Nancy Mulvaney v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: October 31, 1995
• Docket: 0924941
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton Argued at Norfolk, Virginia

NANCY MULVANEY

v. Record No. 0924-94-1 MEMORANDUM OPINION * BY JUDGE RICHARD S. BRAY COMMONWEALTH OF VIRGINIA OCTOBER 31, 1995

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Randolph T. West, Judge

Robert B. Rae (Rae, Bergstrom & Rae, on brief), for appellant. Steven Andrew Witmer, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Nancy Mulvaney (defendant) was convicted in a bench trial on

an indictment charging a single count of embezzlement by a "common

plan, scheme or design" in violation of Code § 18.2-111. Defendant

argues on appeal that (1) the trial court erroneously allowed a

Commonwealth witness to testify to the "ultimate issue of guilt,"

and (2) the evidence was insufficient to support the conviction.

We disagree and affirm the judgment of the trial court.

The parties are fully conversant with the record in this case,

and we recite only those facts necessary to a disposition of the

appeal.

Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, granting

to it all reasonable inferences fairly deducible therefrom. Martin

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

The judgment of a trial court, sitting without a jury, is entitled

to the same weight as a jury verdict and will be disturbed only if

plainly wrong or without evidence to support it. Id. The

credibility of a witness, the weight accorded the testimony, and

the inferences to be drawn from proven facts are matters solely for

the fact finder's determination. Long v. Commonwealth, 8 Va. App.

194, 199, 379 S.E.2d 473, 476 (1989). The evidence disclosed that defendant was employed as

"bookkeeper" for Commonwealth Information Systems, Inc. (Systems)

during the period embraced by the indictment. Defendant's

supervisor, Sherry Cassell, testified that defendant's duties

included receiving funds collected by herself and other employees,

correctly crediting the payor's account, and totalling and

depositing the monies to Systems' bank account, all with the

appropriate documentation. Ms. Cassell explained that numerous

receipt/deposit discrepancies were discovered following termination

of defendant's employment (due to an overall reduction in force),

each of which occurred during her employment. She testified that

an audit of Systems' accounts traced these irregularities to the

substitution of check receipts for equivalent, but missing, cash

payments, at the time of deposit.

One transaction detailed by Ms. Cassell related to a $627.46

check received by Systems between May 27, 1993 and June 1, 1993.

While the proper account was credited with this payment, the check did not appear on the daily payment register or on "adding machine

-2- tapes" of the receipts, both of which should have reflected all

payments into Systems during a business day. However, a notation,

"Do Special Deposit $627.46 LC-3," appeared on a small "post-it

note" affixed to the payment register, and the check was deposited

to Systems' account. Records of the daily cash receipts for the

period indicated that $627.46 less cash was deposited than actually

received. Nevertheless, Systems' ledger was balanced by deposit of

the unreported check, which replaced the missing cash. The deposit

ticket that attended this transaction was prepared by defendant and

was consistent with the manipulated receipts. The Commonwealth

introduced evidence of no less than six substantially similar

transactions, all linked to defendant. Defendant first complains that the trial court improperly

permitted Ms. Cassell to testify to the "ultimate issue." It is

well established that this Court will not consider an argument

which was not presented to the trial court. Jacques v.

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991);

Rule 5A:18. "On appeal, a ruling of a trial court cannot be a

basis for reversal unless an objection is stated 'together with the

grounds therefor at the time of the ruling, except for good cause

shown or to enable the Court of Appeals to attain the ends of

justice.'" Campbell v. Commonwealth, 12 Va. App. 476, 480, 405

S.E.2d 1, 2 (1991) (en banc) (quoting Rule 5A:18). Here, defense

counsel failed to specifically object during trial that Ms. Cassell 1 testified to the ultimate issue. Finding no justification to

1 Defendant's objection to Ms. Cassell's "expert" testimony

-3- apply the "ends of justice" exception, we decline to address this

question.

Defendant next challenges the sufficiency of the evidence to

support the conviction. To convict, the Commonwealth was required

to prove that defendant "wrongfully appropriated to [her] own use

or benefit, with the intent to deprive . . . [Systems] thereof, the

property . . . entrusted to [her] by reason of [her]

employment. . . ." Webb v. Commonwealth, 204 Va. 24, 34, 129

S.E.2d 22, 30 (1963); Zoretic v. Commonwealth, 13 Va. App. 241, 243, 409 S.E.2d 832, 833-34 (1991). When the Commonwealth relies

upon circumstantial evidence, the evidence must exclude every

reasonable hypothesis of innocence. Coffey v. Commonwealth, 202

Va. 185, 188, 116 S.E.2d 257, 259 (1960). "It is not sufficient

that the evidence create a suspicion of guilt, however strong, or

even a probability of guilt, but must exclude every reasonable

hypothesis save that of guilt." Webb, 204 Va. at 34, 129 S.E.2d at

29. However, the Commonwealth need only exclude reasonable

hypotheses of innocence that flow from the evidence, not those that

spring from the imagination of defendant or counsel. Cook v.

Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983); Fordham

v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829, 831 (1991).

Here, the evidence established that defendant was responsible

for receiving cash and checks belonging to Systems, verifying and

documenting the amounts, and depositing the funds to Systems' bank

related solely to defendant's handwriting.

-4- account. Defendant prepared the relevant deposit slips and adding

machine tapes, including checks omitted from the payment register

which compensated for deficiencies in cash receipts. Defendant

reported no errors in cash received by her from other employees,

and the unregistered check was always properly credited to the

payor's account with Systems. Such evidence clearly supports the

requisite inference that defendant was manipulating the cash and

check receipts to conceal a diversion of cash from Systems to

herself. Accordingly, we affirm the conviction.

Affirmed.

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