COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Coleman and
Senior Judge Duff
Argued at Alexandria, Virginia
DANIEL SCOTT BESCHER
MEMORANDUM OPINION *
v. Record No. 1489-97-4 BY JUDGE CHARLES H. DUFF
APRIL 14, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Carleton Penn, Judge Designate
Robert J. Hartsoe (Boyd J. Brown, II;
Hartsoe & Brown, P.L.L.C., on brief), for
appellant.
Daniel J. Munroe, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Daniel Scott Bescher appeals from a judgment of the trial
court convicting him of embezzlement. He asserts that the trial
court lacked jurisdiction to hear the case. We disagree and
affirm.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
So viewed, the evidence proved that Curtis and Tim
McGlothlin were in a band with appellant. In March 1996, the
band members decided they would practice at appellant's residence
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
in Fauquier County, and the McGlothlins moved their musical
equipment there. Later that month, however, appellant moved to
West Virginia and, without permission, took with him the
McGlothlins' musical equipment. He did not advise Curtis
McGlothlin when he moved, nor did he provide a forwarding
address. Curtis McGlothlin first learned that something was
amiss when he called appellant's phone number and reached a
recording that the phone had been disconnected. A letter that
Tim McGlothlin mailed to appellant was sent back, marked "Return
to Sender."
The equipment that appellant took with him included a guitar
amplifier belonging to Curtis McGlothlin. After leaving Fauquier
County, he made no effort to contact the McGlothlins to let them
know how they could reclaim their equipment. On October 1, 1996,
appellant, without authorization, used the amplifier as
collateral for a loan he secured from a pawn shop located in West
Virginia.
In denying appellant's motion to dismiss for lack of
jurisdiction, the trial court found that
[a]n examination of the circumstances of the
removal of the personalty from Fauquier
County, Virginia, shows "unauthorized and
wrongful exercise of dominion and control
over another's personal property, to
exclusion of or inconsistent with rights of
the owner." So the wrongful conversion had
already occurred in Virginia before the
unauthorized pawning by [appellant] occurred
in West Virginia.
(Citation omitted.).
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Code § 19.2-239 provides that "[t]he circuit courts . . .
shall have exclusive original jurisdiction for the trial of all
presentments, indictments and informations for offenses committed
within their respective circuits."
A defendant challenged the jurisdiction of the trial court
under circumstances analogous to those in the present case in
Rhodes v. Commonwealth, 145 Va. 893, 134 S.E. 723 (1926). The
defendant was the president of a company in Bristol, Virginia.
See id. at 894, 134 S.E. at 723. He appropriated some of the
company's notes, which were located in Virginia, and discounted
them for cash in Bristol, Tennessee. See id. at 894-95, 134 S.E.
at 723-24. The defendant contended that the Virginia court
lacked jurisdiction because the crime was consummated in
Tennessee. See id. at 895, 134 S.E. at 724. The Supreme Court
held that there was sufficient evidence proving that the
defendant intended to appropriate the notes to his own use before
he reached the Tennessee border. See id. at 896, 134 S.E. at
724. Thus, the Court concluded, the trial court had
jurisdiction. See id.
"[I]f one is intrusted with property in one
county, and there forms the intention of
fraudulently appropriating it to his own use,
and, pursuant to such intention, goes with it
to another county, where he accomplishes his
object by pawning it, his crime may be deemed
committed in the place where he received the
property and formed the criminal intent."
Id. (citation omitted).
"To establish the crime of embezzlement under Code
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§ 18.2-111, the Commonwealth must prove that the accused
wrongfully appropriated to his or her own use or benefit, with
the intent to deprive the owner thereof, the property entrusted
or delivered to the accused." Zoretic v. Commonwealth, 13 Va.
App. 241, 243, 409 S.E.2d 832, 833-34 (1991) (emphasis added).
"Because direct proof of intent is often impossible, it must be
shown by circumstantial evidence." Servis v. Commonwealth, 6 Va.
App. 507, 524, 371 S.E.2d 156, 165 (1988). "Intent in fact is
the purpose formed in a person's mind, which may be shown by the
circumstances surrounding the offense, including the person's
conduct and his statements." Nobles v. Commonwealth, 218 Va.
548, 551, 238 S.E.2d 808, 810 (1977). "The inferences to be
drawn from proven facts, so long as they are reasonable, are
within the province of the trier of fact." Hancock v.
Commonwealth, 12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991).
The McGlothlins entrusted their musical equipment to
appellant in Fauquier County. Shortly thereafter, and without
notifying the McGlothlins, appellant moved out of state and took
the equipment with him. Appellant did not advise the McGlothlins
that he was taking the equipment, nor did he leave a forwarding
address or phone number where he could be reached. After moving,
appellant made no effort to contact the McGlothlins. He
subsequently used Curtis McGlothlin's amplifier as collateral for
a pawn shop loan.
The issue here is not whether appellant intended to embezzle
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the McGlothlins' property, but when and where he formed that
intent. The evidence sufficiently proved, and the trial court
found, that appellant intended to convert the McGlothlins'
equipment to his own use and benefit when he took it with him
upon leaving Fauquier County in March 1996. The use of the
amplifier as collateral in West Virginia was competent evidence
of appellant's criminal intent, but did not mark the commencement
of the crime. That occurred when appellant unlawfully
appropriated the equipment to his own use and removed it, without
authorization, from Virginia to West Virginia.
It has long been established that a sovereign has
jurisdiction to prosecute an offense where only part of the crime
has been committed within its boundaries. See United States v.
Busic, 592 F.2d 13, 20 n.4 (2d Cir. 1978). Where a crime is
committed in various jurisdictions, "any state in which an
essential element of the crime is committed may take
jurisdiction." 21 Am Jur. 2d Criminal Law § 345 (1981). Cf.
Gregory v. Commonwealth, 5 Va. App. 89, 93, 360 S.E.2d 858, 861
(1987), aff'd, 237 Va. 354, 377 S.E.2d 405 (1989). Accordingly,
we conclude that the trial court was vested with jurisdiction.
The conviction appealed from is affirmed.
Affirmed.
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