 felony.

The subsection A range is what makes this statute different from every other theft charge on this site. Grand larceny gives the judge or jury discretion to impose up to 12 months in jail and a fine instead of prison. Subsection A does not. Its floor is two years, and its range starts higher than grand larceny’s. In practice that means a first-time shoplifter who took several of the same item faces a charge with a sentencing range worse than the underlying theft, and the way to reduce that exposure is to defeat the count, not to hope for leniency within it.

“More Than One of the Same Product”

The statute’s most powerful sentence is also its most misunderstood. It says that the larceny of more than one item of the same product is prima facie evidence of intent to sell or distribute. Prosecutors read that as a rule: two of anything means resale. Loss-prevention officers write it into their reports. Warrants get sworn on it.

It is not a rule. The Court of Appeals has explained that prima facie evidence in this statute is a permissive inference, not a mandatory presumption. The fact finder may draw the inference from the quantity; it does not have to. That distinction is where these cases are fought. Two of the same shirt in different sizes, a multipack of razors, three phone chargers for a household, a case of the same energy drink: each is “more than one item of the same product” and none of it proves an intent to sell. The Commonwealth must still convince the judge or jury, beyond a reasonable doubt, that resale was the purpose.

The appellate cases show both sides of the line. A conviction was reversed where there was simply no evidence the accused intended to sell what was taken; the quantity alone was not enough on that record. Another was upheld where the number of cell phones stolen was plainly more than anyone could use personally, and the court found the resale inference reasonable. The difference was the facts around the quantity, not the quantity itself.

What the Commonwealth Has to Prove

For subsection A, every element of grand larceny plus one more:

• A larceny. A wrongful taking, without consent, with intent to permanently deprive the owner. If the underlying theft fails, the intent-to-sell count fails with it.
• Value of $1,000 or more. The same fair-market-value rules that govern grand larceny govern here. Convictions under this section have been reversed where the Commonwealth never proved what the stolen copper pipe was worth, and where the victim never testified to value and an insurance claim was offered instead.
• Intent to sell or distribute. The added element, and the reason the charge exists. It must be proven as to the specific property in the specific count, not assumed from a person’s history or from a different incident. Where the evidence showed a companion stole multiple packages of three products, the resale inference applied to that theft; it did not carry over to a separate incident with no evidence of intent.

For subsection B, the elements shift: the property was stolen, the accused sold or tried to sell it or possessed it intending to, the aggregate value was $1,000 or more, and the accused knew or should have known it was stolen. That last element reaches negligence, which is broader than the actual-knowledge standard for ordinary receiving of stolen goods. It is also the element most often contested: a price that was low but not absurd, a seller who seemed legitimate, and goods that looked ordinary are all arguments that a reasonable person would not have known.

Two Subsections, Two Different Crimes

Subsection B is not a lesser-included offense of subsection A. The Court of Appeals reversed a conviction where the accused was indicted under A, for theft with intent to sell, and convicted under B, for selling stolen property, because proving the theft does not prove a sale and the two offenses have different elements. If the Commonwealth indicts under the wrong half of the statute, that is a defense, not a technicality. The charging document controls what the Commonwealth has to prove and what the accused can be convicted of.

Who Gets Charged

This is the statute behind organized-retail-theft prosecutions, but the people charged under it are rarely organizers.

• The shopper who took multiples. The quantity inference turns an ordinary concealment case at a big-box store into a two-to-20-year felony.
• The driver. A person who drove a companion to a store and let stolen goods into the car has been convicted under this section as a principal, where the evidence showed knowledge of the goods and their value.
• The reseller. Anyone who lists stolen goods online, sells to a pawn shop or a scrapyard, or holds inventory for someone else is a subsection B target.
• The person who sold their own property. Convictions for both grand larceny and larceny with intent to sell were reversed where the accused sold items from a family home that the accused jointly owned. Selling what is partly yours is a civil dispute, not a felony.
• The firearm case. Stealing a gun and selling it produces larceny of a firearm, larceny with intent to sell, and a separate charge for the sale, all from one transaction.

What a Conviction Costs

• A felony floor. A subsection A conviction carries a minimum of two years in a state correctional facility. There is no misdemeanor door.
• Stacked exposure. Because the count is separate from grand larceny, a single incident can produce consecutive felony sentences. Whether they run together is a sentencing argument, not a right.
• A crime of dishonesty with a resale label. Employers, licensing boards, and clearance adjudicators already treat theft as a crime of moral turpitude. A conviction that says the theft was a business is worse.
• Immigration. Theft offenses are treated as crimes involving moral turpitude, and a felony with a sentence range this long raises the stakes further for non-citizens. Do not accept any plea without immigration advice.
• Restitution and forfeiture. Restitution follows the property; resale cases also draw asset and proceeds questions that ordinary theft cases do not.

How These Cases Are Defended

• Rebut the inference. Quantity is a starting point for the fact finder, not a finish line. Household use, gifts, a family of five, a bulk-buying habit, and the absence of any sale, listing, buyer, or resale contact all cut against intent to sell.
• Attack the value. Same fight as grand larceny, same reversals. If the Commonwealth cannot prove $1,000 in fair market value, both counts fall.
• Attack the underlying larceny. No intent to steal, no taking, or a claim of right defeats subsection A entirely, because there is no larceny to attach intent to.
• Hold them to the indictment. Charged under A, convicted under B is a reversal. Charged for one incident, convicted on evidence from another is a reversal.
• Knew or should have known. For subsection B, the defense is that a reasonable person in the accused’s position would not have known the goods were stolen.
• Negotiate the count away. Because the intent-to-sell count carries the worst range, resolving a case often means trading it for a plea to the underlying theft, or to a misdemeanor, and that trade is easier to make when the intent evidence is thin.

What To Do Right Now

• Do not explain the quantity to police or loss prevention. “They were for my family” sounds innocent and becomes an admission that you took them.
• Do not sell, list, return, or move anything connected to the accusation.
• Preserve your own records: receipts, order histories, and messages that show ordinary purchasing, if the case involves goods you say you bought legitimately.
• Do not sign store paperwork or pay a civil demand before a lawyer reviews it.
• Call a defense lawyer before your first court date.

Frequently Asked Questions

What is larceny with intent to sell in Virginia?

Under Va. Code 18.2-108.01, stealing property worth $1,000 or more with the intent to sell or distribute it is a separate felony punishable by two to 20 years in prison. Stealing more than one item of the same product is treated as prima facie evidence of intent to sell, though that inference can be rebutted.

Can I be charged with both grand larceny and larceny with intent to sell for the same theft?

Yes. The statute states that a violation is a separate and distinct offense, and the Court of Appeals of Virginia has held that the two crimes can be punished separately for the same property without violating double jeopardy. That is why one shoplifting incident can produce two felony counts.

Is there a misdemeanor option for larceny with intent to sell?

No. Unlike grand larceny, which lets the judge or jury impose up to 12 months in jail instead of a prison term, Va. Code 18.2-108.01(A) sets a minimum of two years in a state correctional facility. Reducing exposure in these cases means defeating the intent-to-sell element or the value element, or negotiating the count away.

What if I only sold or held the property and did not steal it?

That is a different offense under subsection B of the same statute: selling, attempting to sell, or possessing with intent to sell stolen property worth $1,000 or more, where you knew or should have known it was stolen, is a Class 5 felony. It is not a lesser-included offense of the theft charge, and a person charged under one subsection cannot simply be convicted under the other.

Talk to a Fairfax Felony Theft Defense Lawyer Today

An intent-to-sell count turns a manageable theft case into one with a two-year floor, and the Commonwealth often adds it on nothing more than a number. That number can be explained, and the rest of the case can be fought on the same ground as any larceny. Attorney Sheryl Shane has defended larceny and theft felonies in Fairfax County and across Northern Virginia for more than 30 years, from the office across the street from the Fairfax County courthouse. Call (703) 582-8119 for a confidential consultation.