William Edward Waldrop v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: December 29, 1995
• Docket: 2094942
• Status: Unpublished

Opinion

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.

- 2 - 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 - 3 - 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).

- 4 - 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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