Reporter’s Note

The Vermont Supreme Court has recently reinterpreted the embezzlement statute, 13 V.S.A. § 2531, in the three companion cases State v. Willard-Freckleton, State v. Tanner, and State v. Orfanidis, 2007 VT 67, 183 Vt. 26.  Previously the Court had defined embezzlement as “the fraudulent conversion of the property of another by one who is already in lawful possession of it.”  State v. Ward, 151 Vt. 448 (1989).  It was not embezzlement when Mr. Ward took money out of his employer’s cash drawer, because the money was in the constructive possession of the owner.  Also see State v. Rathburn, 140 Vt. 382 (1981).  The new case recognizes the significance of language in the statute to the effect that the money could be in defendant’s possession, or it could be “under his [or her] care,” by virtue of his or her employment.  Willard-Freckleton, 2007 VT 67, ¶ 10.

The instruction minimizes any emphasis on the type of organization, based on the Supreme Court’s observation that the statutory list exhausts the universe of possible principals.  The precise status of the principal “is a technical distinction that is not an essential element of the crime.”  State v. Joy, 149 Vt. 607, 616 (1988).  Based on Willard-Freckleton, the committee has amended the instruction to apply when the defendant has “care” of the money but not necessarily “possession.”