WHAT IS EMBEZZLEMENT IN VIRGINIA?
Virginia Code § 18.2–111 punishes a criminal defendant for the crime of embezzlement. The relevant Virginia statute states that:
If any person wrongfully and fraudulently use, dispose of, conceal or embezzle any money, bill, note, check, order, draft, bond, receipt, bill of lading or any other personal property, tangible or intangible, which he shall have received for another or for his employer, principal or bailor, or by virtue of his office, trust, or employment, or which shall have been entrusted or delivered to him by another or by any court, corporation or company, he shall be guilty of embezzlement. Va. Code § 18.2–111
WHAT DOES THE PROSECUTOR HAVE TO PROVE IF THEY WANT TO CONVICT ME OF EMBEZZLEMENT?
For a prosecutor (or Commonwealth Attorney) to prove the elements of embezzlement, the Commonwealth must prove that the accused “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.” Nestle v. Commonwealth, 22 Va.App. 336, 341, 470 S.E.2d 133, 136 (1996) (citing Waymack v. Commonwealth, 4 Va.App. 547, 549, 358 S.E.2d 765, 766 (1987)).
WHAT DOES IT MEAN TO WRONGFULLY APPROPRIATE OR CONVERT PROPERTY OF ANOTHER?
A defendant “wrongfully appropriates, or converts, the property of another” when he exercises “unauthorized and wrongful … dominion and control over [it], to the exclusion of or inconsistent with [the] rights of the owner. ” Id. (quoting Black’s Law Dictionary 300 (5th ed.1979)). However, “[p]roof of the misappropriation of property entrusted to the possession of the accused is insufficient, standing alone, to prove that the accused was the embezzler.” Zoretic v. Commonwealth, 13 Va.App. 241, 245, 409 S.E.2d 832, 834 (1991); see also Smith v. Commonwealth, 222 Va. 646, 651, 283 S.E.2d 209, 211 (1981).
WHAT IF I JUST FORGOT TO RETURN SOMEONE’S PROPERTY? IS THAT EMBEZZLEMENT?
The mere failure to return property or account for a trust fund “does not necessarily constitute embezzlement,” but failure to perform an absolute duty to return the property or refusal to account or pay over on demand “constitutes embezzlement, or is, at least, evidence from which a fraudulent conversion may be inferred.” Stegall v. Commonwealth, 208 Va. 719, 722, 160 S.E.2d 566, 567 (1968) (quoting **894 29A C.J.S. Embezzlement § 11, at 27, 28) (emphasis omitted).
DOES THE PROSECUTOR NEED TO PROVE I STOLE SOMETHING BEYOND A REASONABLE DOUBT?
To constitute embezzlement, fraudulent intent to deprive the owner of his property must be proved beyond a reasonable doubt. Wadley v. Commonwealth, 98 Va. 803, 807, 35 S.E. 452, 455 (1900). Proof of intent can be found in the words or conduct of the accused. Bell v. Commonwealth, 11 Va.App. 530, 533, 399 S.E.2d 450, 452 (1991). Intent is often proven by circumstantial evidence. Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673–74 (1995) (“Intent is a state of mind that may be proved by an accused’s acts or by his statements and that may be shown by circumstantial evidence.”).
WHAT CONSTITUTES A FELONY PETIT LARCENY IN VIRGINIA? AND WHAT IS THE PUNISHMENT?
One may be convicted of a felony for a misdemeanor larceny offense, if that person has been previously 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.
These crimes are class 6 felonies and may be punishable by up to five years of incarceration.
WHAT IS CIRCUMSTANTIAL EVIDENCE?
“Circumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it is sufficiently convincing.” Stamper v. Commonwealth, 220 Va. 260, 272, 257 S.E.2d 808, 817 (1979). However, proof by circumstantial evidence “is not sufficient … if it engenders only a suspicion or even a probability of guilt. Conviction cannot rest upon conjecture.” Littlejohn v. Commonwealth, 24 Va.App. 401, 414, 482 S.E.2d 853, 859 (1997) (citing Hyde v. Commonwealth, 217 Va. 950, 955, 234 S.E.2d 74, 78 (1977)).
CAN A PROSECUTOR USE CIRCUMSTANTIAL EVIDENCE IN MY CASE?
Circumstantial evidence “may establish the elements of a crime” but it must “exclude every reasonable hypothesis of innocence.” Welshman v. Commonwealth, 28 Va.App. 20, 36, 502 S.E.2d 122, 130 (1998) (en banc). “The Commonwealth is only required to exclude hypotheses of innocence that flow from the evidence.” Fordham v. Commonwealth, 13 Va.App. 235, 239, 409 S.E.2d 829, 831 (1991). The statement that circumstantial evidence must exclude every reasonable theory of innocence is simply another way of saying that the Commonwealth has the burden of proof beyond a reasonable doubt. Kelly v. Commonwealth, 41 Va.App. 250, 258, 584 S.E.2d 444, 447 (2003) (en banc); see also Cox v. Commonwealth, 140 Va. 513, 517, 125 S.E. 139, 141 (1924).