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BRUHN v. COMMONWEALTH


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BRUHN

v.

COMMONWEALTH


APRIL 24, 2001

Record No. 0818-00-2

Present: Judges Elder, Annunziata and Humphreys

Argued at Richmond, Virginia

CHRISTOPHER BRUHN

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY

George F. Tidey, Judge


OPINION BY JUDGE ROSEMARIE ANNUNZIATA

John G. Douglass (James S. Yoffy; T.C. Williams
School of Law; Brenner, Evans & Yoffy, on briefs), for
appellant.

Amy L. Marshall, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for appellee.

The appellant, Christopher Bruhn, appeals his
conviction for grand larceny, in violation of Code
? 18.2-95. Bruhn contends: (1) the evidence was
insufficient to support a conviction for grand larceny because it
failed to show the victim ever possessed the alleged stolen
property; (2) proof of the crime of embezzlement is insufficient
to sustain a conviction under an indictment for grand larceny of
United States currency; (3) the evidence was insufficient to
prove the crime of embezzlement; and (4) the Commonwealth failed
to establish venue. For the following reasons, we reverse.

I.

BACKGROUND

On appeal, we view the evidence and all
reasonable inferences fairly deducible therefrom, in the light
most favorable to the Commonwealth. Cressell v. Commonwealth,
32 Va. App. 744, 763-64, 531 S.E.2d 1, 10 (2000). During the
first few months of 1999, Bruhn was employed by Old World
Cabinetry, a business located in Hanover County and owned by
Thomas Marzeros. Old World Cabinetry principally built and
installed cabinets in homes and mobile homes. Bruhn was
self-employed as a woodworker prior to his employment with Old
World.

In February 1999, Barbara Farley, an
acquaintance of Bruhn’s wife, contacted Bruhn at home and asked
him to refinish some antique furniture, as he had done for her in
the past. Mrs. Farley had never heard of Old World Cabinetry and
was not aware of Bruhn’s new employment there. However, Marzeros
accompanied Bruhn to Farley’s home when he went to pick up the
furniture, and Bruhn and Marzeros performed the refinishing work
together in the Old World workshop in Hanover County. They did
the work on Saturdays, outside the normal business hours of Old
World, because refinishing antiques was not part of Old World’s
regular business. Bruhn, with Marzeros’s knowledge, arranged for
Old World to purchase supplies to refinish Farley’s furniture, at
a cost of $82.55. After the work was completed, Bruhn delivered
the furniture to Farley at her Henrico County home. At that time,
Bruhn presented her with a bill for $519, a bill that Marzeros
had generated for Bruhn on a computer. The bill did not identify
a payee and made no mention of Old World Cabinetry. At Bruhn’s
request, Farley paid him with a check drawn on Crestar Bank and
made payable to "Chris Bruhn."

Marzeros allowed employees to do personal work
in his shop on their own time, but he did not allow "side
jobs" to be done for profit. When he asked Bruhn about the
payment from Farley, Bruhn told Marzeros that Farley was not at
home when he delivered the furniture. When Marzeros asked Bruhn a
few weeks later about getting payment from Farley, Bruhn told him
she was out of town. On a later occasion, Bruhn’s wife told
Marzeros that Farley had given the check to her at work, but she
had left it at work, an account Bruhn confirmed with Marzeros.

Marzeros contacted Farley several weeks after
the job was complete and requested payment. He learned that
Farley had paid Bruhn directly. Marzeros telephoned Bruhn about
the matter and tape-recorded the conversation. During the phone
call, Bruhn told Marzeros that he had the check from Farley and
would give it to Marzeros.
[1] Bruhn never did so. In April
1999, Marzeros terminated Bruhn for business reasons.

On February 2, 2000, Bruhn was tried under an
indictment charging that Bruhn did "take, steal and carry
away property, namely, United States currency, belonging to Old
World Cabin[e]try, valued at $200.00 or more, with the intent to
permanently deprive the owner of the value thereof, in violation
of Virginia Code ? 18.2-95." At the close of the
Commonwealth’s case, defense counsel made a motion to strike the
Commonwealth’s evidence. In addition, counsel argued that the
Commonwealth had failed to establish venue in Henrico County,
noting that the only thing Bruhn obtained in Henrico County was a
check payable to himself and that there was no evidence that
Bruhn ever obtained any "currency" –- the property
identified in the indictment –- in Henrico County. The trial
court denied the motions. Thereafter, Bruhn testified and called
several witnesses. At the conclusion of all the evidence, defense
counsel renewed the venue objection and renewed the motion to
strike the Commonwealth’s evidence. The trial court denied the
motions and found Bruhn guilty of grand larceny.

Before sentencing, Bruhn filed a motion to set
aside the verdict. In that motion, Bruhn argued that larceny is a
crime against possession which cannot be sustained absent proof
that the victim possessed the property alleged to have been
stolen. During oral argument on the motion, the Commonwealth
argued that the evidence at trial proved embezzlement and that
the embezzlement statute, Code ? 18.2-111, "states
that embezzlement shall be deemed larceny." The trial court
denied the motion to set aside the verdict, stating, "I
think the offense was proved."

II.

ANALYSIS

A.

Sufficiency of the Evidence
to

Support a Grand Larceny
Conviction

The Commonwealth charged Bruhn with grand
larceny, which Code ? 18.2-95(ii) defines as "simple
larceny not from the person of another of goods and chattels of
the value of $200 or more." In Virginia, larceny is defined
by its elements at common law as, "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." Jones v.
Commonwealth
, 3 Va. App. 295, 300, 349 S.E.2d 414, 417-18
(1986). "’[I]n every larceny there must be an actual taking,
or severance of the goods from the possession of the
owner.’" Id. at 301, 349 S.E.2d at 418 (citation
omitted); see also Maye v. Commonwealth, 213 Va.
48, 49, 189 S.E.2d 350, 351 (1972) (larceny requires
"trespassory" taking); Gwaltney v. Commonwealth,
19 Va. App. 468, 474, 452 S.E.2d 687, 691 (1995) (larceny
involves "an unlawful taking by trespass").

In this case, the Commonwealth alleges the
property stolen by Bruhn was the right to receive the $519
payment that Farley owed in exchange for refinishing her
furniture. The Commonwealth contends that the payment was owed to
Old World, not Bruhn. Even assuming the Commonwealth’s contention
is correct, because Bruhn never turned the funds over to his
employer, Old World never obtained possession of the money. A
larceny was, therefore, not committed. See Lund v.
Commonwealth
, 217 Va. 688, 691-92, 232 S.E.2d 745, 748 (1977)
(holding that larceny involves "a taking and carrying away
of a certain concrete article of personal property" and does
not apply to, e.g., labor, services, or the use of a computer).
Furthermore, were Bruhn found to have wrongfully taken Old
World’s right to payment, an intangible cannot be the subject of
larceny under Code ? 18.2-95. Id.

B.

Proof of Embezzlement to
Support Grand Larceny Conviction

The Commonwealth argues in the alternative
that, if Bruhn’s retention of the funds does not constitute
larceny, then it constitutes embezzlement, and that proof of
embezzlement is sufficient to sustain a conviction on an
indictment charging Bruhn with larceny.
[2] Assuming, without deciding, Bruhn committed
embezzlement, we hold that proof of embezzlement does not support
a conviction under an indictment alleging larceny. Embezzlement
is prohibited under Code ? 18.2-111. Prior to its amendment
in 1994, Code ? 18.2-111 explicitly allowed the
Commonwealth to indict for simple larceny and obtain a conviction
on that indictment by proving embezzlement at trial. The pre-1994
statute provided that one who committed the elements of
embezzlement "shall be deemed guilty of larceny thereof, may
be indicted as for larceny, and proof of embezzlement shall be
sufficient to sustain the charge." Code ? 18.2-111
(1994). Upon demand by the defendant, the statute also required
the Commonwealth elect a specific charge upon which to proceed by
filing a written statement of "the statute [it] intends to
rely upon to ask for conviction." Code ? 18.2-111
(1994).

In 1994, the General Assembly amended the
statute and removed the language which permitted a defendant to
be "indicted as for larceny" and further eliminated the
phrase which made proof of embezzlement "sufficient to
sustain" a larceny charge. The amendment also eliminated the
provision requiring the Commonwealth to elect the particular
larceny statute upon which it sought conviction. Because
"[l]egislative amendments are presumed as intended to effect
a change in the law," Shaw v. Commonwealth, 9 Va.
App. 331, 334, 387 S.E.2d 792, 794 (1990), we conclude that by
eliminating these provisions, the General Assembly intended to
change the law and that proof of embezzlement is no longer
sufficient to sustain a larceny charge.

Although the current version of Code ?
18.2-111 provides that "embezzlement shall be deemed
larceny," the language must be construed within its context,
which pertains to the penalty to be imposed upon conviction for
embezzlement. The statute classifies embezzlement as a larceny
crime and provides for punishment according to the larceny
statutes. See Davis v. Commonwealth, 14 Va. App.
709, 713, 419 S.E.2d 285, 288 (1992) (noting that similar
provision in Code ? 18.2-108 which provides that receipt of
stolen property shall be "deemed" larceny "serves
the purpose of defining the parameters of punishment").
Therefore, assuming, without deciding, Bruhn committed
embezzlement, proof of embezzlement would not support a
conviction under an indictment alleging larceny. See Baker
v. Commonwealth
, 225 Va. 192, 194-95, 300 S.E.2d 788, 789
(1983) ("Where . . . the Commonwealth
elects to prosecute a defendant for a specific category of
larceny, and no other, its case must either prevail or fall upon
that election. The Commonwealth cannot retrospectively argue that
[a defendant] should be convicted of a crime for which he was not
prosecuted . . . .").

Because the Commonwealth failed to prove Bruhn
committed grand larceny, in violation of Code ? 18.2-95, we
reverse the

conviction and dismiss the indictment.[3]

Reversed and dismissed.

FOOTNOTES:

[1] MARZEROS: [D]id Dorothy [Bruhn's
wife] get that check?

BRUHN: Yeah, it’s here.

MARZEROS: Okay, you’ve got that check from
Barbara [Farley]?

BRUHN: Uh-huh.

MARZEROS: Okay. Um, when can I hook up with you
to pick that check out?

BRUHN: I can do it Friday.

[2] To prove embezzlement, the
Commonwealth must prove Bruhn "wrongfully appropriated to
[his] use or benefit, with the intent to deprive the owner
thereof, the property entrusted to [him] by virtue of [his] employment or office." Waymack v. Commonwealth, 4 Va.
App. 547, 549, 358 S.E.2d 765, 766 (1987).

[3] Because we reverse on the grounds discussed above, we
need not address Bruhn’s contentions with regard to venue and the
sufficiency of the evidence to sustain an embezzlement
conviction.

 

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