Elements of the Offense
To secure a conviction for the felony offense of embezzlement in Virginia, the government must prove that: (1) the defendant wrongfully and fraudulently converted, used, concealed or disposed of the property of another with the intent to permanently deprive the rightful owner of the use thereof, (2) the property had been entrusted by someone else to the defendant by virtue of the defendant’s employment, office or position, and (3) the value of the property was $200 or more.
If the value of the property is less than $200, the defendant can be convicted of embezzlement as a misdemeanor.
There is no embezzlement when property is taken under a bona fide claim of right; that is, when the person appropriating the property has a good faith belief as to some right to the property.
“Conversion” is defined as the “unauthorized and wrongful exercise of dominion and control over another’s personal property, to the exclusion of or inconsistent with the rights of the owner. The appropriation can be either for the use of the person charged with embezzlement or for the use of another.
There are two major differences between the offenses of embezzlement and larceny by false pretenses. The first difference concerns the timeframe for the criminal intent. In larceny by false pretenses, the criminal intent occurs at the time of the taking. By contrast, the criminal intent with embezzlement occurs after the property is already in the possession of the person charged with the offense.
The second difference concerns the nature of the possession. In embezzlement, the rightful owner of the property passes only “custody” of the property to the person charged with the offense, while retaining “constructive possession” or title. In larceny by false pretenses, title passes at the time of the taking. Virginia Criminal Code § 18.2-111. Virginia Criminal Code § 18.2-95. Virginia Criminal Code § 18.2-96. Virginia Criminal Code § 18.2-152.8.
The penalty for a first-time conviction of embezzlement as a felony is imprisonment of one to 20 years in the state correctional facility, confinement in jail for up to 12 months, and/or a fine of up to $2,500. The offense as a misdemeanor is punishable by a maximum 12 months in jail and/or a fine of up to $2,500. Virginia Criminal Code § 18.2-111. Virginia Criminal Code § 18.2-95. Virginia Criminal Code § 18.2-96. Virginia Criminal Code § 18.2-152.8.