Alan Michael Jackson v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: December 31, 1996
• Docket: 1552952
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Senior Judge Cole Argued at Richmond, Virginia

ALAN MICHAEL JACKSON MEMORANDUM OPINION * BY v. Record No. 1552-95-2 JUDGE SAM W. COLEMAN III DECEMBER 31, 1996 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF POWHATAN COUNTY Thomas V. Warren, Judge Paul W. Cella for appellant.

John K. Byrum, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

The defendant was convicted of embezzlement and he appeals

that conviction. Addressing the issues he raises on appeal, we

hold that Powhatan County was a proper venue and we find that the

evidence was sufficient to prove the defendant's intent to

embezzle. Accordingly, we affirm the conviction.

On appeal, we view the evidence in the light most favorable

to the Commonwealth and accord it all reasonable inferences

fairly deducible therefrom. Higginbotham v. Commonwealth, 216

Va. 349, 352, 218 S.E.2d 534, 537 (1975).

Carole Williams placed a newspaper ad offering to sell her

computer and monitor for $850. As a result, the appellant

contacted her and offered to sell the computer on consignment.

Ms. Williams testified that the appellant came to her house in * Pursuant to Code § 17-116.010 this opinion is not designated for publication. Powhatan County to see the computer and "asked me if instead of

paying him a percentage to sell the computer, if I would give him

sixty days to sell it, he would pay me my full asking price,

which was $850.00."

While at Williams' home, the appellant gave her a business

card on which was printed his company name, Soft Touch Computers,

and a telephone number but no address. The appellant also

presented a written consignment contract, which Williams signed,

that also showed the company name and telephone number but no

address. The appellant showed Williams a business license which

she testified "looked official." On cross-examination, the

appellant explained that he did not put his address on the

business card or the contract because he "worked out of" his

apartment and the lease was not in his name. Williams agreed to consign her computer to the appellant for

sale. She signed the "consignment contract" that provided for a

term of sixty days ending on August 13, 1994 for the appellant to

sell the computer. The appellant took the computer with him.

At trial, the appellant testified that he put the computer

in a storage area which he shared with a friend, Calvin Clark.

The appellant testified that the computer was stolen from the

storage area, evidently by Clark, who promised to pay appellant

for the computer provided that appellant would not call the

police. The appellant did not call the police nor did he inform

Williams of his claim that her computer had been stolen.

- 2 - When Williams tried to contact the appellant after the sixty

day consignment, his phone had been disconnected. She could not

find an address for him or alternative phone number. The

appellant did not return the computer to Williams or pay her

$850, nor did he contact her. At trial, the appellant explained

that he did not contact Williams because due to "the

circumstances with Henrico County, traffic violations, I fled

from Henrico County to evade going to Court to Roanoke City.

Basically, I left everything behind." He also testified that he

thought his friend, Calvin Clark, would pay him for the computer

so he could pay Ms. Williams and that when he did not get the

money, he was "embarrassed." Hearing the case without a jury, the trial judge found the

appellant's testimony to be not credible. The trial judge found

appellant guilty of embezzlement and sentenced him to twelve

months in jail. On appeal, the decision of a trial court sitting

without a jury will not be reversed unless it is plainly wrong or

without evidence to support it. Bright v. Commonwealth, 4 Va.

App. 248, 250-51, 356 S.E.2d 443, 444 (1987).

I. VENUE

In order for Powhatan County to be a proper place to

prosecute an embezzlement charge, the Commonwealth must prove,

either by direct or circumstantial evidence, that the offense was

committed within that jurisdiction. Pollard v. Commonwealth, 220

Va. 723, 725, 261 S.E.2d 328, 330 (1980). Code § 19.2-245 states

- 3 - in pertinent part, "if any person shall commit embezzlement

within this Commonwealth he shall be liable as aforesaid or to

prosecution and punishment for his offense in the county or city

in which he was legally obligated to deliver the embezzled funds

or property." In Stegall v. Commonwealth, 208 Va. 719, 722, 160

S.E.2d 566, 568 (1968), the Virginia Supreme Court held that a

car rental agreement providing that the car be returned to

Lynchburg was a legal obligation to deliver the property to

Lynchburg and failure to return the car to that location

constituted an offense in Lynchburg. Thus, Lynchburg was a

proper venue. Id. at 723, 160 S.E.2d at 569.

The fact that the consignment contract was silent as to

where the computer was to be returned did not mean that there was

no venue in which the appellant could be prosecuted for

embezzlement. Appellant was legally obligated to return the

computer to Williams in Powhatan County. The fact that he would

have been legally obligated to return the computer to her

wherever she was does not defeat Powhatan County as a proper

venue. Furthermore, the consignment contract was executed in

Powhatan County. The contract was for a period of sixty days.

At the end of sixty days, the appellant had the legal duty to

either return the computer to her or pay Williams $850.

Accordingly, Powhatan County was a proper venue in which to

prosecute the charge. II. SUFFICIENCY OF THE EVIDENCE

- 4 - To establish the statutory crime of embezzlement, the

Commonwealth must prove beyond a reasonable doubt that the

accused, for his own use or benefit, wrongfully appropriated

property entrusted to him with the intent to deprive the owner

thereof. Nestle v. Commonwealth, 22 Va. App. 336, 341, 470

S.E.2d 133, 136 (1996); Waymack v. Commonwealth, 4 Va. App. 547,

549, 358 S.E.2d 765, 766 (1987); Code § 18.2-111. A defendant

wrongfully appropriates the property of another whenever he

exercises dominion and control over the property in a manner

inconsistent with the owner's rights. Evans & Smith v.

Commonwealth, 226 Va. 292, 298, 308 S.E.2d 126, 129 (1983);

Stegall, 208 Va. at 722, 160 S.E.2d at 568. The Commonwealth was

required to prove that the appellant had the intent to deprive

Williams of her computer.

The intent to commit a crime "may be, and often must be,

shown by circumstantial evidence." Whitley v. Commonwealth, 223

Va. 66, 73, 286 S.E.2d 162, 166, cert. denied, 459 U.S. 882, 103

S. Ct. 181, 74 L. Ed. 2d 148 (1982). The intent to embezzle can

be inferred from all the facts and circumstances of the case, Stegall, 208 Va. at 723, 160 S.E.2d at 569, or from the accused's

conduct and representations. Zoretic v. Commonwealth, 13 Va.

App. 241, 244, 409 S.E.2d 832, 834 (1991). While proof that property entrusted to the possession of the accused has been misappropriated is not enough, standing alone, to prove that the accused was the embezzler, where, as here, there is additional evidence, sufficient to show that the accused acted with the requisite criminal

- 5 - intent and that his conduct was designed to conceal his criminal purpose, we will uphold a finding that the accused was the criminal agent.

Smith v. Commonwealth, 222 Va. 646, 652, 283 S.E.2d 209, 212

(1981); see also Webb v. Commonwealth, 204 Va. 24, 35, 129 S.E.2d

22, 30 (1963); Zoretic, 13 Va. App. at 243, 409 S.E.2d at 834;

Waymack, 4 Va. App. at 549, 358 S.E.2d at 766.

Williams entrusted her computer to the appellant for sixty

days under the consignment contract. At the end of sixty days,

the appellant did not return the computer, he did not pay

Williams for the computer, and he did not contact Williams about

her computer. The appellant did not give Williams an address

where he could be reached. When Williams tried to contact the

appellant, the phone number he gave her had been disconnected. "[F]ailure to perform an absolute duty to return the

property or refusal to account or pay over on demand constitutes

embezzlement, or is, at least, evidence from which a fraudulent

conversion may be inferred." Stegall, 208 Va. at 721-22, 160

S.E.2d at 568 (quoting 29A C.J.S. Embezzlement § 11). As in the

Stegall case, the consignment contract imposed upon appellant the

duty to pay for the computer or return it at the stipulated time.

The contract implicitly required that, if the appellant failed

to sell the computer within sixty days, he was to return the

computer to Williams or pay her $850. The appellant's failure to

return the computer to Williams, his failure to pay Williams for

- 6 - the computer, his failure to contact Williams after the sixty

days elapsed, and his failure to provide Williams with an address

or telephone number where he could be reached constitute

sufficient evidence from which the trial judge could infer that

the appellant wrongfully intended to appropriate the computer to

his own use or benefit.

As to the appellant's claim that Williams' computer had been

stolen from him, the trial court was entitled to find that the

explanation was not credible. Id. at 722-23, 160 S.E.2d at

568-69. Although the testimony was uncontradicted, evidence "may

be disbelieved where it is inherently improbable, inconsistent

with circumstances in evidence, or somewhat contradictory in

itself, especially where the witness is a party or is

interested." Id. at 722, 160 S.E.2d at 568. Trial courts are

given wide discretion to determine the credibility of witnesses

and their testimony. Id.

The appellant did not report to the authorities or to

Williams that the computer had been stolen. The fact that the

appellant obtained the computer and left no means by which he

could be reached, and that he failed to contact Williams after

the sixty days had elapsed to either return the computer, pay for

it, or account for its whereabouts, supports the trial judge's

finding that appellant intended to convert the computer to his

own use and benefit.

The appellant contends that his case is indistinguishable

- 7 - from and controlled by Zoretic v. Commonwealth. He claims that,

as with Zoretic, his direct testimony that the computer had been

stolen is more plausible, or at least equally plausible, to the

Commonwealth's circumstantial evidence that he converted it to

his own use. Thus, he argues, the theory that the computer was

stolen from him and that he was not guilty of embezzlement is a

reasonable hypothesis of innocence which the Commonwealth's

circumstantial evidence fails to exclude. The appellant's reliance on Zoretic is misplaced. In that

case, the defendant was given money by an undercover police

officer and asked to purchase drugs. Zoretic, 13 Va. App. at

242-43, 409 S.E.2d at 833. After accepting the money, the

defendant was seen meeting with a known drug dealer. The

defendant reported to the officer that he had given the money to

the drug dealer and that the drug dealer was to obtain the drugs.

Id. at 243, 409 S.E.2d at 833. The defendant "repeatedly

acknowledged the debt" to the officer and remained in contact

with the officer. Id. at 244, 409 S.E.2d at 834. This Court

found that the Commonwealth's evidence proved that the defendant

met with the drug dealer intending to give him money in exchange

for drugs, and therefore, the evidence did not exclude the

reasonable hypothesis that the defendant gave the money to the

dealer in order to fulfill his agreement with the police officer

and that the dealer stole the money. Id. at 244, 409 S.E.2d at

834. In Zoretic, the circumstantial evidence equally supported

- 8 - the inference that Zoretic gave the money to the drug dealer as

it did the conclusion that Zoretic kept the money.

In contrast to Zoretic, the Commonwealth's evidence proved

that the appellant took Williams' computer and failed to return

it as required by the contract. From that evidence the fact

finder could not infer that the computer had been lost, stolen,

or destroyed. From that evidence, without more, the fact finder

could only infer that the consignee converted the property to his

own use and benefit. Thus, no hypothesis consistent with

innocence flows from the Commonwealth's evidence. When the appellant testified and provided an hypothesis of

innocence, the fact finder was entitled to reject that

explanation if there are reasons to find it not credible. The

appellant's actions were not consistent with a claim that the

computer was stolen. No one saw the appellant place the computer

in the storage area. The appellant did not report the alleged

crime to the authorities or to Williams. The evidence showed

that his phone was disconnected and that he left the area. The

appellant maintained no business records and provided no

identifiable address. The appellant's failure to return the

computer, combined with the surrounding circumstances, furnishes

sufficient evidence to support the trial court's conclusion that

the appellant had the intent to wrongfully appropriate the

computer to his own use or benefit. Therefore, because the fact

finder could reject the appellant's claim that the computer had

- 9 - been stolen, the evidence excludes the appellant's theory of

innocence.

Thus, we hold that venue was proper in Powhatan County and

find that the evidence was sufficient to support the embezzlement

conviction. Accordingly, we affirm the trial court's decision.

Affirmed.

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