                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Retired Judge Brown ∗
Argued at Salem, Virginia


JOHN DAVID McBRIDE
                                         MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1947-02-4            JUDGE RUDOLPH BUMGARDNER, III
                                              AUGUST 5, 2003
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
                    James H. Chamblin, Judge

          Felipita Athanas, Appellate Defender (Public
          Defender Commission, on briefs), for
          appellant.

          Jennifer R. Franklin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     A jury convicted John David McBride of misdemeanor

embezzlement, Code §§ 18.2-111 and -96.   He maintains the

evidence is insufficient to support his conviction because he

converted real property not personal property.   He also contends

the evidence fails to exclude the hypothesis that one of the

owners may have given him permission to take the property.     We

affirm the conviction.



     ∗
       Retired Judge J. Howe Brown, Jr., took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400.
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
        We view the evidence and the reasonable inferences fairly

deducible therefrom in the light most favorable to the

Commonwealth.       Dowden v. Commonwealth, 260 Va. 459, 467, 536

S.E.2d 437, 441 (2000).      The defendant leased a building from

Joan Andes in which to store his plumbing supplies. 1     The

building had been a garage and contained a car lift and an air

compressor.      The car lift was bolted to the concrete floor, but

the air compressor was simply attached with wires and an air

hose.       Andes considered the items "part of the building."

        On February 28, 2001, Andes noticed the lift was missing.

The defendant told her he had disassembled it and was storing it

at his home.      Andes made note to have the defendant return the

lift when he vacated the building.      Though not pleased, she did

not otherwise object.

        The defendant told his employee that he owned everything in

the building and wanted to get rid of the car lift and air

compressor.      The defendant exchanged the car lift for plumbing

work on the building's heating system and at his residence.         He

sold the air compressor to the same plumber for $200.

        The defendant maintains the car lift and air compressor

were real property, not personal property.      Assuming the

compressor was affixed to the realty, the trial court held it

was severed and became personal property.      Since the defendant


        1
       At trial, Andes owned the building with one other person.
The third owner that signed the lease had since died.
                             - 2 -
was convicted of misdemeanor embezzlement, we need only conclude

that one item was not a fixture to uphold his conviction.

     Embezzlement is the fraudulent conversion of personal

property entrusted to a defendant for his own purposes.    Code

§ 18.2-111.    Green v. Phillips, 67 Va. (26 Gratt.) 752 (1875),

established a three-part test to determine if an item is a

fixture.   The trial court assesses (1) the degree of permanency

with which the item is annexed to the real property, (2) the

adaptation of the item to the use or purpose to which the

property is devoted, and (3) the owner's intent to make it a

permanent accession to the land.    Id. at 759; State Highway and

Transp. Comm'r v. Edwards Co., 220 Va. 90, 94, 255 S.E.2d 500,

503 (1979).

     In Danville Holding Corp. v. Clement, 178 Va. 223, 16

S.E.2d 345 (1941), the landowner converted a silk mill into a

bakery.    In order to operate the bakery, he acquired heavy

machinery and securely fastened it to the building such that it

could not be removed easily or without great cost.   The Court

held that the machinery was essential to the purpose for which

the building was used.    Id. at 236, 16 S.E.2d at 351.   The

machinery was part of the realty and constituted a fixture.

     Whether an item is a fixture is a question of fact.        Id.

Examples of fixtures include:   an air conditioning compressor

"built into" the roof of a building, United States Fire Ins. Co.

v. Martin, 222 Va. 301, 303, 282 S.E.2d 2, 3 (1981) (defendant
                             - 3 -
conceded it was fixture); a coal conveyor system installed forty

years earlier, railroad tracks used for more than fifty years,

and twenty-ton truck scales completely enclosed in a structure

the owner erected for that purpose, Edwards Co., 220 Va. at

95-96, 255 S.E.2d at 504 (property essential to the operation of

a business); gas mains, Transcontinental Gas Pipe Line Corp. v.

Prince William Co., 210 Va. 550, 556, 172 S.E.2d 757, 761

(1970); a city's water works system (gates, pipes, hydrants),

City of Newport News v. Warwick County, 159 Va. 571, 603, 166

S.E. 570, 581 (1932); and a steam engine that furnishes power to

a factory, Green, 67 Va. (26 Gratt.) at 760.

     Important considerations are whether the item was

specifically designed for the building, can be removed without

injury to the property or building, can be used elsewhere, and

was installed for a temporary purpose.   159 Va. at 604, 166 S.E.

at 581-82.   If property is only useful to a building, i.e.,

sprinkler system, but not an indispensable part of it, it is not

a fixture.   Holt v. Henley, 232 U.S. 637, 641 (1914).

     The jury found the air compressor was personal property.

The record supports this finding.   To operate, the air

compressor had to be connected to a source of power and air had

to be delivered by an air hose.   The connection to the building

was merely by wires and a hose.   The compressor was easily

detached, and no evidence suggested the building or the

compressor were injured during its removal.    While tenants had
                             - 4 -
used the building for a garage, the defendant simply used it for

storage.   The compressor was not essential to the purpose for

which Andes leased, and the defendant used, the building.   It

was reasonable for the jury to find the owner did not intend to

make the compressor a permanent fixture and it was personalty.

The evidence supports the jury's factual finding.

     The defendant also maintains the Commonwealth failed to

prove he did not have permission from another owner to convert

the property.   It is the defendant's burden to prove he had

permission, and no evidence supports his theory.    Moreover, a

joint owner could not convert or sell Andes's half-interest.

See Raney v. Barnes Lumber Corp., 195 Va. 956, 966-67, 81 S.E.2d

578, 584-85 (1954) (mother and son owned land together, where

son never agreed to sell and mother not acting as agent for son,

there is no contract to sell property).   The jury's verdict is

supported by the evidence.

     Accordingly, we affirm the defendant's conviction.

                                                          Affirmed.




                              - 5 -
Benton, J., dissenting.

     I would hold that the evidence established that both the

compressor and the automobile lift were affixed to the realty

and that Virginia law does not recognize an embezzlement of

realty or fixtures of the realty.     Therefore, I dissent.

     The principle is well established that

          [i]n the absence of any specific agreement
          between the parties as to the character of a
          chattel placed upon the freehold, the three
          general tests are as follows: (1) Annexation
          of the chattel to the realty, actual or
          constructive; (2) Its adaptation to the use
          or purpose to which that part of the realty
          to which it is connected is appropriated;
          and (3) The intention of the owner of the
          chattel to make it a permanent addition to
          the freehold.

Danville Holding Corp. v Clement, 178 Va. 223, 232, 16 S.E.2d

345, 349 (1941).   The Supreme Court further explained the

elements of the tests as follows:

             While, under the first test, there must
          be actual or constructive annexation, the
          method or extent of the annexation carries
          little weight, except insofar as they relate
          to the nature of the article, the use to
          which it is applied and other attending
          circumstances as indicating the intention of
          the party making the annexation.

             The second test -- adaptation of the
          chattel to the use of the property to which
          it is annexed -- is entitled to great
          weight, especially in connection with the
          element of intention. If the chattel is
          essential to the purposes for which the
          building is used or occupied, it will be
          considered a fixture, although its
          connection with the realty is such that it
          may be severed without injury to either.
                              - 6 -
             The intention of the party making the
          annexation is the paramount and controlling
          consideration. The test of intention is
          given a broad signification. It does not
          imply a secret, undisclosed action of the
          mind of the owner of the property. The
          intention need not be expressed in words; it
          may be inferred from the nature of the
          article affixed, the purpose for which it
          was affixed, the relationship of the party
          making the annexation and the structure and
          mode of annexation.

             "If the proprietor of the land himself
          annexes the chattels, a doubt as to his
          intention to annex them permanently will in
          most cases be resolved in favor of such
          intent, upon the theory that his design is
          to place permanent improvements upon his
          property, which will enhance its usefulness
          and consequently its market value. Such
          fixtures are in general real fixtures and
          become a permanent part of the land or
          buildings to which they are attached."

Id. at 232-33, 16 S.E.2d at 349 (citation omitted).

     The lease between John McBride and the owner of the realty

provides that McBride "agrees to rent that certain space . . .

known as a garage building" and further provides that McBride

leased "with the option of a garage business."   The evidence

also proved that when McBride came into possession of the

building under the lease agreement the automobile lift was

bolted to the floor and the air compressor was attached to the

building by wires and an air pipeline.   The automobile lift and

air compressor are items generally found as fixtures in a

building that is used as a garage.   If there was any doubt about

the intention of the owner of the realty when leasing the garage

                             - 7 -
with those fixtures, it is dispelled by the testimony of the

owner that she "considered them part of the building."

     The Fourth Circuit has noted the traditional limitation on

larceny as follows:

           Embezzlement is a statutory crime which did
           not exist at common law. Common-law larceny
           offenses extended only to conversions of
           property involving a wrongful taking and
           asportation of the property, as well as
           wrongful control or detention. A defendant
           who obtained possession of property
           lawfully, in a fiduciary capacity, before
           converting it could not be convicted at
           common law. Embezzlement statutes were
           enacted to remedy the common law's
           deficiency.

United States v. Stockton, 788 F.2d 210, 215 n.4 (4th Cir.

1986).   Likewise, embezzlement is a statutory crime in Virginia,

Moss v. Harwood, 102 Va. 386, 389, 46 S.E. 385, 386 (1904), and

it "was devised by legislatures to address an inadequacy in the

common law of larceny."   Gwaltney v. Commonwealth, 19 Va. App.

468, 474, 452 S.E.2d 687, 690-91 (1995).

     The statute defines the crime of embezzlement in Virginia

as follows:

              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
                              - 8 -
          deemed larceny and upon conviction thereof,
          the person shall be punished as provided in
          [Code] § 18.2-95 or § 18.2-96.

Code § 18.2-111 (emphasis added).

     Interpreting this statute, which was in effect at the time

of McBride's indictment and conviction, the Supreme Court

explained the legislative intent to narrowly construe the

statute and held as follows:

          In 1994 . . . the General Assembly amended
          Code § 18.2-111 and deleted the language
          that permitted a defendant who had committed
          embezzlement to be "indicted as for
          larceny." The amendments further eliminated
          the phrase that made proof of embezzlement
          "sufficient to sustain the charge" of
          larceny and the requirement that the
          Commonwealth elect, upon motion of the
          defendant, the specific statutory theory of
          the crime of larceny it intended to rely
          upon for a conviction. The first sentence
          of the statute now provides that any person
          committing the described acts "shall be
          guilty of embezzlement." Code § 18.2-111.
          The only reference to larceny in Code
          § 18.2-111 is in its second sentence, which
          now states, "[e]mbezzlement shall be deemed
          larceny and upon conviction thereof, the
          person shall be punished as provided in [the
          larceny code sections]."

               . . . [T]hese amendments were not
          merely intended to eliminate "surplusage"
          from Code § 18.2-111 as the result of the
          1975 enactment of Code § 19.2-230 giving
          defendants the right to request a bill of
          particulars. "As a general rule, a
          presumption exists that a substantive change
          in law was intended by an amendment to an
          existing statute." Thus, in construing a
          state that has been amended by the General
          Assembly, we presume that the legislature
          acted with full knowledge of the law as it
          affected the subject matter.
                               - 9 -
               . . . [T]he 1994 amendments were not
          narrowly tailored to eliminate unneeded
          language, but constituted a complete
          reformulation of the statute. Most
          particularly, the elimination of the
          permissive provision that embezzlement could
          be "indicted as for larceny" evinces a clear
          legislative intent to prohibit that former
          practice and require specificity in the
          indictment.

               . . . [T]he continued association of
          embezzlement and larceny in the second
          sentence of Code § 18.2-111 is to "classify
          embezzlement as a larceny crime for the
          limited purpose of punishment according to
          the larceny statutes."

Commonwealth v. Bruhn, 264 Va. 597, 602-03, 570 S.E.2d 866, 869

(2002).

     Code § 18.2-111 by its express terms applies to

embezzlement of "personal property, tangible or intangible."

Thus, the Supreme Court of Virginia has consistently held that a

person is guilty of the statutory offense of embezzlement under

Code § 18.2-111 when that person is "entrusted with possession

of another's personalty . . . [and] converts such property to

his own use or benefit."   C.D. Smith v. Commonwealth, 222 Va.

646, 649, 283 S.E.2d 209, 210 (1981) (emphasis added).

Fixtures, on the other hand, are a part of the realty and are

not personal property.

             Penal statutes are to be strictly
          construed against the Commonwealth and in
          favor of a citizen's liberty. They cannot
          be extended by implication but must be
          confined to those offenses proscribed by the
          language employed. Further, before an
          accused can be punished, "his case must be
                              - 10 -
           plainly and unmistakably within the
           statute," and he is entitled to the benefit
           of any reasonable doubt concerning the
           statute's construction.

Harward v. Commonwealth, 229 Va. 363, 365, 330 S.E.2d 89, 90

(1985).   The evidence in this case did not plainly bring the

issue within the ambit of the statute and, thus, was not

sufficient to sustain the conviction.

     Applying these principles, I would reverse the conviction

and dismiss the indictment.




                              - 11 -
