Virginia Law

If you have been charged with embezzlement, your lawyer can fight to protect your reputation, hold the government to its burden, and work to reduce or dismiss the charge. The first step is to review applicable Virginia law. The government must prove each element of the charge beyond a reasonable doubt, and the elements are set forth by statute.

Here’s what the law says. Under Virginia Code Section 18.2-111, embezzlement is defined as:

Therefore, the government must prove:

• Wrongful and fraudulent
• Use, disposal, or concealment of
• Money, bill, note, check, order, draft, bond, receipt, or personal property
• Received for another or for the employer

Embezzlement is a statutory crime. Moss v. Harwood, 102 Va. 386 (1904). The government must prove each of the above elements under the statute in order to meet its burden. Otherwise, the charge must be dismissed.

The Virginia Supreme Court has held that merely misappropriating the property of another is not sufficient to prove the crime of embezzlement. 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 (1991).

Embezzlement is different than the simple crime of larceny. The key difference between embezzlement and larceny is that larceny involves the taking of another’s property while embezzlement involves a keeping of property that had been given with the owner’s consent but was intended for another. Cera v. Commonwealth, No. 0432-94-4 (Ct. of Appeals May 2, 1995). Therefore, proof of embezzlement is not sufficient to prove larceny, which is a separate offense with separate elements. Commonwealth v. Bruhn, 264 Va. 597 (2002) (dismissing larceny charge when there was no proof that the property was taken without the consent of another).

One of the most important elements is showing that the property was wrongfully and fraudulently converted with knowledge of improper purpose. The government must show that a person knew they intended to “deprive the owner of his property and to appropriate the same.” Bain v. Commonwealth, 215 Va. 89 (1974).

If a person mistakenly keeps property for himself, or otherwise negligently misappropriates property from an employer without the intent to deprive them of the property, then they may be found not guilty. The government must prove the knowledge element.

Penalties for Embezzlement

The penalty for embezzlement is:

Defenses to Embezzlement

There are several technical defenses to embezzlement charges in Virginia. First, there are constitutional defenses. For example, the police may have violated the Fourth Amendment in wrongfully searching the defendant’s home or vehicle to obtain and seize evidence. Such evidence may be suppressed. Second, there are a variety of ways to attack the government’s case:

• Lack of intent
• Lack of knowledge
• Consent of property owner
• Consent of employer
• Bona fide claim of ownership
• Inadequate financial controls

A common defense is a bona fide claim of ownership over the allegedly embezzled funds. For example, if the employee held a good faith belief in the ownership over the property, even if that belief is incorrect, the government cannot prove embezzlement. Wadley v. Commonwealth, 98 Va. 803 (1900); Whitlow v. Commonwealth, 184 Va. 910 (1946).

In Stinespring v. Commonwealth,, 2009 Va. App. LEXIS 200 (Apr. 28, 2009), the Court of Appeals of Virginia overturned a conviction of embezzlement under the bona fide defense. The defendant was the treasurer of a real estate development corporation. He paid himself for his time and reimbursed his expenses. The government could not show that he acted in bad faith, and dismissed the charge.

Another common defense is a showing that there were inadequate financial controls, e.g. counting errors, within the organization. A person cannot be convicted of embezzlement merely because there is a discrepancy between the deposits and cash on hand did not equal the cash receipts shown in the books.

In Webb v. Commonwealth, 204 Va. 24 (1963), the Supreme Court of Virginia overturned an embezzlement conviction against a bookkeeper. The defendant was charged with embezzlement when the deposits and cash on hand did not equal the amounts that had been reported in the books. The Court held that the discrepancy could have been a shortcoming of the financial controls of the company, and not necessarily prima facie evidence of embezzlement. The charge was dismissed.

Lack of intent can also be a defense where the employee mistakenly misplaces the company’s funds without any wrongful and fraudulent purpose. Perhaps the employee was negligent or mistaken. But the touchstone of embezzlement is a showing of intent to defraud. A mere mistake is not enough to support a conviction.

In Waymack v. Commonwealth, 4 Va. App. 547 (1987), the Supreme Court of Virginia tossed out an embezzlement conviction on the grounds of lack of criminal intent. The defendant was a brand new temporary employee at the company. She had been given poor direction about how to process funds that had been given to her in an envelope. There was no evidence she even knew that the envelope contained any money. Accordingly, the Court dismissed the charge.

In every case, the outcome depends on the facts and circumstances of the charge. Even if the government can meet its burden, an experienced embezzlement lawyer in Roanoke, Virginia, can work with the prosecutor’s office to avoid indictment, reduce the charge, or dismiss the charge altogether. In some cases, the government may elect to decline prosecution and allow the company to handle the case in civil court.

Contact a embezzlement lawyer in Roanoke, Virginia, for more information.