Patricia D. Hillsman v. Commonwealth of Virginia ( 1999 )


Menu:
  •                    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 -