Paula Hardy Purifoy v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 27, 1999
• Docket: 0374982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Senior Judge Baker Argued at Richmond, Virginia

PAULA HARDY PURIFOY MEMORANDUM OPINION * BY v. Record No. 0374-98-2 JUDGE JOSEPH E. BAKER APRIL 27, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LUNENBURG COUNTY Charles L. McCormick, III, Judge

Buddy A. Ward, Public Defender (Office of the Public Defender, on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Paula Hardy Purifoy (appellant) appeals from her bench trial

conviction by the Circuit Court of Lunenburg County (trial court)

for a single count of embezzlement, in violation of Code

§ 18.2-111, pursuant to an indictment which charged that she

"feloniously, wrongfully and fraudulently embezzled money having a

value of $200 or more which she received for another, namely ABC

Distributing, Inc.," and which was entrusted to her by her

co-workers. Appellant contends that the trial court erroneously

admitted into evidence a bill for payment for merchandise (the ABC

bill) sent by ABC to Victoria Elementary School; that the evidence

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. did not prove that appellant embezzled money entrusted to her by

her co-workers to be used to pay the ABC bill; and that the

evidence failed to prove appellant embezzled monies of a value in

excess of $200.

As the parties are fully conversant with the facts contained

in the record before this Court and because this memorandum

opinion carries no precedential value, no recitation of the facts

is necessary.

The trial court did not abuse its discretion in admitting

the ABC bill into evidence at trial. See, e.g., Blain v.

Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988).

First, the circumstantial evidence, viewed in the light

most favorable to the Commonwealth, see Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987), satisfactorily

established the authenticity of the bill under the reply

doctrine. See Kitze v. Commonwealth, 15 Va. App. 254, 263, 422

S.E.2d 601, 607 (1992), rev'd on other grounds, 246 Va. 283, 435

S.E.2d 583 (1993); Jewell v. Commonwealth, 8 Va. App. 353, 357,

382 S.E.2d 259, 262 (1989) (holding that "circumstantial

evidence showing both the defendant's return address and the

responsiveness of the defendant's letter to contents of the

girl's letter sufficiently established that the defendant sent

the letter to the girl"). The bill was properly admitted under

the reply doctrine because the bill showed it came from ABC

- 2 - Distributing, and the circumstantial evidence proved multiple

exchanges between ABC and the school.

The evidence established the procedures that were followed

to place and pay for ABC orders, and the school's

secretary/bookkeeper testified that she passed all ABC

correspondence on to appellant during the time appellant was

coordinating ABC orders and then to Liles, to whom appellant

turned over her ordering duties. Liles received the ABC bill in

question pursuant to this ongoing procedure. When Liles

presented it to appellant, appellant did not challenge the

authenticity of the bill and asserted only that she did not owe

the money. Therefore, the ABC bill was sufficiently

authenticated to permit its admission. See Duncan v.

Commonwealth, 2 Va. App. 717, 727, 347 S.E.2d 539, 545 (1986)

(noting that once "prima facie showing [of authenticity] is

made, the writing or statement comes in, and the ultimate

question of authenticity is left to the [fact finder]").

Second, the bill was admissible under the adoptive

admission exception to the hearsay rule. See, e.g., Knick v.

Commonwealth, 15 Va. App. 103, 106-07, 421 S.E.2d 479, 481

(1992). The key to determining the applicability of this

exception hinges on whether "'the statement itself . . . would,

if untrue, call for a denial under the circumstances'" and

"'whether a reasonable person would have denied under the

circumstances . . . .'" Id. at 107, 421 S.E.2d at 481

- 3 - (quoting E. Cleary, McCormick on Evidence § 270, at 800-01 (3d

ed. 1984)). Here, appellant actually gave the bill to Chief

Dayton and admitted that part of the balance owed resulted from

her misappropriating $330 given to her by her co-workers for

merchandise purchased from ABC. Appellant's affirmative

representations and her failure to deny the implied statements

in the bill indicated that she acquiesced in the bill's

representation that money was due on the ABC account.

Therefore, the bill constituted an adoptive admission, and the

trial court did not abuse its discretion in admitting the bill

into evidence.

The evidence, viewed in the light most favorable to the

Commonwealth, also establishes that appellant embezzled money

belonging to ABC Distributing. Appellant was indicted for

embezzling money "which she received for another, namely ABC

Distributing, Inc., on behalf of [school] employees . . . which

monetary funds were entrusted or delivered to her by the

aforesaid victims." Code § 18.2−111 proscribes, inter alia, the

wrongful or fraudulent embezzlement of money "which [s]he shall

have received for another . . . or which shall have been

entrusted or delivered to [her] by another." (Emphasis added).

Here, the evidence proved that appellant embezzled money

she "received for another," ABC Distributing. The testimony

established that appellant's co-workers ordered and received

their merchandise before giving money to appellant. Only after

- 4 - the merchandise had been received would appellant collect the

money and send it to ABC Distributing. Therefore, in keeping

with the indictment, the evidence proved that appellant

embezzled the money she had received for another, ABC

Distributing, which had already delivered merchandise. The

plain meaning of the "received for another" portion of the

statute requires no formal entrustment or employment

relationship. Further, the language in the indictment regarding

"monetary funds [which] were entrusted or delivered to

[appellant]" by school employees merely describes which funds

appellant "received for another." That the delivery of money to

appellant by her co-workers may also, under certain

circumstances, have proved that she embezzled the money from

them does not prevent the ruling that she embezzled the money

from the corporation under the facts of this case.

Finally, the evidence proves that appellant embezzled a sum

in excess of $200 when she converted the $330 she had collected

for ABC Distributing to her own use. That she originally

obtained smaller sums of money from her co-workers is not

dispositive because the evidence establishes that she aggregated

the money into the larger sum of $330 and embezzled the entire

sum from ABC Distributing at one time. Cf. Jha v. Commonwealth,

18 Va. App. 349, 354-55, 444 S.E.2d 258, 261 (1994) (noting that

even a series of larcenous acts may be aggregated to determine

- 5 - value where "the several acts are done pursuant to a single

impulse" (citation omitted)).

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

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