COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Elder and Fitzpatrick 

Argued at Richmond, Virginia 

WILLIAM EDWARD WALDROP 

v. Record No. 2094-94-2 MEMORANDUM OPINION* BY 

 CHIEF JUDGE NORMAN K. MOON

 COMMONWEALTH OF VIRGINIA DECEMBER 29, 1995 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

James M. Lumpkin, Judge Designate 

 John M. Schilling (White, Blackburn & Conte, 

 P.C., on brief), for appellant. 

 Robert H. Anderson, III, Assistant Attorney 

 General (James S. Gilmore, III, Attorney 

 General, on brief), for appellee. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 William Edward Waldrop appeals his convictions for grand 

larceny by embezzlement, misappropriation of bingo proceeds, and 

perjury in connection with his operation of bingo games on behalf 

of two charities. He argues that his perjury before the grand 

jury was not material, that the Commonwealth failed to prove all 

of the elements of embezzlement, that he was subjected to double 

jeopardy, and that he did not wrongfully take property of another 

when he paid workers to operate bingo games. We disagree, and 

affirm the convictions. 

 Between 1987 and 1989, Waldrop ran bingo games on behalf of 

the Virginia Association of Workers for the Blind and American 

Legion Post 361. Under Code § 18.2-340.9(B) and (E), it was 

unlawful for a charitable organization to pay compensation to 
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anyone for conducting a bingo game. Waldrop testified before the 

grand jury that he had not paid any workers to operate bingo 

games, and that he had not misappropriated any money "from the 

bingo." His conviction for perjury was based on these denials of 

misconduct. His convictions for grand larceny and 

misappropriation of bingo proceeds were based on his use of bingo 

proceeds to pay workers. The Commonwealth also sought to prove 

that Waldrop had pocketed bingo proceeds, but the trial judge 

found that the Commonwealth did not sustain its burden of proof 

on that aspect of the charges. 

 Under Code § 18.2-434, perjury before the grand jury must 

touch "any material matter or thing . . . ." Waldrop's denial 

that he had paid any workers was material to the grand jury's 

investigation of irregularities in the bingo games. First, 

contrary to Waldrop's claim that it was legal to compensate 

workers from sources other than bingo proceeds, the bingo 

statutes prohibited any compensation to workers, regardless of 

the source. Second, Waldrop's testimony that he had paid no 

compensation whatsoever and that he had never misappropriated 

funds from the bingo was material to the charge of 

misappropriation of bingo proceeds in order to pay workers. 

 Waldrop argues that in order to prove embezzlement, the 

Commonwealth must show that he appropriated funds to his own use 

or benefit. He further argues that because he received no 

benefit by paying workers to operate the games, he cannot be 

found guilty of embezzlement. 
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 In Chiang v. Commonwealth, 6 Va. App. 13, 365 S.E.2d 778 

(1988), this Court held that in order to prove embezzlement, the 

Commonwealth must show, inter alia, that the defendant wrongfully 

appropriated property for his own use and benefit. However, the 

Court also held that it is not necessary to show that the 

defendant misappropriated the property for "his own personal use 

and benefit"; it is sufficient to show that the defendant took 

the property to benefit another. Id. at 17, 365 S.E.2d at 781 

(emphasis added). Here, the Commonwealth proved that Waldrop 

misappropriated funds to benefit others--i.e., the workers who 

were paid. That the charities themselves may have benefited 

indirectly, as Waldrop alleges--a matter by no means proven-- 

does not purge Waldrop's actions of criminality. 

 Waldrop claims that his convictions for grand larceny under 

Code § 18.2-95 and misappropriation of bingo proceeds under Code 

§ 18.2-340.9 constitute multiple punishments for the same offense 

in violation of the double jeopardy clause of the United States 

Constitution. For double jeopardy purposes, for two offenses not 

to be the same, each must contain an element not contained in the 

other. United States v. Dixon, 113 S. Ct. 2849 (1993); 

Blockburger v. United States, 284 U.S. 299 (1932). To determine 

whether the elements are the same, the offenses are examined in 

the abstract, not with reference to the facts of the case at 

hand. Blythe v. Commonwealth, 222 Va. 722, 726, 284 S.E.2d 796, 

798 (1981). 

 For a charge under Code § 18.2-340.9, the misappropriated 
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funds must be from gross receipts of bingo games or raffles 

conducted by licensed organizations. There is no minimum amount. 

For a charge of grand larceny not from the person under Code 

§ 18.2-95, there is no limitation on the source of the stolen 

property, but the property must be worth at least $200.1

 Thus, 

each offense contains an element the other does not, and Waldrop 

was not punished twice for the same offense. 

 Finally, Waldrop argues that on the charge of grand larceny 

by embezzlement the Commonwealth did not prove that he took money 

belonging to another with the intent to deprive the owner thereof 

because he paid the workers only in order to keep the games 

going. He further argues that the funds did not belong to the 

charities until all expenses--including his illegal payments to 

workers--were deducted from the gross. 

 As noted by the Commonwealth, Waldrop did not raise these 

grounds for reversal below. No good cause has been shown, and 

the ends of justice do not require us to permit Waldrop to raise 

 1 Waldrop was indicted for grand larceny under Code 

§ 18.2-95, but both Waldrop and the Commonwealth refer to his 

offense as embezzlement, or "grand larceny by embezzlement". The 

elements of larceny and embezzlement are not the same, see Smith 

v. Commonwealth, 222 Va. 646, 649, 283 S.E.2d 209, 210 (1981). 

Nonetheless, under former Code § 18.2-111, an individual 

suspected of embezzlement could be indicted for larceny and, if 

embezzlement were proven, was deemed guilty of larceny. The 

embezzlement statute did not specify a penalty for that offense, 

so the penalty had to be derived from the larceny statutes. To 

treat embezzlement as a felony under Code § 18.2-95, the amount 

of property taken must be worth at least $200. See Code 

§ 18.2-111 as amended, clarifying that embezzlement is penalized 

under either Code § 18.2-95 (grand larceny) or Code § 18.2-96 

(petit larceny). 
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these arguments now. Therefore, Rule 5A:18 bars our 

consideration of these arguments. 

 For these reasons, we affirm the judgment. 

 Affirmed.