Present: All the Justices
COMMONWEALTH OF VIRGINIA
OPINION BY
v. Record No. 020774 JUSTICE LAWRENCE L. KOONTZ, JR.
November 1, 2002
CHRISTOPHER BRUHN
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals of
Virginia correctly determined that, as a result of amendments
enacted in 1994 to Code § 18.2-111, proof of embezzlement, as
defined by that statute, will not sustain a conviction under an
indictment charging grand larceny under Code § 18.2-95.
BACKGROUND
We recount the facts in the light most favorable to the
Commonwealth, the party that prevailed at trial. Turner v.
Commonwealth, 259 Va. 645, 648, 529 S.E.2d 787, 789 (2000). In
February 1999, Barbara A. Farley contacted Christopher Bruhn and
asked him to refinish some antique furniture for her, as he had
done in the past. Farley was not aware that Bruhn had recently
become an employee of Thomas J. Marzeros, who operated under the
trade name of Old World Cabinetry. Although refinishing
antiques was not part of Marzeros’ regular business, he allowed
employees to do personal work in his shop on their own time, but
he did not allow them to do “side jobs” for profit.
Marzeros accompanied Bruhn to Farley’s home when Bruhn
picked up the furniture. Bruhn and Marzeros performed the
refinishing work together in Marzeros’ workshop outside normal
business hours. Bruhn, with Marzeros’ knowledge, purchased
supplies to refinish Farley’s furniture at a cost of $82.55 on
Old World Cabinetry’s account.
After the work was completed, Bruhn delivered the furniture
to Farley at her home. At that time, Bruhn presented her with a
bill for $519 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 payable to Bruhn personally.
Marzeros made repeated inquiries to Bruhn concerning the
payment due from Farley. Bruhn was evasive in his replies,
fabricating various stories about having failed to receive
payment from Farley or not having access to the payment.
Marzeros contacted Farley several weeks later to request payment
and learned that Farley had paid Bruhn directly. Marzeros
telephoned Bruhn about the matter and tape-recorded the
conversation. During the telephone call, Bruhn told Marzeros
that he had the check from Farley and would give it to Marzeros,
but Bruhn never did so.
On February 2, 2000, Bruhn was tried in a bench trial in
the Circuit Court of Henrico County under an indictment charging
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that he “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, Bruhn
moved to strike the Commonwealth’s evidence, contending that it
did not prove larceny. The circuit court denied the motion. At
the conclusion of all the evidence, defense counsel renewed the
motion to strike the Commonwealth’s evidence, which the circuit
court again denied. Bruhn was found guilty of grand larceny.
Before sentencing, Bruhn filed a motion to set aside the
verdict, contending that the Commonwealth failed to prove that
the victim possessed the allegedly stolen property, which is a
necessary element of larceny. In response, the Commonwealth
argued for the first time that the evidence at trial proved
embezzlement and that Code § 18.2-111 “states that embezzlement
shall be deemed larceny.” The circuit court denied the motion
to set aside the verdict, stating, “I think the offense was
proved.” Bruhn was sentenced to 12 months in jail with the
entire sentence suspended on condition of his good behavior for
three years.
Bruhn filed an appeal in the Court of Appeals, contending
that the evidence in his trial was not sufficient to prove
either grand larceny or embezzlement and that, even if the
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evidence would prove the latter offense, the Commonwealth could
not sustain an indictment for grand larceny upon proof of
embezzlement. A three-judge panel of the Court of Appeals
agreed with Bruhn, reversed his conviction, and dismissed the
indictment against him. Bruhn v. Commonwealth, 35 Va. App. 339,
346, 544 S.E.2d 895, 898 (2001). The Commonwealth sought a
rehearing en banc, which the Court of Appeals granted, staying
the mandate of the panel opinion. Bruhn v. Commonwealth, 35 Va.
App. 586, 546 S.E.2d 755 (2001).
Following argument before the Court of Appeals sitting en
banc, a majority of the Court reversed Bruhn’s conviction and
dismissed the indictment against him. The majority adopted the
reasoning of the three-judge panel that the evidence was
insufficient to support a conviction for grand larceny. Bruhn
v. Commonwealth, 37 Va. App. 537, 540, 559 S.E.2d 880, 882
(2002) (en banc). Addressing the Commonwealth’s contention that
Code § 18.2-111 permitted the Commonwealth to prove embezzlement
under an indictment charging larceny, the majority reasoned that
amendments to Code § 18.2-111 in 1994 altered the law in such a
way that the former practice of permitting the Commonwealth to
prove embezzlement under an indictment charging larceny was no
longer valid. Id. at 546-47, 559 S.E.2d at 884-85.
One judge dissented, contending that the 1994 amendments to
Code § 18.2-111 merely eliminated the requirement that the
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Commonwealth elect a statutory theory upon motion of the defense
where an indictment charged larceny. The dissent concluded that
the availability of a bill of particulars as the result of the
1975 enactment of Code § 19.2-230 had rendered this provision
unnecessary, and that the continued association of embezzlement
with larceny within the overall scheme of property crimes
permitted the Commonwealth to bring an indictment for the latter
offense where it intended to prove the former. Id. at 547-56,
559 S.E.2d at 885-90 (Bumgardner, J., dissenting). We awarded
the Commonwealth this appeal.
DISCUSSION
As did the majority of the Court of Appeals sitting en
banc, we also agree with the reasoning of the three-judge panel
that the evidence adduced at trial was insufficient to prove
grand larceny under the common law definition of that crime
because there was no proof of a trespassory taking. Maye v.
Commonwealth, 213 Va. 48, 49, 189 S.E.2d 350, 351 (1972).
Additionally, we will also assume, without deciding, that the
evidence previously recounted was sufficient to prove that Bruhn
was guilty of embezzlement. Accordingly, the sole issue of
concern here is whether the Court of Appeals erred in holding
that the Commonwealth is no longer permitted to sustain an
indictment for grand larceny by proving that the defendant
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committed embezzlement. We find no error in either the
reasoning or result of that judgment.
Unquestionably, the Commonwealth is correct that prior to
1994, Code § 18.2-111 expressly stated that one who committed
the acts constituting embezzlement “may be indicted as for
larceny, and proof of embezzlement shall be sufficient to
sustain the charge.” In addressing the crime of embezzlement
this way, the General Assembly recognized the long-standing
practice of permitting other unlawful takings, such as receiving
stolen goods and theft by false pretenses, to be charged as
larceny. See Pitsnogle v. Commonwealth, 91 Va. 808, 811, 22
S.E. 351, 352 (1895), and cases cited therein.
In 1994, however, the General Assembly amended Code § 18.2-
111 and deleted the language that permitted a defendant who had
committed embezzlement to be “indicted as for larceny.” The
amendments further eliminated the phrase that made proof of
embezzlement “sufficient to sustain the charge” of larceny and
the requirement that the Commonwealth elect, upon motion of the
defendant, the specific statutory theory of the crime of larceny
it intended to rely upon for a conviction. The first sentence
of the statute now provides that any person committing the
described acts “shall be guilty of embezzlement.” Code § 18.2-
111. The only reference to larceny in Code § 18.2-111 is in its
second sentence, which now states, “[e]mbezzlement shall be
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deemed larceny and upon conviction thereof, the person shall be
punished as provided in [the larceny code sections].”
We concur with the view expressed by the majority of the
Court of Appeals that these amendments were not merely intended
to eliminate “surplusage” from Code § 18.2-111 as the result of
the 1975 enactment of Code § 19.2-230 giving defendants the
right to request a bill of particulars. “As a general rule, a
presumption exists that a substantive change in law was intended
by an amendment to an existing statute.” Virginia-American
Water Co. v. Prince William County Service Authority, 246 Va.
509, 517, 436 S.E.2d 618, 622-23 (1993); see also Dale v. City
of Newport News, 243 Va. 48, 51, 412 S.E.2d 701, 702 (1992);
Richmond v. Sutherland, 114 Va. 688, 693, 77 S.E. 470, 472
(1913). Thus, in construing a statute that has been amended by
the General Assembly, we presume that the legislature acted with
full knowledge of the law as it affected the subject matter.
See Cape Henry Towers, Inc. v. National Gypsum Co., 229 Va. 596,
600-01, 331 S.E.2d 476, 479 (1985).
It is our task, as it was for the Court of Appeals, to
adopt a construction that gives import to the legislative
purpose and the words used. See Van Geuder v. Commonwealth, 192
Va. 548, 554, 65 S.E.2d 565, 568 (1951). Contrary to the view
taken by the dissent below, the 1994 amendments were not
narrowly tailored to eliminate unneeded language, but
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constituted a complete reformulation of the statute. Most
particularly, the elimination of the permissive provision that
embezzlement could be “indicted as for larceny” evinces a clear
legislative intent to prohibit that former practice and require
specificity in the indictment.
Finally, we concur with the view of the majority of the
Court of Appeals that the continued association of embezzlement
and larceny in the second sentence of Code § 18.2-111 is to
“classify embezzlement as a larceny crime for the limited
purpose of punishment according to the larceny statutes.” Bruhn
37 Va. App. at 546, 559 S.E.2d at 885. Accordingly, we hold
that there can be no question that the Commonwealth failed to
prove that Bruhn committed the crime charged in the indictment.
CONCLUSION
For these reasons, we will affirm the judgment of the Court
of Appeals reversing Bruhn’s conviction and dismissing the
indictment for grand larceny.
Affirmed.
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