Bragg v. Commonwealth (Va. App. 2004)
Background. David was a volunteer treasurer at his church. His duties allowed him to write and sign checks on behalf of the church and reconcile the church's bank accounts. David began using church funds to pay a number of personal debts, including his mortgage, his cell phone bill, a car loan, and other personal expenses. On several occasions, he made the checks payable to himself and indicated "payroll" on the checks. After the end of his two-year term as treasurer, his successor discovered the discrepancies in the church's accounts. It was later determined that 142 checks, worth $82,130, had been "written outside the scope of David's authority and for his benefit." The church informed the police.
David admitted to the police that he had embezzled money from the church to pay personal bills. He explained that he began embezzling the church's money when his income from his employment dropped by $30,000 and he began to have financial difficulty. He used his position as treasurer of the church to embezzle the church's funds to pay his bills and support his lifestyle. He stated, "I was broke. I had no money. I was getting ready to lose everything." He took the church funds "to continue living."
David also admitted to the police that he wrote checks to a friend "for computer work that he did for me," gave another individual a check for $750 on Christmas Eve, and took the same person with him on a trip to Israel, costing $3,572. All of these expenses were incurred after David began embezzling from the church, when he claimed he needed the funds to cover living expenses.
David was later charged with 5 separate counts of embezzlement. He argued that the five embezzlement counts should have been "merged" into a single count since he had "a continuous desire to take the money for on-going bills." The state argued the embezzlement was a "series of individual impulses." The trial court agreed with the state. It concluded that the funds were embezzled on "individual impulses" and were not based on a "preformulated plan". It concluded:
He embezzled these funds as the needs arose and his bills came due and that to some extent is corroborated or reflected in the dates and groupings of the checks and in the time intervals that exist between the various checks …. There is no regular pattern. He was apparently incurring substantial personal debt for what most people would consider discretionary items, such as trips and expenses for other individuals.
A jury convicted David on all 5 counts of embezzlement, and he appealed. He did not deny his guilt, but insisted that since he wrote the 142 checks under a "single impulse" he should have been charged with a single count of embezzlement.
The court's decision. A state appeals court agreed that "a series of larcenous acts will be considered a single count of larceny if they are done pursuant to a single impulse and in execution of a general fraudulent scheme." The court listed the following factors to be considered in deciding if a series of thefts is one crime or multiple crimes: (1) the location of the items taken; (2) the lapse of time between the takings; (3) the general and specific intent of the taker; (4) the number of owners of the items taken; and (5) whether intervening events occurred between the takings. However, "the primary factor to be considered is the intent of the thief."
The court applied this five-factor test to the facts of this case and concluded that David was properly charged with five separate crimes instead of one.
(1) location of items taken. The court noted that "the church was the only victim, perhaps suggesting a single intent."
(2) lapse of time between takings. The lapse of time from the first act of embezzlement to the last was 25 months. The court concluded that "such a length of time constitutes a factor indicating the acts were separate."
(3) intent of the taker. David testified he did not form a general plan to steal church funds every time a bill came due. This testimony, the court concluded, "supports the trial court's finding that he acted on individual impulses, not to further a general scheme." The court also noted:
When a debt was due, it created the "need" to embezzle again. David claimed that he cashed the checks to "continue living" because he could not pay his bills otherwise. According to his own testimony, he did not intend to continue taking money from the church. Only when a debt arose that he could not pay from his own income would he cash a check from the church. After paying that debt, he had no intention to embezzle again. These debts were intervening acts that created individualized intentions to embezzle. Further, the trial court properly concluded that David, by using funds for making gifts to third parties, evidenced a series of single impulses. His bills for computer services, his extravagant gifts, and his international trip rebutted any general and continuing need for basic living expenses.
The fourth and fifth factors in the five-factor test were not applicable in this case and were not considered by the court.
What this means for churches
If someone with access to church funds engages in embezzlement over a period of time rather than in one act, and the matter is turned over to the police, a decision must be made whether to prosecute the thief for one crime or several crimes. Church leaders often assume that continuing acts of embezzlement will be treated as a single offense. But, as this case shows, this will not always be the case. Persons who engage in repeated acts of embezzlement may be charged with several separate offenses, and this will greatly expand the potential prison sentence of the offender. This is an important, and often overlooked, consequence of embezzlement.
