                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Chafin and Senior Judge Annunziata
              Argued at Alexandria, Virginia
UNPUBLISHED




              ROGER BOWMAN
                                                                               MEMORANDUM OPINION * BY
              v.     Record No. 0787-11-4                                       JUDGE TERESA M. CHAFIN
                                                                                   FEBRUARY 5, 2013
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                                                Jan L. Brodie, Judge

                               Maynard M. Henry, Sr., for appellant.

                               Leah A. Darron, Senior Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                    Roger Bowman (“appellant”) was convicted by a jury of grand larceny by embezzlement in

              violation of Code § 18.2-111. On appeal, appellant contends that the trial court erred by failing

              to grant his motion to strike based upon the fatal variance between the indictment issued against

              appellant and the facts proven at trial. 1 We agree and reverse appellant’s conviction.

                                                        I. BACKGROUND

                     On appeal, we review the evidence in the “light most favorable” to the Commonwealth.

              Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). Viewing the record

              through this evidentiary prism requires us to “discard the evidence of the accused in conflict with

              that of the Commonwealth, and regard as true all the credible evidence favorable to the


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        Appellant also contends on appeal that the trial court erred by denying his motion to set
              aside the verdict based upon the fatal variance and the trial court’s refusal to answer a question
              from the jury related to the relevance of this fatal variance. Because we find that the motion to
              strike the evidence was erroneously denied, we do not address this assignment of error.
Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221

Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and citation omitted).

       So viewed, the evidence proved that from May 2005 through March 2006, appellant was

an ITT specialist employed by Multimax, a subsidiary of Netco Government Service. Multimax

supplied ITT personnel. The Harris Corporation (“Harris”) subcontracted with Multimax to

assign five or six employees to work on a federal project called the Patriot Program affiliated

with the National Reconnaissance Office (“NRO”). Appellant was one of the employees

assigned to the project. He was employed full time as an hourly wage employee working 40

hours per week. Appellant was paid based on the number of hours he certified on his time

sheets. Multimax employees submitted their time sheets to Multimax supervisors who approved

them and sent them to Harris, who then paid Multimax. After paying Multimax, Harris sent the

time sheet invoices to its customer, namely, the federal government, for reimbursement. For the

period alleged in the indictment, appellant submitted time cards reflecting that he worked 1,736

hours for which he was paid $70,412.16. According to data from the access control system,

however, appellant only spent seventy-two hours on the job during this time period. 2

       During an investigation of the matter, appellant provided a handwritten statement

admitting that he was employed starting in February 2005 to work on the Patriot Program, but

that he did nothing for the first four to six months except sit in a room. He asked the Harris

project manager for another position, and when he did not get another position, he “got fed up”


       2
          Appellant’s job was to perform “desktop support,” meaning he loaded computers with
software. This required him to work on site, in the customer environment where he had access to
a secure network. The government buildings in which appellant was hired to work were
“classified facilities,” requiring use of site specific security badges to access and move around
the buildings. Appellant had to move through security doors and have access to the computers
on which he worked. Commonwealth’s Exhibit 3 was a document generated using information
from the access control system showing the dates and times of appellant’s access, egress, and
location in the classified buildings.

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and “stopped coming in every day.” He said he went to work several times a week to check

email, but he completed his time cards from home and studied for his Cisco Certified

Networking Professional Security certification. Appellant submitted his resignation to Multimax

on March 13, 2006.

       On September 20, 2010, the grand jury indicted appellant, charging that

               [o]n or about the 1st day of May, 2005, and continuing through the
               31st day of May, 2006, in the County of Fairfax, [appellant] did
               unlawfully, and feloniously, wrongfully and fraudulently with the
               intent to deprive permanently the owner thereof, embezzle good
               and lawful currency of the United States in excess of $200.00,
               property of Harris Corporation, by virtue of his office, trust, or
               employment.

       At the conclusion of the Commonwealth’s evidence at trial, appellant rested without

presenting any evidence and moved to strike on the ground that he could not have wrongly

deprived Harris of funds as alleged in the warrant and indictment because he was not employed

by Harris. The motion to strike was denied.

                                          II. ANALYSIS

       Appellant contends on appeal that this Court should reverse his conviction because a fatal

variance exists between the indictment and the proof at trial. This argument rests on the

assertion that the indictment alleged embezzlement from Harris, but the Commonwealth failed to

prove that appellant was employed by or was in “privity of contract or relationship” with Harris.

Without this connection, appellant argues, he could not have wrongly deprived Harris of funds.

       “The point of an indictment ‘is to give an accused notice of the nature and character of

the accusations against him in order that he can adequately prepare to defend against his

accuser.’” Purvy v. Commonwealth, 59 Va. App. 260, 265-66, 717 S.E.2d 847, 850 (2011)

(quoting King v. Commonwealth, 40 Va. App. 193, 198, 578 S.E.2d 803, 806 (2003)). A

variance arises when an indictment varies from the proof at trial. However, not every variance is

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fatal. A fatal variance must be one that charges a wholly different offense than the one proved, –

such as charging theft of money by false pretenses from victim A, while proving only theft of

money by false pretenses from victim B, Gardner v. Commonwealth, 262 Va. 18, 546 S.E.2d 686

(2001), or charging a defendant with shooting into one woman’s residence while proving that he

shot into another woman’s residence, Etheridge v. Commonwealth, 210 Va. 328, 171 S.E.2d 190

(1969). “[A] variance will be deemed fatal ‘only when the proof is different from and irrelevant

to the crime defined in the indictment and is, therefore, insufficient to prove the commission of

the crime charged.’” Purvey, 59 Va. App. at 267, 717 S.E.2d at 850 (quoting Stokes v.

Commonwealth, 49 Va. App. 401, 406, 641 S.E.2d 780, 783 (2007)). In other words, the offense

must be proved as charged. See Mitchell v. Commonwealth, 141 Va. 541, 560, 127 S.E. 368,

374 (1925).

       In this case, the indictment charged appellant with embezzlement of over $200 from

Harris in violation of Code § 18.2-111. Code § 18.2-111 states in pertinent part,

               If any person wrongfully and fraudulently use, dispose of, conceal
               or embezzle any money, . . . 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.

(Emphasis added). A conviction of embezzlement requires the Commonwealth to prove that

(1) “a relationship such as that of employment or agency between the owner of the money and

the defendant” and (2) “that the money alleged to have been embezzled must have come into the

possession of the defendant by virtue of that relationship.” Ratliff v. Commonwealth, 20

Va. App. 43, 46 n.2, 455 S.E.2d 259, 260 n.2 (1995) (citing Black’s Law Dictionary 522 (6th ed.

1990)). The evidence clearly proved that appellant was not in a position of trust with Harris. He

was a direct employee of Multimax. Appellant submitted his time sheets to Multimax

supervisors who approved them and sent them to Harris, who then paid Multimax.
                                               -4-
       Thus, because the evidence failed to link appellant with Harris, the Commonwealth’s

evidence was insufficient to sustain appellant’s conviction for violating Code § 18.2-111 as

charged in the indictment.

                                                                                        Reversed.




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