Fairfax Embezzlement Defense Firm

Virginia Embezzlement: Fairfax Criminal Lawyer and Fairfax Criminal Defense Attorney

virginia embezzlement defense lawyer

Our Fairfax, Virginia Embezzlement Defense Lawyer

What is Embezzlement?

Virginia Embezzlement Penalties

What the Commonwealth (Prosecutor) Must Prove to Convict You

Examples of Real Virginia Embezzlement Cases

Other Less-Common Embezzlement Offenses

Fairfax Criminal Lawyer: Virginia Embezzlement Defense Attorney

This page does not contain legal advice: it is provided by our Fairfax criminal lawyer for informational purposes only. If you have been charged with any criminal violation in Northern Virginia including larceny or embezzlement, we strongly encourage you to call or message us immediately to schedule a free consultation (either in-person or over the phone). Our Fairfax criminal lawyer may be able to help you, even if you live somewhere outside of Fairfax County or if the charge is in a court outside of the Fairfax County jurisdiction. We serve most of the Northern Virginia area.

We represent those confronted with criminal investigations, accusations, and/or charges in Northern Virginia. If you are accused of committing a Virginia theft-related crime, call our Fairfax criminal lawyer today at +1 888.695.6565. On this page, we discuss embezzlement in Virginia.

Fairfax Criminal Lawyer Answers: What is Embezzlement?

Embezzlement in Virginia is “statutory,” meaning there is a specific code section defining the crime. Cases in Virginia have defined embezzlement as follows:

“[A person may be found guilty of embezzlement if he or she was] entrusted with possession of another’s [personal property, and then] converts such property to his own use or benefit.” i

In Virginia embezzlement is considered larceny, but at the same time, if a person is indicted for larceny and not embezzlement, then proof of embezzlement does not support conviction under the larceny indictment. ii

A Virginia embezzlement conviction may be either a misdemeanor or a felony. Regardless of whether it is a misdemeanor or felony in your case, we strongly suggest you seek counsel if faced with this charge: an embezzlement as a misdemeanor can result in incarceration for a year and thousands of dollars in fines (up to $2,500). All criminal charges stay on your adult criminal record forever, unless you are eligible later for expungement. You will not find some of the other obvious real-life consequences in the statutes concerning theft-crimes, but they may include:

  • harm to a person’s good reputation,
  • employment difficulties, and
  • a loss of credibility in future court cases, among things.

We take pride in helping people through tough times. At Vincenzes Law, we never judge, because simply put, judging others is not our job. Our duty does include: zealously representation of our clients, professional legal analysis of their cases, and effective communication and explanation with regards to the options they face.

What Does the Virginia Embezzlement Law Say?

If you have been charged with embezzlement and are researching the law to determine the maximum penalty you could be faced with, the first thing to realize and understand is that speaking to a legal professional can and almost always will save you a lot of time and confusion, and you can do so for free if your charge is in Northern Virginia; this is true even if you do not hire a lawyer. Some criminal defense lawyers in Virginia offer free consultations, and if so, they may be willing to explain to you the penalties you face after assessing your facts. Our Fairfax, Virginia criminal lawyer is one such professional. We explain not only the strengths and weaknesses of a case, potential penalties, but also certain defenses if applicable…at no-cost whatsoever. There really is much more to assessing potential consequences than merely reading the specific Code sections.

“Constructive Possession” Term

Embezzlement refers to property transferred or delivered to a person who is meant to take custody, but the true owner retains the “title” to the property (legal ownership). This is sometimes referred to as “constructive possession.” This may seem like it is of little consequence, but if the property was not entrusted to the person charged, then it is a different offense.

If charged with embezzlement in Virginia, check your Virginia Uniform Summons to determine whether you are accused of embezzling money or property valued at an amount either:

  1. less than $200, or
  2. greater than or equal to $200.

In either case, the crime is punishable by potentially lengthy jail sentences and hefty crimes.

Embezzlement is Considered Either Petit or Grand Larceny

It is considered “petit” larceny if the property is valued at less than $200, and as mentioned, a first offense is a misdemeanor. It is “grand” larceny, a felony, if the value of the property is greater than or equal to $200.

What if I Want to Dispute the Value of the Items?

If you believe the value of the items or money you have been accused of embezzling is not properly reflected on the Summons or by the charge, our Fairfax embezzlement lawyer and criminal attorney can assess your facts and give you a professional opinion.

Virginia Embezzlement Penalties:

First Offense, Value Less than $200

Virginia embezzlement, if a misdemeanor, is still very severe.  It is the most serious type of misdemeanor in Virginia: a “Class 1.” A judge has the ability to sentence a convicted person to up to a year in jail, and assess a $2,500 fine (or both).  Practically speaking though, our Fairfax criminal lawyer can explain how you might be able to take certain steps to reach a much less severe sentence.

First Offense, Value $200 or More

When a person is accused of embezzlement and it is charged as a felony, then the convicted person can be sentenced to imprisonment in a state correctional facility for at least one year, but up to a maximum of 20 years. Additionally, a fine may be assessed in the amount of $2,500.

Subsequent Offenses

In Virginia, embezzlement is sentenced as larceny. If convicted of larceny “or any offense deemed to be or punished as larceny,” and that person is found to have been convicted in Virginia or other state for a crime “substantially similar,” then there is a mandatory minimum jail sentence the judge must order for a period of 30 days, up to a maximum of 12 months. It does not matter whether or not the prior offense was a misdemeanor or felony.

If the convicted individual has two prior larceny or substantially similar convictions, then the offense is automatically considered a Class 6 felony. For information on Virginia misdemeanors and their varying degrees of penalties, visit our Virginia Misdemeanors page; for Virginia felonies, visit our Virginia Felony page.

Property Covered by the Virginia Embezzlement Law(s)

The general components of an embezzlement charge in Virginia are outlined below in the following section, “What the Commonwealth Must Prove.” In this section, we discuss the types of property subject to a potential embezzlement charge. It is embezzlement if a person in Virginia “wrongfully and fraudulently” disposes, conceals, converts, or uses any tangible or intangible personal property, including:

  • Money
  • Bills,
  • Notes,
  • Checks
  • Orders
  • Drafts,
  • Bonds,
  • Receipts, and
  • Bills of lading

Additionally, the Virginia Code lists the following examples of property capable of being embezzled, but it is not limited to this list:

  • Computers
  • Computer networks
  • Financial instruments
  • Computer data, including programs and software
  • Computer “services”

Essentially, any form of personal property is capable of embezzlement in Virginia, including intangible property such as software and data. Furthermore, the law states that it does not matter that the data is not in a format “readable by humans or by a computer.” Land, or real-estate property, is not personal property. When an item is affixed to the building and is part of its essential purpose, it generally is not personal property.

“Example: in one case arising out of the Commonwealth of Virginia, an air compressor attached to the building via wires and hoses was considered personal property.” iii

What the Commonwealth Must Prove

For a Virginia Embezzlement Misdemeanor:

  1. the defendant acted wrongfully and fraudulently
  2. by converting, using, concealing, or disposing property belonging to someone else,
  3. with the intention of permanently depriving the true owner of the property’s use; and
  4.  the property was entrusted to the defendant by nature of employment, office or position, and
  5.  the value of the property was less than $200.

For a Virginia Embezzlement Felony:

  1. the defendant acted wrongfully and fraudulently
  2. by converting, using, concealing, or disposing of property belonging to someone else,
  3. with the intention of permanently depriving the true owner of the property’s use;
  4.  the property was entrusted to the defendant by nature of employment, office or position, and
  5.  the value of the property was greater than, or equal to $200.

Does Intention Matter? Question our Fairfax Criminal Lawyer Receives Often

Yes. In Virginia, to convict someone of a criminal offense, almost always the Commonwealth will have to prove that beyond a reasonable doubt, the defendant possessed a certain “mental-state.” Many laws use the words, “intentionally,” or “knowingly.” With regard to Virginia embezzlement, the Code uses the words “wrongful and fraudulent” to describe the criminal intent.  As our Fairfax criminal lawyer shall discuss in a later section if a person truly believed he or she had a right/claim to the property, then it is (or should not be) charged as embezzlement in Virginia.

Another important point related to the intent or state of mind of the defendant has to do with “time.” If the defendant had no intent to carry out the unlawful act related to the property before he or she came into possession, then embezzlement is the right charge. If the defendant did have the intent to carry out the illegal act before he or she obtained the property, then in such a case, it might be a different charge referred to as, “larceny by false-pretenses.”

What does it mean to “convert” something?

Our Fairfax criminal lawyer can explain whether your unique facts amount to a “conversion.” Generally, a conversion is a term used to refer to a wrongful use or application of control over another person’s personal property. It does not always matter if the person benefiting from the wrongful use was not the defendant.

Fairfax Criminal Lawyer Provides: Examples of Virginia Embezzlement Cases

Sufficient Evidence of a Criminal Intent

In one case, a defendant who was terminated from his job was asked to return equipment belonging to the former employer. The defendant lied about the location of the equipment and did not respond to attempts by the employer to obtain their equipment. It was held that there was still sufficient intent to commit embezzlement. v

Examples of Insufficient Evidence

In a case involving a company bookkeeper, the court found the defendant could not be convicted when the only evidence was a discrepancy between the cash receipts as indicated by the company books and record vs. the combined total of cash on hand and deposits. vii

Another case in Virginia resulted in a court finding that the Commonwealth did not produce sufficient evidence to prove criminal intent, because the defendant was a brand new employee who received an envelope and “little direction” as to how to handle the envelope (which contained money)…and there was no evidence to prove the defendant actually knew there was money inside the envelope. viii

Insufficient Evidence that a Specific Person was the Embezzler

In Virginia, the courts have held that mere proof of the misuse of property entrusted to the possession of the accused is insufficient, standing alone, to prove that the accused was the embezzler. vi

Some Potential Virginia Embezzlement Defenses

If most of the illegal acts are alleged to have occurred outside of the Commonwealth, it is worth noting that it usually will not make a difference. Even if the alleged actions took place mainly outside of the Commonwealth of Virginia, there is authority allowing Virginia to prosecute the case. iv

It is not embezzlement at all if the defendant truly believed in good faith that he possessed a right to the property alleged to have been wrongfully and fraudulently misused, converted, disposed of, or concealed. Embezzlement requires a lack of such good faith belief regarding the right to take the alleged action in question.

Many other potential defenses exist, but because they are so factually dependent, we do not list every possible defense on any of our informational pages. Please call our Fairfax criminal lawyer for a thorough analysis of your case.

Other Less-Common Embezzlement Related Offenses

If the embezzlement law you are accused of violating is not under Code section 18.2-111, then you may be a government employee (if charged under 18.2-112), or someone in custody of public funds. If you are accused of violating the Code section 18.2-111.2, then the case likely involves an employer as the defendant.

Embezzlement by Officers of Public Funds in Virginia

This particular embezzlement law contains the prescribed punishment in the case of an embezzlement arising from a case where certain government employees are alleged to have “knowingly” misused, misappropriated, or disposed of public funds. This Code section, if violated, will result in a Class 4 felony if convicted. A Class 4 felony is punishable in Virginia by:

“a term of imprisonment of not less than two years nor more than 10 years and . . .  a fine of not more than $100,000.”

Another Virginia Code section labels the “misuse of public assets” a Class 4 felony in some cases if it involves value in an amount greater than $1,000 in a period of 12 months. Specifically, this law (section 18.2-112.1) applies to full-time employees of the Commonwealth of Virginia or any city/town/county/subdivision. If the public funds or assets were used for a legitimate government interest, however, such facts may provide for a valid defense.

There may be even more subtle nuances to a theft-related charge, including aspects related to the defendant’s record, whether or not the defendant is an entity, or others. Whether your charge or accusation is related to embezzlement as a felony or misdemeanor, it is not a good idea to rely on information on the internet, regardless of the source. If charged, you deserve an analysis by a professional.

Our focused Fairfax criminal lawyer can help you or your loved one understand the true nature of the crime alleged, why the Commonwealth might be pursuing the charge as opposed to a different charge or no charge at all, and what it will cost for you to hire our Fairfax criminal lawyer.

Embezzlement Offense Related to an Employer Failing to Make a Court-Ordered Child Support Payment on Behalf of Employee

This very specifically worded statute applies to employers that are alleged to have:

  1. Withheld money from an employee’s rightful earnings; and
  2. Failed to make a payment of the money withheld for purposes of court-ordered child support.

Additionally, for criminal liability under this law the employer must have acted “wrongfully and fraudulently.”

If you are an employer and are charged with violation of this law, ask our Fairfax criminal lawyer whether your case is truly embezzlement as described by Virginia Code 18.2-111.2.

Borrowing a Vehicle without Consent

Is it a criminal offense to borrow someone’s vehicle if they gave their consent on some other occasion? What about if the consent to borrow their car was communicated improperly and there is simply a misunderstanding? These questions relate to the “unauthorized use” law found in The Code of Virginia, section 18.2-102.

Taking a vehicle or boat (or aircraft, animal, or vessel) when the owner is not present, and when the owner has not provided consent, is a Class 6 felony. However, the borrower of the property must not have had a criminal intent to permanently deprive or steal the vehicle, boat, aircraft, animal, or vessel. The intent must have been only to “temporarily deprive” the owner of possession. Usually this charge is a Class 6 felony, because the nature of a vehicle, boat, or other item covered by this law almost always is worth more than $200. But, if the facts are such that the value is actually less than $200, it is a Class 1 misdemeanor instead of a felony.

“What if I Received Consent on a Prior Occasion?”

Consent is not assumed to have existed, nor is it presumed to have been implied solely based on the fact that a person was given consent to borrow a vehicle on a prior occasion.

What if I was A Passenger and Not the Driver of the Vehicle?

Any person deemed to have been an accomplice, person who provided assistance, or accessory to an unauthorized taking may be punished just the same as the primary offender, called the “principal offender.”

Fairfax Virginia Embezzlement defense

It is a good idea to meet with our criminal defense firm to take advantage of our free consultation if charged or accused of committing any theft offense, including embezzlement. We strongly encourage you to setup a no-obligation appointment with our firm even if you did break the law and think a guilty verdict is inevitable given the facts as you understand them. Why does it matter? It matters because we can potentially work to negotiate a relatively positive outcome even in light of negative factual circumstances.

references

Cases

[i] Evans v. Commonwealth, 226 Va. 292, 308 S.E.2d 126 (1983)

[ii] Commonwealth v. Bruhn, 264 Va. 597, 570 S.E.2d 866, 2002 Va. LEXIS 166 (2002)

[iii] McBride v. Commonwealth, No. 1947-02-4, 2003 Va. App. LEXIS 428 (Ct. of Appeals Aug. 5, 2003).

[iv] Keselica v. Commonwealth, 24 Va. App. 115, 480 S.E.2d 756 (1997).

[v] Magouirk v. Commonwealth, No. 2768-97-1 (Ct. of Appeals Nov. 24, 1998).

[vi] Zoretic v. Commonwealth, 13 Va. App. 241, 409 S.E.2d 832 (1991). –

[vii] Webb. V. Commonwealth, 204 Va. 24, 129 S.E.2d 22 (1963).

[viii] Waymack v. Commonwealth, 4 Va. App. 547, 358 S.E.2d 765 (1987)

Some other cases relevant to embezzlement

Bain v. Commonwealth, 215 Va. 89, 205 S.E.2d 641 (1974)

Cera v. Commonwealth, No. 0432-94-4 (Ct. of Appeals May 2, 1995)

Simmons v. Commonwealth, 219 Va. 181, 247 S.E.2d 359 (1978).

Embezzlement Related Virginia Code Sections Discussed:

§ 18.2-111. Embezzlement deemed larceny; indictment.

§ 18.2-111.2. Failure to pay withheld child support; embezzlement.

§ 18.2-112. Embezzlement by officers, etc., of public or other funds; default in paying over funds evidence of guilt.

§ 18.2-112.1. Misuse of public assets; penalty.

§ 18.2-152.8. Property capable of embezzlement.

§ 18.2-95. Grand larceny defined; how punished.

§ 18.2-96. Petit larceny defined; how punished.

§ 18.2-104. Punishment for conviction of misdemeanor larceny.

§ 19.2-245. Offenses committed without and made punishable within Commonwealth; embezzlement or larceny committed within Commonwealth; where prosecuted.

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Brenton D. Vincenzes is a lifelong Fairfax County resident and Fairfax Criminal Defense Lawyer. He is a member of the Virginia Association of Criminal Defense Lawyers, National College of DUI Defense, NORML, and has been awarded the following in 2014-15: Top 100 Trial Lawyer (National Trial Lawyers) Top 40 Under 40 Trial Lawyer (National Trial Lawyers) Nationally Ranked Top 10 Under 40 Defense Attorney (National Academy of Criminal Defense Attorneys) 10 Best in Client Satisfaction for Criminal Defense (American Institute of Criminal Law Attorneys) Nationally Ranked Top 1% Attorney Award Recipient (National Association of Distinguished Counsel) As a local leader, Mr. Vincenzes mentors troubled youths, volunteers his time to serve at his church, takes select pro bono clients, and strives to improve the community. Mr. Vincenzes represents men, women, and juveniles through zealous and diligent advocacy, strategic planning, and skilled trial work preparation. Mr. Vincenzes' areas of criminal law practice are broad, and include most felonies and misdemeanors such as: reckless driving, DUI & DWI, drug offenses, assault and battery, domestic violence, assault on an officer, destruction of property, alcohol offenses, firearm offenses, larceny, shoplifting, embezzlement, fraud, and other theft offenses, and moving traffic violations among others. His private legal services are available in most Northern Virginia jurisdictions, including Fairfax County, Arlington County, Prince William County, Loudoun County, Stafford County, Alexandria, Manassas, Leesburg, South Riding, and other cities and towns.

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