State v. Willard-Freckleton (2005-334, 2005-335 & 2005-336)
State v. Willard-Freckleton (2005-334, 2005-335 & 2005-336)
2007 VT 67A
This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court,
2007 VT 67A
Nos. 2005-334, 2005-335 & 2005-336
On Appeal from
District Court of
Unit No 1,
Victoria E. Willard-Freckleton December Term, 2006
Calista L. Tanner
John P. Wesley, J.
William H. Sorrell, Attorney General, David Tartter, Assistant Attorney General, and Sara R.
Parsowith (On the Brief),
Matthew F. Valerio, Defender General, and Anna Saxman, Deputy Defender General,
PRESENT: Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.
BURGESS, J. The State appeals the district
court’s grant of motions to dismiss by defendants Victoria Willard-Freckleton, Calista Tanner, and
Kara Orfanidis in three unrelated but factually
similar cases. The three defendants were accused of stealing cash
receipts from their employers. All three cases raise the question of
whether an employee who steals property placed under her care, but remaining in
her employer’s constructive possession, violates the embezzlement statute, 13
V.S.A. § 2531. The trial court, following State v. Ward, 151 Vt.
448, 562 A.2d 1040 (1989), ruled that employees who take money already held in
the constructive possession of their employers could not be guilty of
embezzlement because there was no conversion of the money while in the legal
possession of the employee.
The trial court dismissed
the charges against the three defendants pursuant to
I. The Facts
A. State v. Willard-Freckleton
Victoria Willard-Freckleton was manager of a Dunkin’ Donuts in
B. State v. Tanner
Calista Tanner worked at the Rockingham branch
of Halliday’s Flower Shop. On February 19,
2005, she traveled to Halliday’s
C. State v. Orfanidis
On seven separate occasions
in January and February 2005, Kara Orfanidis stole
money from the cash register of her employer, a Fleming Oil gas station in
II. The Law
¶ 6. The State charged all three defendants with embezzlement under 13 V.S.A. § 2531. That statute provides:
[A] clerk, agent, bailee for hire, officer or servant . . . who embezzles or fraudulently converts to his own use, or takes or secretes with intent to embezzle or fraudulently convert to his own use, money or other property which comes into his possession or is under his care by virtue of such employment, notwithstanding he may have an interest in such money or property, shall be guilty of embezzlement . . . .
13 V.S.A. § 2531. We have, to date, understood
embezzlement and larceny to be mutually exclusive; embezzlement applying only
when an accused, in lawful possession of property on behalf of the intended
owner, converts that property to his own use before passing it to the owner’s
possession. In preempting legal possession by the owner, there is no
trespass against that possession to complete the theft, and without a trespass
there is no larceny. Thus, in State v. Ward this Court overturned
an embezzlement conviction where an employee removed money from a cash
¶ 7. Here the State does not allege embezzlement of monies in the legal possession of the employees. Rather, in each of these three cases the State charged the defendant with taking money that “came into her care” by virtue of her employment. The State argues that the statute not only outlaws traditional embezzlement by an employee of “property which comes into his possession,” but also expressly extends embezzlement to apply to an employee who wrongfully “takes . . . money or other property which comes . . . under his care by virtue of such employment.” The State contends that Ward erred in focusing solely on possession without considering the statute’s alternative language covering an employee’s theft of property “under his care.” The State maintains that Ward’s requirement of lawful possession by the thief in every embezzlement case renders the “under his care” phrase nugatory, a result contrary to standard statutory construction. See Holton v. Dep’t of Employment & Training, 2005 VT 42, ¶ 21, 178 Vt. 147, 878 A.2d 1051 (“Our rules of statutory construction require us to consider the statute as a whole, giving effect to a statute’s every word, sentence, and clause, when possible.”).
Ward’s holding is not without support from outside
authorities, even in a few jurisdictions with similar statutes. See,
e.g., State v. Weaver, 607 S.E.2d
599, 605 (N.C. 2005) (maintaining distinction between larceny and embezzlement
based on lawful possession).
These decisions focus not so much on the wording of the applicable statutes,
but rather on earlier common law and English
statutes. Under the common law, larceny required a trespass in the
taking, i.e., a taking from someone else’s lawful possession. 3 W. LaFave, Substantive Criminal Law §
19.6(a), at 99 (2d ed. 2003). Thus, one already in lawful possession of
another’s property who converted the property to his or her own use could not
be guilty of larceny.
Unlike the early English
statutes, 13 V.S.A. § 2531 includes the phrase “under his care,” which
encompasses more than takings that occur while the defendant is in legal
possession. Other jurisdictions have long interpreted statutes with
similar phrases to extend embezzlement to property in the defendant’s
custody. See, e.g., Henry v. United States, 273 F. 330, 334 (D.C.
Cir. 1921) (“The phrase ‘under his care’ will cover property merely in his
custody, and therefore, under such a statute, it is immaterial whether he
receives possession of the property from a third person or from his master; for
in either case the property is under his care, and if he converts it he is
guilty of embezzlement.”);
see also LaFave, supra, § 19.6(e)(1), at 108
(noting that statutes using the phrase “in his possession or under his care”
apply “without regard to the subtle distinction between custody and
possession”); id. n.49 (collecting cases).
Courts have understood these embezzlement-by-employee statutes as criminalizing
the breach of trust by workers who steal property that is in their care by
virtue of their employment. Henry, 273 F. at 339; Grin v. Shine,
Though generally bound by
the principles of stare decisis to follow past
precedent, we are not “slavish adherents” to this doctrine, O’Connor v. City
of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.),
and will overrule prior case law “when it is determined that an earlier
decision is simply wrong.” Wilk v. Wilk, 173
III. Applying the Law
¶ 11. The parties do not address the question of whether, given this Court’s reversal of the district court’s dismissal of the instant cases based on its interpretation of existing law, our decision should be applied to these cases. Considering the state of the evidence at this stage of the proceedings, we do not address this question, but rather leave the issue for the trial court to resolve, if raised, when the facts are established to the point that the relevant criteria can be applied.
Reversed and remanded.
FOR THE COURT:
 Rulings to this effect in other
states that had similar statutes have been superseded by newer statutes that
consolidate most theft crimes. See Aabel
v. State, 126 N.W. 316, 319 (
 See, e.g., Nolan v. State,
131 A.2d 851, 858-60 (
 Accord Gill
v. People, 339 P.2d 1000, 1003, 1005 (
 Review of the state’s information in Ward reveals that the defendant was charged, as here, with embezzling monies “under his care.” However, the matter of today’s statutory interpretation was neither raised nor resolved in the Court’s decision.