                     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.




                                    1
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




                                 2
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
     1
      Code § 18.2-111 provides as follows:



                                  3
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.



                                  4
             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



                                   5
           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




                                 6
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.




                                 7
