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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. 
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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 
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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 § 18.2-1111

 classifies embezzlement as a larceny crime 

 

 1Code § 18.2-111 provides as follows: 
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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. 

 2Code § 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. 
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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 
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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 
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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.