COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons Argued at Alexandria, Virginia
PATRICIA D. HILLSMAN MEMORANDUM OPINION * BY v. Record No. 1658-98-4 JUDGE LARRY G. ELDER DECEMBER 7, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Marcus D. Williams, Judge
James W. Hundley (Briglia & Hundley, P.C., on brief), for appellant.
Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley, Attorney General; Daniel J. Munroe, Assistant Attorney General, on brief), for appellee.
Patricia D. Hillsman (appellant) appeals from her bench
trial conviction for two counts of embezzling property valued at
more than $200. On appeal, she contends the evidence was
insufficient to prove (1) that she wrongfully converted property
to her own use and (2) that the value of the embezzled property
was greater than $200. We hold the evidence on both these
elements was sufficient to support her convictions, and we
affirm.
In reviewing the sufficiency of the evidence, we examine
the record in the light most favorable to the Commonwealth,
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a trial court will be
disturbed only if plainly wrong or without evidence to support
it. See id. The credibility of a witness, the weight accorded
the testimony, and the inferences to be drawn from proven facts
are matters to be determined by the fact finder. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
A conviction for embezzlement under Code § 18.2-111
requires proof "that the accused wrongfully appropriated to her
use or benefit, with the intent to permanently deprive the owner
thereof, . . . property entrusted to her by virtue of her
employment or office." Waymack v. Commonwealth, 4 Va. App. 547,
549, 358 S.E.2d 765, 766 (1987); see Code § 18.2-111.
Embezzlement is punishable as grand larceny if the value of the
property wrongfully appropriated exceeds $200. See Code
§ 18.2-111; see also Code §§ 18.2-95, 18.2-96. The value of the
stolen property is measured as of the time of the theft, and the
original purchase price may be admitted as evidence of its
current value. See Dunn v. Commonwealth, 222 Va. 704, 705, 284
S.E.2d 792, 792 (1981).
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 . . . there is additional evidence, sufficient to show that the accused acted with the requisite criminal
- 2 - 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).
Intent may, and usually must, be proven by circumstantial
evidence, see Servis v. Commonwealth, 6 Va. App. 507, 524, 371
S.E.2d 156, 165 (1988), such as a person's conduct and
statements, see Long, 8 Va. App. at 198, 379 S.E.2d at 476.
"Circumstantial evidence is as competent and is entitled to as
much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983). "[T]he Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant."
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,
29 (1993).
Here, the evidence, viewed in the light most favorable to
the Commonwealth, established that appellant "wrongfully
appropriated to her use or benefit, with the intent to
permanently deprive the owner thereof, . . . property entrusted
to her by virtue of her employment or office." Waymack, 4 Va.
App. at 549, 358 S.E.2d at 766. Appellant was responsible for
ordering office supplies for her five-person branch of the
- 3 - Fairfax County Department of Environmental Management (DEM) and
for tracking orders for such supplies made by the department as
a whole. Between March 10 and May 12, 1997--covered by the
indictment alleging embezzlement between January 1 and May 31,
1997--appellant ordered 299 inkjet printer cartridges. Between
June 10 and August 15, 1997--covered by the indictment alleging
embezzlement between June 1 and September 30, 1997--appellant
ordered 210 inkjet printer cartridges. The uncontroverted
evidence established that these orders were prepared and placed
by appellant and, in all cases except one, that the cartridges
were received by appellant upon their delivery to her location
code, EJ26L. Although office policy required the authorizing
signature of Leora Motley or Needham Kelly on purchase orders
for office supplies, the uncontroverted evidence established
that appellant did not obtain authorization for any of these
orders.
On one occasion, appellant improperly added an order for
sixty printer cartridges to a purchase order already prepared by
Joyce Murphy and authorized by Needham Kelly. She also altered
the delivery location code to have the cartridges delivered to
her rather than to Murphy. On five other occasions, appellant
placed orders in the names of other employees, but all the
orders requested delivery to appellant's location and were
signed for by appellant, and the employees whose names appeared
on the orders denied requesting or receiving the ordered
- 4 - cartridges. The only reasonable hypothesis flowing from this
evidence is that appellant "acted with the requisite criminal
intent and that [her] conduct was designed to conceal [her]
criminal purpose." Smith, 222 Va. at 652, 283 S.E.2d at 212.
Additional circumstantial evidence established that
appellant's orders constituted embezzlement. In the period of
approximately five months between March 10 and August 15, 1997,
appellant personally ordered, without authorization, at least
509 inkjet printer cartridges. In the six-and-one-half months
after she was terminated, her branch ordered only thirteen such
cartridges. During the period of time covered by the
indictments, it was not unusual for appellant to leave the
office with supplies, ostensibly to distribute them to other DEM
employees who had ordered them. However, given evidence that
appellant placed all these orders without authorization and
placed several of the orders in the names of employees who did
not request the listed supplies, the fact finder could infer
that appellant took advantage of this opportunity to remove the
cartridges from DEM's premises.
The evidence also establishes that the inkjet cartridges
appellant embezzled were valued at more than $200 for the period
covered by each indictment. It remains a possibility that at
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Annunziata and Lemons Argued at Alexandria, Virginia
PATRICIA D. HILLSMAN MEMORANDUM OPINION * BY v. Record No. 1658-98-4 JUDGE LARRY G. ELDER DECEMBER 7, 1999 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Marcus D. Williams, Judge
James W. Hundley (Briglia & Hundley, P.C., on brief), for appellant.
Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley, Attorney General; Daniel J. Munroe, Assistant Attorney General, on brief), for appellee.
Patricia D. Hillsman (appellant) appeals from her bench
trial conviction for two counts of embezzling property valued at
more than $200. On appeal, she contends the evidence was
insufficient to prove (1) that she wrongfully converted property
to her own use and (2) that the value of the embezzled property
was greater than $200. We hold the evidence on both these
elements was sufficient to support her convictions, and we
affirm.
In reviewing the sufficiency of the evidence, we examine
the record in the light most favorable to the Commonwealth,
* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a trial court will be
disturbed only if plainly wrong or without evidence to support
it. See id. The credibility of a witness, the weight accorded
the testimony, and the inferences to be drawn from proven facts
are matters to be determined by the fact finder. See Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
A conviction for embezzlement under Code § 18.2-111
requires proof "that the accused wrongfully appropriated to her
use or benefit, with the intent to permanently deprive the owner
thereof, . . . property entrusted to her by virtue of her
employment or office." Waymack v. Commonwealth, 4 Va. App. 547,
549, 358 S.E.2d 765, 766 (1987); see Code § 18.2-111.
Embezzlement is punishable as grand larceny if the value of the
property wrongfully appropriated exceeds $200. See Code
§ 18.2-111; see also Code §§ 18.2-95, 18.2-96. The value of the
stolen property is measured as of the time of the theft, and the
original purchase price may be admitted as evidence of its
current value. See Dunn v. Commonwealth, 222 Va. 704, 705, 284
S.E.2d 792, 792 (1981).
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 . . . there is additional evidence, sufficient to show that the accused acted with the requisite criminal
- 2 - 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).
Intent may, and usually must, be proven by circumstantial
evidence, see Servis v. Commonwealth, 6 Va. App. 507, 524, 371
S.E.2d 156, 165 (1988), such as a person's conduct and
statements, see Long, 8 Va. App. at 198, 379 S.E.2d at 476.
"Circumstantial evidence is as competent and is entitled to as
much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983). "[T]he Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant."
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,
29 (1993).
Here, the evidence, viewed in the light most favorable to
the Commonwealth, established that appellant "wrongfully
appropriated to her use or benefit, with the intent to
permanently deprive the owner thereof, . . . property entrusted
to her by virtue of her employment or office." Waymack, 4 Va.
App. at 549, 358 S.E.2d at 766. Appellant was responsible for
ordering office supplies for her five-person branch of the
- 3 - Fairfax County Department of Environmental Management (DEM) and
for tracking orders for such supplies made by the department as
a whole. Between March 10 and May 12, 1997--covered by the
indictment alleging embezzlement between January 1 and May 31,
1997--appellant ordered 299 inkjet printer cartridges. Between
June 10 and August 15, 1997--covered by the indictment alleging
embezzlement between June 1 and September 30, 1997--appellant
ordered 210 inkjet printer cartridges. The uncontroverted
evidence established that these orders were prepared and placed
by appellant and, in all cases except one, that the cartridges
were received by appellant upon their delivery to her location
code, EJ26L. Although office policy required the authorizing
signature of Leora Motley or Needham Kelly on purchase orders
for office supplies, the uncontroverted evidence established
that appellant did not obtain authorization for any of these
orders.
On one occasion, appellant improperly added an order for
sixty printer cartridges to a purchase order already prepared by
Joyce Murphy and authorized by Needham Kelly. She also altered
the delivery location code to have the cartridges delivered to
her rather than to Murphy. On five other occasions, appellant
placed orders in the names of other employees, but all the
orders requested delivery to appellant's location and were
signed for by appellant, and the employees whose names appeared
on the orders denied requesting or receiving the ordered
- 4 - cartridges. The only reasonable hypothesis flowing from this
evidence is that appellant "acted with the requisite criminal
intent and that [her] conduct was designed to conceal [her]
criminal purpose." Smith, 222 Va. at 652, 283 S.E.2d at 212.
Additional circumstantial evidence established that
appellant's orders constituted embezzlement. In the period of
approximately five months between March 10 and August 15, 1997,
appellant personally ordered, without authorization, at least
509 inkjet printer cartridges. In the six-and-one-half months
after she was terminated, her branch ordered only thirteen such
cartridges. During the period of time covered by the
indictments, it was not unusual for appellant to leave the
office with supplies, ostensibly to distribute them to other DEM
employees who had ordered them. However, given evidence that
appellant placed all these orders without authorization and
placed several of the orders in the names of employees who did
not request the listed supplies, the fact finder could infer
that appellant took advantage of this opportunity to remove the
cartridges from DEM's premises.
The evidence also establishes that the inkjet cartridges
appellant embezzled were valued at more than $200 for the period
covered by each indictment. It remains a possibility that at
least a portion of the 509 printer cartridges appellant ordered
remained on the premises and were used by DEM for legitimate
business purposes. However, the evidence establishes that the
- 5 - financial management branch never kept more than about a dozen
inkjet cartridges on hand at any one time and that it ordered
only thirteen cartridges in the six months following appellant's
termination. Therefore, the branch's usage for a period of
about six months did not exceed twenty-five cartridges, the
total of the thirteen cartridges ordered and the twelve on hand.
Subtracting twenty-five cartridges from both the 299 appellant
ordered between March 10 and May 12, 1997, and the 210 appellant
ordered between June 10 and August 15, 1997, leaves a total of
274 and 185 cartridges, respectively.
Using a price of $22.23 per cartridge, the lowest price per
unit paid by DEM for an inkjet cartridge during the relevant
period, the approximate value of the cartridges appellant
embezzled was $6,091.02 during the period of the first
indictment and $4,112.55 during the period of the second
indictment. 1 Although the exact value of the cartridges
embezzled may not be ascertainable, under any reasonable
calculation, the evidence of value fully supported the
convictions for embezzlement of property valued at more than
$200.
For these reasons, we hold the evidence was sufficient to
prove appellant embezzled more than $200 worth of property
1 Even using the lowest estimated street value of $8 per cartridge, the approximate value of the cartridges appellant embezzled was $2,192 during the period of the first indictment and $1,480 during the period of the second indictment.
- 6 - during each of the two periods covered by the indictments, and
we affirm appellant's convictions.
Affirmed.
- 7 -