Gene Luis Cera v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Fitzpatrick
Argued at Alexandria, Virginia
GENE LUIS CERA
v. Record No. 0432-94-4 MEMORANDUM OPINION * BY
JUDGE JOHANNA L. FITZPATRICK
COMMONWEALTH OF VIRGINIA MAY 2, 1995
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
James H. Chamblin, Judge
Lorie E. O'Donnell, Assistant Public Defender (Office of
the Public Defender, on brief), for appellant.
Leah A. Darron, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.
Gene Luis Cera (appellant) was convicted in a jury trial of
grand larceny in violation of Code § 18.2-95. On appeal, he
argues that the trial court erred in: (1) denying his motion to
dismiss the grand larceny charge based on a speedy trial
violation, and (2) failing to allow him to refresh the
recollection of a witness. We disagree and affirm the trial
court.
BACKGROUND
Appellant was arrested in January 1993 for embezzlement in
violation of Code § 18.2-111. On February 16, 1993, the district
court found probable cause in the preliminary hearing on the
warrant charging embezzlement. On March 9, 1993, based on the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
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same incident, a grand jury straight-indicted appellant for grand
larceny in violation of Code § 18.2-95. Appellant remained free
on bond pending trial. Appellant was convicted of grand larceny
in a jury trial on December 1, 1993. Prior to trial, appellant
moved to dismiss, arguing that the Commonwealth violated his
right to a speedy trial under Code § 19.2-243 by prosecuting him
for grand larceny more than nine months after his preliminary
hearing on the embezzlement charge.
Appellant began working for Culinary Delights, a catering
company, in August 1992. In September and October 1992,
employees of Culinary Delights reported equipment missing.
Appellant left Culinary Delights in November 1992 to begin his
own catering business. Bill Surface (Surface), an employee of
Culinary Delights, helped appellant with a party in December 1992
and noticed equipment belonging to Culinary Delights. Surface
testified that appellant asked him to steal equipment from the
Westpark Hotel. The Commonwealth introduced into evidence a
taped telephone conversation between Surface and appellant in
which appellant asked for Surface's help in stealing equipment.
In January 1993, Investigator Edward Fant (Fant) of the
Loudoun County Sheriff's Office obtained a search warrant for
appellant's residence. An employee of Culinary Delights
accompanied Fant during execution of the warrant and recognized
other items not listed in the warrant. Fant seized these items
pursuant to a second search warrant. At trial, Fant could not
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recall which items were listed on the first search warrant.
Appellant attempted to refresh Fant's recollection by showing him
the warrant. The Commonwealth objected to the use of the warrant
because it was not in evidence, and the trial court sustained the
objection.
SPEEDY TRIAL
Appellant argues that embezzlement and larceny are the same
charge for the purposes of applying the nine-month time
limitation of Code § 19.2-243, and as such, the nine months must
run from the date of the preliminary hearing on the embezzlement
charge, not from the date of indictment on the grand larceny
charge.
Code § 19.2-243 provides as follows:
If there was no preliminary hearing in
the district court, or if such preliminary
hearing was waived by the accused, the
commencement of the running of the five and
nine months periods, respectively, set forth
in this section, shall be from the date an
indictment or presentment is found against
the accused.
In Presley v. Commonwealth, 2 Va. App. 348, 344 S.E.2d 195(1986), this Court held that "'[w]hen an original indictment is
supplanted by a second indictment, the terms contemplated by the
statute are to be counted from the time of the second
indictment.'" Id. at 350-51, 344 S.E.2d at 196 (quoting Brooks
v. Peyton, 210 Va. 318, 322, 171 S.E.2d 243, 246 (1969)).
Code § 18.2-111 1 classifies embezzlement as a larceny crime
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Code § 18.2-111 provides as follows:
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and provides for punishment according to the larceny statutes.
Larceny is a common law crime that is regulated for punishment
purposes by Code § 18.2-95. 2 In Smith v. Commonwealth, 222 Va.
646, 283 S.E.2d 209 (1981), the Supreme Court of Virginia
distinguished larceny from embezzlement:
A person who takes personal property from the
possession of another without the owner's
consent and with intent to deprive him of
If any person wrongfully and
fraudulently use, dispose of, conceal or
embezzle any money, bill, note, check, order,
draft, bond, receipt, bill of lading or any
other personal property, tangible or
intangible, which he shall have received for
another or for his employer, principal or
bailor, or by virtue of his office, trust, or
employment, or which shall have been
entrusted or delivered to him by another or
by any court, corporation or company, he
shall be guilty of embezzlement. Embezzlement
shall be deemed larceny and upon conviction
thereof, the person shall be punished as
provided in § 18.2-95 or § 18.2-96.
2
Code § 18.2-95 provides as follows:
Any person who (i) commits larceny from
the person of another of money or other thing
of value of $5 or more, (ii) commits simple
larceny not from the person of another of
goods and chattels of the value of $200 or
more, or (iii) commits simple larceny not
from the person of another of any handgun,
rifle or shotgun, regardless of the
handgun's, rifle's or shotgun's value, shall
be guilty of grand larceny, punishable by
imprisonment in a state correctional facility
for not less than one nor more than twenty
years or, in the discretion of the jury or
court trying the case without a jury, be
confined in jail for a period not exceeding
twelve months or fined not more than $2,500,
either or both.
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possession permanently is guilty of common
law larceny. A person entrusted with
possession of another's personalty who
converts such property to his own use or
benefit is guilty of the statutory offense of
embezzlement.
222 Va. at 649, 283 S.E.2d at 210 (citation omitted).
We hold that the nine-month limitation began on the date of
indictment because no preliminary hearing was held on the grand
larceny charge. This situation is similar to the one in Presley,
in which the Commonwealth nolle prossed the first indictment and
sought a second one on the same charge. Here, the Commonwealth
abandoned the embezzlement charge and straight-indicted appellant
on the grand larceny charge. Additionally, embezzlement and
larceny are separate offenses with different elements. The key
distinction between embezzlement and larceny is that larceny
involves a trespassory taking of property while embezzlement
involves a conversion of property received with the owner's
consent. The two crimes are not the same offense for determining
time limits under Code § 19.2-243.
PRESENT RECOLLECTION REFRESHED
Appellant also argues that the trial court erred in
requiring him to introduce into evidence the first search warrant
before using it to refresh Fant's recollection of the contents.
In McGann v. Commonwealth, 15 Va. App. 448, 424 S.E.2d 706(1992), this Court addressed "present recollection refreshed" and
held that:
when a witness has a memory lapse on the
stand and "forget[s] some portion (or even
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all) of the facts of the matter about which
[he or she is] called to testify," a party
may attempt to "refresh" the witness's memory
by having the witness examine materials
relating to the matter for which they are
testifying. One method of refreshing a
witness's memory, commonly referred to as
"present recollection refreshed," permits a
witness who is unable to independently recall
all of his testimony to examine "any
material" and then "testify from independent
memory, which has supposedly returned to him
upon sight of the refreshing material."
Id. at 451-52, 424 S.E.2d at 709 (citation omitted) (quoting
Charles E. Friend, The Law of Evidence in Virginia § 18 (3d ed.
1988) (emphasis in original)). "'Refreshed' testimony is
admissible if it shows the witness'[s] memory was in fact
refreshed and that he or she was then testifying from his or her
independent recollection of the events." Potts v. Commonwealth,
12 Va. App. 1093, 1096, 408 S.E.2d 256, 257 (1991).
Assuming without deciding that the trial judge erred, we
hold that the error is harmless because it did not affect the
verdict. "[N]on-constitutional error is harmless 'when it
plainly appears from the record and the evidence given at the
trial that the parties have had a fair trial on the merits and
substantial justice has been reached.'" Lavinder v.
Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)
(en banc) (quoting Code § 8.01-678). Sufficient evidence
supported appellant's conviction, including: (1) the testimony
of Surface that he saw appellant using equipment belonging to
Culinary Delights; (2) the taped telephone conversation between
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Surface and appellant, in which appellant asked Surface to help
him steal catering equipment; and (3) the location of the stolen
equipment in appellant's home.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
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