COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Elder and Fitzpatrick
Argued at Richmond, Virginia
WILLIAM EDWARD WALDROP
v. Record No. 2094-94-2 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA DECEMBER 29, 1995
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James M. Lumpkin, Judge Designate
John M. Schilling (White, Blackburn & Conte,
P.C., on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
William Edward Waldrop appeals his convictions for grand
larceny by embezzlement, misappropriation of bingo proceeds, and
perjury in connection with his operation of bingo games on behalf
of two charities. He argues that his perjury before the grand
jury was not material, that the Commonwealth failed to prove all
of the elements of embezzlement, that he was subjected to double
jeopardy, and that he did not wrongfully take property of another
when he paid workers to operate bingo games. We disagree, and
affirm the convictions.
Between 1987 and 1989, Waldrop ran bingo games on behalf of
the Virginia Association of Workers for the Blind and American
Legion Post 361. Under Code § 18.2-340.9(B) and (E), it was
unlawful for a charitable organization to pay compensation to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
anyone for conducting a bingo game. Waldrop testified before the
grand jury that he had not paid any workers to operate bingo
games, and that he had not misappropriated any money "from the
bingo." His conviction for perjury was based on these denials of
misconduct. His convictions for grand larceny and
misappropriation of bingo proceeds were based on his use of bingo
proceeds to pay workers. The Commonwealth also sought to prove
that Waldrop had pocketed bingo proceeds, but the trial judge
found that the Commonwealth did not sustain its burden of proof
on that aspect of the charges.
Under Code § 18.2-434, perjury before the grand jury must
touch "any material matter or thing . . . ." Waldrop's denial
that he had paid any workers was material to the grand jury's
investigation of irregularities in the bingo games. First,
contrary to Waldrop's claim that it was legal to compensate
workers from sources other than bingo proceeds, the bingo
statutes prohibited any compensation to workers, regardless of
the source. Second, Waldrop's testimony that he had paid no
compensation whatsoever and that he had never misappropriated
funds from the bingo was material to the charge of
misappropriation of bingo proceeds in order to pay workers.
Waldrop argues that in order to prove embezzlement, the
Commonwealth must show that he appropriated funds to his own use
or benefit. He further argues that because he received no
benefit by paying workers to operate the games, he cannot be
found guilty of embezzlement.
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In Chiang v. Commonwealth, 6 Va. App. 13, 365 S.E.2d 778
(1988), this Court held that in order to prove embezzlement, the
Commonwealth must show, inter alia, that the defendant wrongfully
appropriated property for his own use and benefit. However, the
Court also held that it is not necessary to show that the
defendant misappropriated the property for "his own personal use
and benefit"; it is sufficient to show that the defendant took
the property to benefit another. Id. at 17, 365 S.E.2d at 781
(emphasis added). Here, the Commonwealth proved that Waldrop
misappropriated funds to benefit others--i.e., the workers who
were paid. That the charities themselves may have benefited
indirectly, as Waldrop alleges--a matter by no means proven--
does not purge Waldrop's actions of criminality.
Waldrop claims that his convictions for grand larceny under
Code § 18.2-95 and misappropriation of bingo proceeds under Code
§ 18.2-340.9 constitute multiple punishments for the same offense
in violation of the double jeopardy clause of the United States
Constitution. For double jeopardy purposes, for two offenses not
to be the same, each must contain an element not contained in the
other. United States v. Dixon, 113 S. Ct. 2849 (1993);
Blockburger v. United States, 284 U.S. 299 (1932). To determine
whether the elements are the same, the offenses are examined in
the abstract, not with reference to the facts of the case at
hand. Blythe v. Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796,
798 (1981).
For a charge under Code § 18.2-340.9, the misappropriated
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funds must be from gross receipts of bingo games or raffles
conducted by licensed organizations. There is no minimum amount.
For a charge of grand larceny not from the person under Code
§ 18.2-95, there is no limitation on the source of the stolen
property, but the property must be worth at least $200. 1 Thus,
each offense contains an element the other does not, and Waldrop
was not punished twice for the same offense.
Finally, Waldrop argues that on the charge of grand larceny
by embezzlement the Commonwealth did not prove that he took money
belonging to another with the intent to deprive the owner thereof
because he paid the workers only in order to keep the games
going. He further argues that the funds did not belong to the
charities until all expenses--including his illegal payments to
workers--were deducted from the gross.
As noted by the Commonwealth, Waldrop did not raise these
grounds for reversal below. No good cause has been shown, and
the ends of justice do not require us to permit Waldrop to raise
1
Waldrop was indicted for grand larceny under Code
§ 18.2-95, but both Waldrop and the Commonwealth refer to his
offense as embezzlement, or "grand larceny by embezzlement". The
elements of larceny and embezzlement are not the same, see Smith
v. Commonwealth, 222 Va. 646, 649, 283 S.E.2d 209, 210 (1981).
Nonetheless, under former Code § 18.2-111, an individual
suspected of embezzlement could be indicted for larceny and, if
embezzlement were proven, was deemed guilty of larceny. The
embezzlement statute did not specify a penalty for that offense,
so the penalty had to be derived from the larceny statutes. To
treat embezzlement as a felony under Code § 18.2-95, the amount
of property taken must be worth at least $200. See Code
§ 18.2-111 as amended, clarifying that embezzlement is penalized
under either Code § 18.2-95 (grand larceny) or Code § 18.2-96
(petit larceny).
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these arguments now. Therefore, Rule 5A:18 bars our
consideration of these arguments.
For these reasons, we affirm the judgment.
Affirmed.
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