Bruhn v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Bray,
Annunziata, Bumgardner, Frank, Humphreys, Clements and
Agee
Argued at Richmond, Virginia

CHRISTOPHER BRUHN
OPINION BY
v. Record No. 0818-00-2 JUDGE ROSEMARIE ANNUNZIATA
FEBRUARY 26, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge

UPON A REHEARING EN BANC

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

Amy L. Marshall, Assistant Attorney General
(Randolph A. Beales, Acting Attorney
General; Eugene Murphy, Assistant Attorney
General, on brief), for appellee.

On April 24, 2001, a unanimous panel of this Court reversed

the conviction of appellant, Christopher Bruhn, for grand

larceny. The panel found the evidence insufficient to

demonstrate that Bruhn committed larceny in violation of Code

§ 18.2-95, the only crime charged in the indictment, because it

failed to prove the victim ever possessed the alleged stolen

property. Furthermore, the panel rejected the Commonwealth's

argument that proof of embezzlement is sufficient to sustain a

conviction under an indictment for grand larceny. We stayed the
mandate of that decision and reinstated the appeal. Upon

rehearing en banc, we reverse the conviction and dismiss the

indictment.

I.

PROCEDURAL HISTORY

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, Bruhn moved to strike the Commonwealth's evidence. The

trial court denied the motion. At the conclusion of all the

evidence, defense counsel renewed the motion to strike the

Commonwealth's evidence, which the court again denied. The

trial court found Bruhn 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 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."

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 II.

Sufficiency of the Evidence to
Support a Grand Larceny Conviction

For the reasons stated in the panel's opinion, see Bruhn v.

Commonwealth, 35 Va. App. 339, 343-44, 544 S.E.2d 895, 897

(2001), we hold that the evidence presented by the Commonwealth

was insufficient to support a conviction for grand larceny in

violation of Code § 18.2-95, as alleged in the indictment.

III.

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. 1 Assuming, without deciding, that Bruhn was

guilty of embezzlement, we hold that proof of embezzlement does

not support a conviction under an indictment alleging larceny.

In Virginia, proof of the elements of a crime not alleged

in an indictment will not support a conviction. See Baker v.

Commonwealth, 225 Va. 192, 194-95, 300 S.E.2d 788, 789 (1983).

As the Virginia Supreme Court recently explained in Commonwealth

1
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).

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v. Dalton, our constitutions demand that the Commonwealth indict

for the crime it intends to prosecute:

The Due Process Clauses of the Constitution
of the United States and the Constitution of
Virginia mandate that an accused be given
proper notification of the charges against
him. U.S. Const. amend. XIV; Va. Const.
art. 1, § 8. Code § 19.2-220 provides, in
pertinent part, that an indictment shall be
"a plain, concise and definite written
statement, (1) naming the accused,
(2) describing the offense charged,
(3) identifying the county, city or town in
which the accused committed the offense, and
(4) reciting that the accused committed the
offense on or about a certain date." An
indictment, to be sufficient, must give an
accused notice of the nature and character
of the charged offense so the accused can
make his defense. Satcher v. Commonwealth,
244 Va. 220, 231, 421 S.E.2d 821, 828
(1992).

259 Va. 249, 253, 524 S.E.2d 860, 862 (2000); see also United

States v. Cruikshank, 92 U.S. 542, 557-58 (1875) (holding that

the Sixth Amendment provides an accused the right to be informed

of the nature and cause of the accusation (citations omitted));

Henson v. Commonwealth, 208 Va. 120, 125, 155 S.E.2d 346, 349

(1967) (noting that Article I, Section 8 of the Virginia

Constitution requires that an accused be apprised of the cause

and nature of his accusation); Wilson v. Commonwealth, 31 Va.

App. 495, 504, 525 S.E.2d 1, 5 (2000) ("An accused has a

constitutional right, under both the United States and Virginia

Constitutions, to be informed of the cause and nature of the

accusation against him." (citations and quotations omitted)).

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 In this case, Bruhn's indictment notified him that he was

being charged with grand larceny of property belonging to his

employer, in violation of Code § 18.2-95; he was not charged

with embezzlement. The Commonwealth did not propose any other

theory for convicting Bruhn until it responded to defendant's

motion to set aside the verdict finding Bruhn guilty of grand

larceny. The predicate for Bruhn's motion was the

Commonwealth's failure to prove that the victim possessed the

property alleged to have been stolen, a necessary element of

larceny.

Thus, throughout his trial, Bruhn defended a charge of

grand larceny, the only crime he had been accused of committing.

In his defense, Bruhn presented evidence that his employer did

not possess the property alleged to have been stolen and that

there had been no "trespassory taking" of the property. See

Maye v. Commonwealth, 213 Va. 48, 49, 189 S.E.2d 350, 351 (1972)

(holding that larceny requires trespassory taking); Jones v.

Commonwealth, 3 Va. App. 295, 301, 349 S.E.2d 414, 418 (1986)

("[I]n every larceny there must be an actual taking, or

severance of the goods from the possession of the owner."

(internal quotations and citations omitted)). Clearly, the

indictment did not provide Bruhn sufficient notice to adequately

prepare to defend the accusations made against him. Satcher,

244 Va. at 231, 421 S.E.2d at 828; Sims v. Commonwealth, 28 Va.

App. 611, 619, 507 S.E.2d 648, 652 (1998).

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 The Commonwealth argues, however, that proof of

embezzlement has been sufficient to support a conviction for

grand larceny in Virginia since the 1800s and, therefore,

Bruhn's indictment for larceny provided the constitutionally

required notice for an embezzlement conviction. See, e.g.,

Pitsnogle v. Commonwealth, 91 Va. 808, 811, 22 S.E. 351, 352

(1895) ("[U]pon an indictment simply charging larceny, the

Commonwealth may show . . . that the subject of the larceny was

. . . embezzled."). We disagree. We find that subsequent

amendments to the embezzlement statute changed that law so as to

prohibit a conviction for larceny upon an indictment for larceny

and proof of embezzlement.

In 1895, when the Supreme Court of Appeals decided

Pitsnogle, Code § 3716 (1877) classified embezzlement as larceny

for purposes of prosecution and conviction:

If any person . . . embezzle[s] . . .
property which he shall have received for
another, or for his employer, . . . or by
virtue of his office, trust, or employment,
. . . he shall be deemed guilty of larceny
thereof.

Understandably, the Court held that proof of embezzlement

sustained a conviction for larceny. Pitsnogle, 91 Va. at 811,

22 S.E. at 352. 2

2
Throughout the 19th century, the Court interpreted
statutes with similar language as permitting indictments and
convictions for larceny upon proof of the elements of other
property crimes. See, e.g., Leftwich v. Commonwealth, 61 Va.
(20 Gratt.) 716, 723 (1870) (construing chapter 192, section 49,

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 The General Assembly adhered to that classification of

embezzlement until 1994. Prior to its amendment in 1994, the

statute prohibiting embezzlement, 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. Specifically, 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 to 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, however, the General Assembly amended the statute

and deleted the language that permitted a defendant who had

committed an embezzlement to be "indicted as for larceny." The

which provided: "If a free person obtain by any false pretence
or token from any person, . . . he shall be deemed guilty of the
larceny thereof."), applied in Fay v. Commonwealth, 69 Va.
(28 Gratt.) 912 (1877); Dull v. Commonwealth, 66 Va. (25 Gratt.)
965 (1875); and Anable v. Commonwealth, 65 Va. (24 Gratt.) 563
(1873); Dowdy v. Commonwealth, 50 Va. (9 Gratt.) 727 (1852)
(construing Code 729, § 19, which provided that "a person
knowingly receiving, or aiding in concealing stolen goods, shall
be deemed guilty of larceny thereof"); Shinn v. Commonwealth,
73 Va. (32 Gratt.) 899 (1879) (convicting defendant of larceny,
upon indictment for larceny and proof of embezzlement where
statute provided "if any person shall . . . embezzle . . . he
shall be deemed guilty of the larceny thereof").

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General Assembly further eliminated the phrase that made proof

of embezzlement "sufficient to sustain" a larceny charge. The

first sentence of the statute now provides that any person

committing the described acts "shall be guilty of embezzlement."

Code § 18.2-111. In effect, the legislative amendment made the

crime charged in the indictment consistent with the crime tried

and proved, giving notice of the offense "with clearness and all

necessary certainty, to apprise the accused of the crime with

which he stands charged." Cruikshank, 92 U.S. at 558. 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 such that proof of embezzlement is no longer sufficient to

sustain a larceny charge. See Beavers' Administratrix v.

Putnam's Curator, 110 Va. 713, 717, 67 S.E. 353, 354 (1910)

("The common law . . . remains in force, except in so far as it

is changed by statute." (citations omitted)); cf. John Wesley

Bartram, Pleading for Theft Consolidation in Virginia: Larceny,

Embezzlement, False Pretenses and § 19.2-284, 56 Wash. & Lee L.

Rev. 249, 275, 279 (1999) (commenting that the "notable

absen[ce]" of the codification of the Pitsnogle rule in the

embezzlement statute indicates that "Virginia deems embezzlement

to be larceny only for purposes of punishment").

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 The Commonwealth contends, however, that, in amending

Code § 18.2-111, the legislature intended nothing more than to

eliminate the provision requiring the Commonwealth to elect the

charge it intended to prosecute, which was made unnecessary by

the 1975 adoption of legislation giving defendants the right to

request a bill of particulars. In essence, the Commonwealth

suggests that the General Assembly "merely eliminated

surplusage" from the statute and intended that courts continue

to rely on a principle of law as expressed a century earlier in

the common law. This broad, conclusory position regarding the

purpose of the amendment fails to take into account all the

amendatory language of the provision. Had the intent of the

legislature been simply to eliminate, as duplicative, the right

to demand notice of the specific charge upon which prosecution

would proceed, it need not have deleted the language permitting

an indictment for larceny where the offense to be tried and

proved was that of embezzlement, nor added language that, upon

proof of embezzlement, the conviction shall be that of

embezzlement, not larceny, as it had been under the common law

and the statute codifying it. Cf. Pitsnogle, 91 Va. at 811, 22

S.E. at 352.

The Commonwealth's position also fails to consider that, in

1975 when the legislature adopted Code § 19.2-230 granting all

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criminal defendants the right to a bill of particulars, it did

not eliminate the provision in Code § 18.2-111 giving larceny

defendants the right to demand the specific larceny charge.

Indeed, it was not until 1994, after the passage of nearly 20

years, that the legislature eliminated the election provision in

Code § 18.2-111, supporting the conclusion that the

legislature's deletion of the election provision was generated

by and followed from its amendment making the crime charged and

the crime underlying the conviction one and the same.

Finally, in its analysis, the Commonwealth unduly

emphasizes a clause in the second sentence, which states that

"embezzlement shall be deemed larceny." See Code § 18.2-111

("Embezzlement shall be deemed larceny and upon conviction

thereof, the person shall be punished as provided in [the

larceny code sections]."). This language must be construed

within the context of the entire body of law prohibiting

property crimes. See Campbell v. Commonwealth, 13 Va. App. 33,

38, 409 S.E.2d 21, 24 (1991) (considering seven statutes dealing

with forgery to determine that phrase not employed in statute

prohibiting forgery of a public document did not apply to that

offense). Throughout the Code, in nearly twenty statutes, the

General Assembly declares that persons found to have committed

certain crimes against property "shall be deemed guilty of

larceny," or "shall be deemed guilty of the larceny." That

phrase is notably absent from the embezzlement statute. Rather,

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Code § 18.2-111 states that persons who embezzle "shall be

guilty of embezzlement," and subsequently states that

embezzlement "shall be deemed larceny and upon conviction . . .

shall be punished as provided in § 18.2-95 or § 18.2-96." As

the Supreme Court noted in Klarfeld v. Salsbury, "[w]hen the

General Assembly uses two different terms in the same act, it is

presumed to mean two different things." 233 Va. 277, 284-85,

355 S.E.2d 319, 323 (1987); accord Campbell, 13 Va. App. at 38,

409 S.E.2d at 24. Therefore, we presume that the legislature

employed this phrase in the embezzlement statute to mean

something different from the phrases it used elsewhere in the

Code. Construing the clause in the context of the act as well

as in relation to the specific provision, as amended, in which

it is found, see Commonwealth Dept. of Motor Vehicles v.

Wallace, 29 Va. App. 228, 233-34, 511 S.E.2d 423, 425 (1999), we

conclude that the intent underlying this clause is to classify

embezzlement as a larceny crime for the limited purpose of

punishment according to the larceny statutes.

In short, we construe this penal statute strictly against

the Commonwealth, Moyer v. Commonwealth, 33 Va. App. 8, 35, 531

S.E.2d 580, 593 (2000), and we conclude that the General

Assembly intended the current version of Code § 18.2-111 to

preclude conviction under an indictment for larceny on proof of

embezzlement. Therefore, assuming, without deciding, that Bruhn

was guilty of embezzlement, proof of embezzlement does not

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support his conviction under the indictment alleging larceny.

See Gwaltney v. Commonwealth, 19 Va. App. 468, 473, 452 S.E.2d

687, 690 (1995) (noting that embezzlement requires proof of

elements different from those of larceny). Because the

Commonwealth failed to prove that Bruhn committed the crime

charged in the indictment, we reverse the conviction and dismiss

the indictment.

Reversed and dismissed.

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Bumgardner, J., dissenting.

I dissent from the holding that proof of embezzlement does

not support conviction under an indictment alleging larceny.

The panel opinion in this case reached that conclusion by

analyzing the 1994 amendments to Code § 18.2-111. 3 The en banc

opinion now grafts a constitutional dimension to the holding.

The ruling changes substantive and procedural law that has been

settled for more than a hundred years. I believe it is neither

wise nor necessary to conclude the legislature intended such an

extensive change to result from the revision of just one of many

types of criminal or fraudulent conversions that form the body

of law defining theft.

At common law, larceny was the only theft crime, but it

required a taking from the possession of another. Crimes such

as embezzlement and false pretenses developed to fill the gaps

caused by the intricacies of proving possession in larceny

prosecutions. See Roger D. Groot, Criminal Offenses and

Defenses in Virginia § 185, 329 (4th ed. 1998). As in the

present case, various forms of theft were "so much alike in many

3
Code § 18.2-111 now reads:

If any person wrongfully and
fraudulently . . . embezzle any . . .
personal property . . . he shall be guilty
of embezzlement. Embezzlement shall be
deemed larceny and upon conviction thereof,
the person shall be punished as provided in
§ 18.2-95 or § 18.2-96.

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respects . . . [that they were] often separated by lines so

indistinct, and almost imaginary . . . ." Anable v.

Commonwealth, 65 Va. (24 Gratt.) 563, 580 (1873). The General

Assembly in 1847-48 enacted a revised Criminal Code that

declared that any person who receives stolen property, embezzles

property, or obtains it by false pretenses "shall be deemed

guilty of larceny thereof." 1847-48 Va. Acts. The purpose was

"to end this evil [the difficulty of determining the particular

form of theft] by making all these crimes larceny . . . ."

Anable, 65 Va. (24 Gratt.) at 580.

Beginning with Dowdy v. Commonwealth, 50 Va. (9 Gratt.)

727, 734 (1852), an unbroken line of cases held that proof of

one of the "special counts" sustained an indictment charging

common law larceny. The Anable case rejected the argument that

the wording of those statutes, "shall be deemed guilty of

larceny thereof," only fixed punishment. 65 Va. (24 Gratt.) at

566, 580-82. Pitsnogle v. Commonwealth, 91 Va. 808, 811, 22

S.E. 351, 352 (1895), specifically applied the principle to

embezzlement, and ever since, "upon the indictment for larceny,

proof of embezzlement is sufficient to sustain the charge."

The 1919 revisions to the embezzlement statute remained in

effect until 1994. The revisors' note explained with precision

the purpose of the modifications:

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 Two important changes have been made in this
section.
Near the beginning of it the word
"property" has been changed to "personal
property, tangible or intangible." This
change makes the decision in Pitsnogle v.
Com., 91 Va. 810, 22 S. E. 351, statutory in
plain terms.
As to the second change, in view of the
fact that upon an indictment for larceny the
proof may show simple larceny, embezzlement,
obtaining goods by false pretenses, or
fraudulent removal of goods which have been
levied on, etc., the revisors have
considered it wise to add the provision
found in the last sentence of the section.

Va. Code Ann. § 4451, 1823-24 (1919). Those notes make clear

that the revisors conformed the embezzlement statute to the case

law that culminated in Pitsnogle, and inserted an election

procedure into the embezzlement statute intended to apply to all

larceny indictments.

While wording of the embezzlement statute did not change

materially until 1994, related areas of the law did change. 4

Henderson v. Commonwealth, 215 Va. 811, 814, 213 S.E.2d 782, 784

(1975), suggested the election provision only applied to

embezzlement cases. Beginning in 1975, a statutory procedure

authorized bills of particulars for any felony indictment. 1975

Va. Acts, ch. 495. A circuit court had statutory authority to

4
Branch v. Commonwealth, 184 Va. 394, 35 S.E.2d 593 (1945),
held that receiving stolen property was a lesser-included
offense of larceny.

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order a bill of particulars upon motion made at least seven days

before trial. Code § 19.2-230. 5

The 1994 amendment 6 to Code § 18.2-111 deleted words and

phrases from the first sentence, and after specifying the

5
The election provision in Code § 18.2-111 required a
demand five days before trial.
6
In 1994, the General Assembly provided:
Be it enacted by the General Assembly
of Virginia:
1. That § 18.2-111 of the Code of
Virginia is amended and reenacted as follows:
§ 18.2-111. Embezzlement deemed larceny;
indictment; statement from attorney for the
Commonwealth.
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
deemed guilty of larceny thereof, may be
indicted as for larceny, and proof of
embezzlement under this section shall be
sufficient to sustain the charge. On the trial
of every indictment for larceny, however, the
defendant, if he demands it, shall be entitled
to a statement in writing from the attorney for
the Commonwealth designating the statute he
intends to rely upon to ask for conviction.
Such statement shall be furnished to the
defendant, or his attorney, no later than five
days prior to the date fixed for trial on the
indictment provided the demand is made more than
five days prior to such date. Embezzlement
shall be deemed larceny and upon conviction
thereof, the person shall be punished as
provided in § 18.2-95 or § 18.2-96.

Va. Code Ann. § 18.2-111 (1994).

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proscribed acts, concluded with the phrase "guilty of

embezzlement." Previously the statute declared any person

committing those acts was "guilty of larceny thereof." It also

deleted two phrases from that sentence that had declared the

defendant "may be indicted as for larceny" and proof of

embezzlement was "sufficient to sustain the charge." The

amendment deleted completely the second sentence of the statute

that had defined the election procedure. It added a concluding

sentence: "Embezzlement shall be deemed larceny and upon

conviction thereof, the person shall be punished as provided in

§ 18.2-95 or § 18.2-96."

The most apparent purpose of the 1994 amendment to the

embezzlement statute was to remove all reference to the election

procedure so the statute conformed to general criminal

procedure. A motion for a bill of particulars, Code § 19.2-230,

now provided a remedy for ascertaining the specifics of a

charge. The newer remedy appeared in Title 19.2 with other

criminal procedure statutes addressing the form and

prerequisites of indictments. It was not submerged in a

substantive statute that defined a single crime but bore a

procedural rule of general application. The newer remedy

clearly applied to any felony. With the election procedure

removed, the embezzlement statute conformed to the newer

procedure for bills of particulars, and inconsistent deadlines

for making the request no longer posed a conflict.

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 Conforming the embezzlement statute to the general

provisions for a bill of particulars in criminal cases is the

plainly manifested purpose for the 1994 amendment. However, if

the statute is viewed simply as it read before and after the

changes in wording, the purpose is susceptible to a broad

interpretation. Deleting the language "may be indicted as for

larceny" and "shall be sufficient to sustain the charge" permits

the elementary conclusion that the purpose was to accomplish the

opposite. The majority adopts that approach and concludes the

General Assembly intended to preclude proof of embezzlement to

sustain a larceny charge.

Before accepting that conclusion, it should be gauged to

see if it comports with the overall body of theft law. It does

not because it makes the rule for embezzlement an aberration.

Embezzlement law has always conformed to the related theft

crimes which the majority calls a "subset of larceny."

The clauses, "may be indicted as for larceny" and "shall be

sufficient to sustain the charge," were inserted into the

embezzlement statute to make plain that the 1919 revisions did

not change case law. They insured conformity with established

case law. Va. Code Ann. § 18.2-111 (1994); Va. Code Ann. § 4451

(1919). Established law permitted proof of embezzlement to

sustain a larceny charge. Pitsnogle, 91 Va. at 811, 22 S.E. at

352. The 1919 revisions did not change the law; they took care

to maintain the uniform principle that applied to all offenses

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deemed larceny. Removal of the clauses would not call for

reversal of the principle because those clauses did not create

it. The case law had; it remained unchanged.

Changing the last words of the first sentence from "guilty

of larceny," to "guilty of embezzlement," is not a material

change because the very next phrase declares that embezzlement

is larceny. The core of the amended statute declares, "he shall

be guilty of embezzlement. Embezzlement shall be deemed larceny

. . . ." That nuclear phrase equates embezzlement with larceny.

"Deem" is a term often used in legislation to create the

legal fiction that something is that which it is not, or that

something is not that which it is. A Dictionary of Modern Legal

Usage 254 (Byran A. Garner ed., 2d ed. 1995); Black's Law

Dictionary 425 (7th ed. 1999). The term was employed in 1847 to

make certain theft crimes common law larceny "just as if the

offender had feloniously stolen, taken and carried away the

subject thus obtained by a false pretence or token." Dull v.

Commonwealth, 66 Va. (25 Gratt.) 965, 981 (1875). The use of

the term in 1994 continued the fiction that embezzlement was

larceny. The term "deemed" incorporated the meanings that case

law attached to the fiction and ensured consistency among the

various theft statutes. 7

7
The legal fiction of deeming acts of theft to be larceny
is common throughout the Code. Acts "deemed guilty of larceny"
include: § 6.1-333, Removing property from a safe-deposit box
by a co-lessee; § 18.2-98, Larceny of checks; § 18.2-108,

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 The majority concludes the only purpose for words "deemed

larceny" is to fix punishment, which ironically is the

construction that has been rejected since 1852. See Dowdy, 50

Va. (9 Gratt.) at 734. It dismisses the traditional

construction by saying the phrase must be construed "within the

remainder of the sentence." Because the second clause pertains

to penalty, the first clause is so limited.

Even when focusing on that single sentence, the

interpretation is not convincing. The compound sentence makes

two independent statements. "Embezzlement shall be deemed

larceny and upon conviction thereof, the person shall be

punished as provided in § 18.2-95 or § 18.2-96." Code § 18.2-

111. The first states embezzlement is deemed larceny; the

second states the penalty. If the first statement only serves

to fix the penalty, there is no purpose for the second.

Receiving stolen goods; § 18.2-111.1, Conversion of military
property by person discharged from the national guard;
§ 18.2-114, Conversion by shippers and warehousemen;
§ 18.2-114.1, Failure to account by special receivers;
§ 18.2-117, Failure of bailee to return property; § 18.2-178,
Obtaining property by false pretenses; § 42.1-73, Concealment or
removal of books from a library; § 63.1-124, False statements to
obtain welfare benefits; and § 63.1-124.1, Unauthorized use of
food stamps.
Sometimes the statute employs the phrase "deemed guilty of
the larceny": § 18.2-101, Selling of goods distrained or levied
upon; § 18.2-115, Conversion or removal of property subject to
lien; § 18.2-116, Failure to pay for or return goods delivered
for selection or approval; § 18.2-118, Conversion or removal of
leased property; § 18.2-200, Failure to deliver a crop in return
for advances; and § 18.2-200.1, Failure to perform construction
in return for advances.

- 20 -
 The majority relies on Davis v. Commonwealth, 14 Va. App.

709, 713, 419 S.E.2d 285, 288 (1992), for authority that

"'deemed' larceny, 'serves the purposes of defining the

parameters of punishment.'" Davis was not an embezzlement case;

it involved receiving stolen property. The quote is dicta. No

authority ever held that "deeming" receipt of stolen property

larceny only defined punishment. Indeed, that is the particular

statute that Dowdy interpreted when it initiated the principle.

Davis did not address the issue and certainly did not address

the Pitsnogle case that held the exact opposite. Davis was

decided two years before the 1994 amendment even permitted the

suggestion that the revision overruled Pitsnogle.

When the legislature has created the legal fiction that a

theft crime is larceny, case law has uniformly held the purpose

is not limited to incorporating the penalty for larceny. It

permitted indictment for larceny but proof of a specific form. 8

The majority concludes that holding no longer applies to

embezzlement because Pitsnogle was determined by the statute

then in effect.

In the Pitsnogle line of cases, the statute always stated

that if a person did certain acts "he shall be deemed guilty of

8
The legislature continued to designate various theft
crimes as "deemed larceny" as late as 1977 and 1978. See Code
§ 18.2-111.1, Conversion of military property by person
discharged from the national guard; Code § 18.2-114.1, Failure
to account by special receivers.

- 21 -
larceny." The words "deemed larceny" that appear in the current

statute carry the same meaning as "deemed guilty of larceny"

that appeared previously. Indeed, the second case to rule on

the meaning of the clause "deemed guilty of larceny"

interchanged the phrases and concluded that it was proper to

charge specific facts "which the act declares shall be deemed

larceny." Leftwich v. Commonwealth, 61 Va. (20 Gratt.) 716, 719

(1870).

Pitsnogle did not interpret the particular words "deemed

guilty of larceny." It noted the wording of the embezzlement

statute was identical to the wording of the statutes for

receiving stolen property and false pretenses. Accordingly, the

principle that applied to those statutes must apply to the

embezzlement statute. However, the case that established the

principle, Dowdy, 50 Va. (9 Gratt.) at 734 (Moncure, J.), did

not parse the particular wording of the statute. It reached its

conclusion by deducing the overall purpose of the General

Assembly when it employed the fiction that acts not larceny were

to be larceny.

Judge Moncure, the author of the Dowdy opinion, explained

in a sequel:

Larceny at common law always includes a
trespass, and implies that the property was
taken invito domino. The other offences
named did not include a trespass, and were
often committed by the consent of the owner,
though fraudulently obtained. The statute
merely abolishes these distinctive features,

- 22 -
 and declares that the offenders shall be
deemed guilty of stealing, taking and
carrying away the property.

Anable, 65 Va. (24 Gratt.) at 581 (Moncure, P., concurring on

this point, dissenting from result). The decision in Dowdy did

not turn on the employment of the word "guilty."

The majority relies on Baker v. Commonwealth, 225 Va. 192,

300 S.E.2d 788 (1983), to insert a constitutional buttress to

its holding. Baker did not deal with the proposition that an

indictment for larceny gave inadequate notice that the charge

involved embezzlement. The indictment charged larceny, but at

trial the Commonwealth offered an instruction on false pretenses

only. The instruction omitted the unique element of the crime,

that title must pass. No evidence indicated the defendant

obtained title. Baker dealt with an erroneous finding

instruction that failed to require proof of the essential

element of the crime. "However, to obtain a larceny conviction

upon a larceny indictment when the proof shows a crime other

than common law larceny, the Commonwealth must fully prove that

other crime." Groot, supra at 330 (citing Anable, 65 Va. (24

Gratt.) at 567-68). Baker did not consider, much less

distinguish, modify, or limit, the Pitsnogle holding.

The embezzlement statute is but one of a group of statutes

that address various forms of theft. The General Assembly has

employed the fiction that various forms of theft are deemed

larceny. The 1994 amendment modified only one of a group of

- 23 -
statutes. That one was also the one statute that contained a

procedure applicable to the others.

The adoption of the Criminal Code in 1847 was an early

attempt to consolidate 9 the law of theft and to eliminate the

"indistinct," "almost imaginary" differences in what "all amount

to a criminal and fraudulent conversion by one man to his own

use of another man's property." Anable, 65 Va. (24 Gratt.) at

580-81 (Moncure, P., dissenting). The majority's interpretation

severs embezzlement from its traditional association with the

law of theft and makes it unique. It returns embezzlement to

the arcane subtleties of possession, custody, and title.

The majority's holding impresses on the embezzlement

statute an interpretation that was rejected in Pitsnogle:

deeming embezzlement larceny has no purpose but to define

punishment. It adopts a constitutional ruling that repudiates

the ruling and explanation in Anable. 10 Unintended consequences

9
Many states have moved to consolidate their body of law
into a unitary theft crime. See John Wesley Bartram, Note,
Pleading for Theft Consolidation in Virginia: Larceny,
Embezzlement, False Pretenses and 19.2-284, 56 Wash. & Lee L.
Rev. 249, 251 n.23 (1999).
10
In Anable, 65 Va. (24 Gratt.) at 580-81, Moncure, P.
explained:

There was nothing incongruous in this, nor
is there any danger, as the learned counsel
for the accused in this case seems to
suppose, that it may take the accused by
surprise.

- 24 -
are likely to follow from such a far reaching ruling. Will the

constitutional analysis that a larceny indictment gives

inadequate notice apply to all larceny indictments? Will

intertwined laws such as the recidivist statute, Code

§ 18.2-104, apply differently? Dull, 66 Va. (25 Gratt.) at 965,

982, interpreted the old wording "deemed guilty" to apply the

substantive gradations of petit larceny and grand larceny to

other theft offenses. Will the embezzlement statute now lack a

definition but contain a graded penalty? At its latest session,

the General Assembly enacted Code § 38.2-1810 which mandates a

report of "any act of larceny as prescribed in § 18.2-111." 11

The offences are all cognate. They are all
offences against property, and property of
which larceny may be committed. They differ
only in a few circumstantial details,
immaterial in a moral point of view. They
all amount to a criminal and fraudulent
conversion by one man to his own use of
another man's property. . . . There is no
danger of surprise. When A is charged with
stealing certain property of B, the
substance of the charge is the fraudulent
conversion of that property by the former to
his own use, and whether it was done by
means of a larceny at common law, or by
receiving the property knowing it to have
been stolen, or by obtaining it by false
pretences, or by embezzling it after having
been entrusted by the owner with its
custody, can make no difference in regard to
taking the accused by surprise.
11
Code § 38.2-1810, Report of acts deemed larceny under
§ 18.2-111, provides in part:

A. Whenever any insurer . . . knows . . .
any licensee . . . has committed any act of

- 25 -
Does the majority holding effectively eviscerate this act though

the words illustrate that the General Assembly still considers

the fiction of "deemed larceny" to carry its traditional

meaning?

Nothing suggests, much less plainly manifests, the General

Assembly intended the major change that the majority attributes

to it. I would interpret the 1994 amendment narrowly as a

housekeeping update that adjusted for developments after 1919

but that did not make embezzlement an anomaly. Accordingly, I

dissent.

larceny as prescribed in § 18.2-111 . . . it
shall be the duty of the insurer . . . to
file with the Commission a complete
statement of the relevant facts and
circumstances.

B. Whenever any insurer licensed to
transact the business of title insurance
. . . knows . . . any title insurance agent
. . . has committed any act of larceny as
prescribed in § 18.2-111 . . . it shall be
the duty of the insurer . . . to file with
the Commission a complete statement of the
relevant facts and circumstances.

- 26 -
 Tuesday 29th

May, 2001.

Christopher Bruhn, Appellant,

against Record No. 0818-00-2
Circuit Court No. CR99-4369

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray Annunziata, Bumgardner, Frank, Humphreys, Clements and Agee

On May 8, 2001 came the appellee, by the Attorney

General of Virginia, and filed a petition praying that the Court

set aside the judgment rendered herein on April 24, 2001, and

grant a rehearing en banc thereof.

On consideration whereof, the petition for rehearing

en banc is granted, the mandate entered herein on April 24, 2001

is stayed pending the decision of the Court en banc, and the

appeal is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule

5A:35. The appellee shall attach as an addendum to the opening

brief upon rehearing en banc a copy of the opinion previously

rendered by the

- 27 -
Court in this matter. It is further ordered that the appellee

shall file with the clerk of this Court twelve additional copies

of the appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

- 28 -
 COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Annunziata and Humphreys
Argued at Richmond, Virginia

CHRISTOPHER BRUHN
OPINION BY
v. Record No. 0818-00-2 JUDGE ROSEMARIE ANNUNZIATA
APRIL 24, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge

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.

- 29 -
 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

- 30 -
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. 12 Bruhn never did so. In April 1999, Marzeros

terminated Bruhn for business reasons.

12
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.

- 31 -
 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.

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

- 32 -
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);

- 33 -
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

- 34 -
Bruhn with larceny. 13 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

13
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).

- 35 -
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

- 36 -
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. 14

Reversed and dismissed.

14
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.

- 37 -