Cynthia Lee East v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia
CYNTHIA LEE EAST
MEMORANDUM OPINION * BY
v. Record No. 0013-98-2 JUDGE JERE M. H. WILLIS, JR.
MARCH 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge
Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.
Mary E. Langer, Assistant Attorney General
(Mark L. Earley, Attorney General; Rhonda
McGarvey, Senior Assistant Attorney General &
Chief, on brief), for appellee.
Cynthia Lee East was convicted of four counts of
embezzlement, specified as follows: (1) that on or about August
1, 1996, she did embezzle U.S. currency having a value of $200 or
more, (2) that on or about February 26-27, 1997, she did embezzle
U.S. currency having a value of $200 or more, (3) that on or
about March 6, 1997, she did embezzle U.S. currency having a
value of $200 or more, and (4) that on or about March 6, 1997,
she did embezzle U.S. currency having a value of $200 or more.
On appeal, she contends that the evidence fails to support those
convictions. We affirm the convictions relating to the March 6,
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
1997 charges. We reverse the convictions relating to the August
1, 1996 and February 26-27, 1997 charges.
I. BACKGROUND
On appeal, we review the evidence in the
light most favorable to the Commonwealth,
granting to it all reasonable inferences
fairly deducible therefrom. The judgment of
a trial court sitting without a jury is
entitled to the same weight as a jury verdict
and will not be set aside unless it appears
from the evidence that the judgment is
plainly wrong or without evidence to support
it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
East was one of two cashiers in the cashier's office of the
Department of General Services, where she received cash payments
relating to state surplus property auction sales. The money was
ordinarily placed in a safe at the office until deposited. Money
received after 12:30 p.m. was held for deposit the next day. The
safe remained open during the day.
A customer making payment would produce a "sale award"
certifying his successful bid, the property purchased, and the
amount owed. The cashier receiving payment would stamp on the
sale award and initial a receipt showing the amount received,
whether the payment was by cash or check, and if by check,
identification of the check. The cashier was then required to
record the receipt on a "check register," an internal document
designating the payor, the amount of payment, and the form of
payment. The check registers were reviewed by June Hodge, the
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other cashier, were sent by her for data entry, and were then
received back and filed. East was responsible for reconciling
bank deposits with the related check registers.
II. THE AUGUST 1, 1996 INCIDENT
On August 1, 1996, East received $2,650 in cash from Ted
Covington Sales. The receipt for this amount was noted on sale
award document numbered 147624 bearing East's initials, but the
corresponding entry to the check register indicated payment by
check, credited to sale award document numbered 147470. The
August 1 check register recorded a cash payment of $2,650
received from Russell Auto. However, Russell's receipt shows a
check number. The bank deposit on that day equaled the total
amount shown on the check register, but reflected a cash deposit
of $2,650, not $5,300.
The Commonwealth argues that the evidence supports a finding
that East received two cash payments of $2,650 each, one from
Covington and one from Russell, that she falsified the check
register, embezzled $2,650 cash, and placed the remaining $2,650
cash for deposit. The evidence fails to support this
construction. It appears plainly from the receipts given
Covington and Russell on their respective sale awards that
Covington paid cash and Russell paid by check. Thus, only $2,650
was received in cash and that cash was deposited. The evidence
proves no more than an error in recording the form of the
payments on the check register. This conclusion is verified by
the fact that the amount deposited in the bank equaled the total
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amount called for by the check register. The evidence fails to
prove that an embezzlement occurred on August 1, 1996.
III. THE FEBRUARY 26-27, l997 INCIDENT
On the afternoon of February 26, 1997, June Hodge received
$687.45 in cash from Timothy Sauls. She testified that she
placed this payment in the safe. However, this cash was not
included in the bank deposit made by East the next day. The
comptroller could not reconcile the February 26, 1997 batch of
check registers with the batch of deposits made on February 27,
1997. When questioned, East told the comptroller to throw away
the check register reflecting the $687.45 receipt. An internal
audit was made. On April 18, 1997, four days after the employees
of the cashier's office were notified that the police would
investigate the missing cash, the Assistant Administrator of
Auction received in inter-office mail some paperwork concerning
Sauls' purchase of surplus property and an envelope containing
$687.45. No evidence disclosed the origin of the package or how
long it had been circulating through the inter-office mail
system.
The Commonwealth argues that East's suggestion that the
comptroller throw away the check register was an effort to
destroy evidence of the $687.45 receipt, that this was an effort
by East to cover up the existence of that sum, and that this
effort disclosed guilty knowledge and was proof that East had
misappropriated the money. The record does not reveal all the
circumstances or the full context in which East made that
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suggestion. It was bad advice. It proposed a violation of the
agency's accounting system and an inappropriate solution to the
accounting discrepancy. However, that suggestion, standing
alone, is insufficient to prove that East took the money. No
other evidence establishes that she had any contact with the
money or even knew of its existence. The evidence fails to prove
that East misappropriated the $687.45.
IV. THE MARCH 6, 1997 INCIDENTS
On March 6, 1997, East received a $3,050 cash payment from
Anthony Williams and a $3,550 cash payment from Walter Tally.
The check registers and deposit records of March 6 and March 7
reflect neither the receipt nor the deposit of those payments.
East made the March 6 and 7 bank deposits.
East personally received the payments from Williams and
Tally. Their receipts bear her initials. However, despite her
duty to make corresponding entries in the check register, no
entries were made. She prepared and made the deposits for March
6 and 7. The funds from Williams and Tally were not included in
those deposits. East argues that some other person may have
destroyed the check register entries and may have misappropriated
the cash. However, it strains credulity to suppose that upon
making the bank deposits, East would have overlooked the absence
of $6,600 in cash that she herself had just taken in. Thus, the
evidence is sufficient to prove that East embezzled the $6,600
cash that she had received from Williams and Tally.
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CONCLUSION
We reverse the convictions for charges relating to the
August 1, 1996 and February 26-27, 1997 incidents and order those
charges dismissed. We affirm the judgment of the trial court
convicting East of two embezzlements on March 6, 1997.
Affirmed in part
and reversed and
dismissed in part.
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Benton, J., concurring in part and dissenting in part.
I concur in the judgment reversing the convictions for
embezzlement arising out of the incidents on August 1, 1996 and
February 26-27, 1997. I dissent because I would also reverse the
conviction for embezzlement arising out of the incidents on March
6, 1997. The evidence proved that the cashier's office lacked
internal accounting controls. Because of the lack of those
controls, the evidence was insufficient to prove that Cynthia
East committed an embezzlement on March 6, 1997.
A cashier, who worked in the office with East, was a witness
for the Commonwealth. Explaining the procedures in place at the
time of these events, she testified that generally "[w]e get the
[bank] deposit ready about 12:30" on the day the payments are
received in the office. The cash and checks that had been
received in the morning and that comprised the funds to be
deposited were "placed in the safe," which typically remained
open during business hours. Those funds were "deposited the next
day." The cashier also testified that occasionally cash received
in the afternoon "went into the safe . . . for deposit on the
next day." Although East typically prepared the bank deposit
form for these transactions, the other cashier prepared the
deposit if East was busy performing other tasks.
No evidence proved who prepared the deposit slips for the
deposits made on March 6 and 7, 1997. Furthermore, the record
does not establish the amount of the bank deposit for March 6 and
March 7. Thus, the trier of fact could not conclude that East
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prepared those deposits. Moreover, the trier of fact could not
have concluded that the absence of the sum of $6,600 on March 6
or 7 would have been immediately obvious to East, if she did in
fact prepare the deposit slip on that day, or to the other
cashier, who may have prepared the deposit. The record proved
that some of the deposits were for substantial sums of money --
for example, $330,640 was deposited on February 27 and larger
sums were deposited on other days.
The evidence proved that a check register was prepared
whenever money was received by a cashier. The check register was
a paper copy of a form that could be displayed on a computer
monitor and printed after information was typed onto the form.
This form could be accessed by the cashiers from their computer
terminals. Typically, transactions were entered on the form by
typing the necessary information on the computer's keyboard when
the form appeared on the monitor. The cashier would then cause
the computer to generate a paper copy of the form and data shown
on the monitor.
The cashier testified as follows concerning the system:
Q So anybody with access to the computer
system could pull up that register and enter
in the code?
A Yes.
Q When you are doing it on the screen, you
also type in your name as the one preparing
that particular register?
A Yes.
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Q You didn't have any kind of password in
order to enable you to enter in the name?
A No.
Q So if you wanted to, you could have
entered instead the name of June Hodge, the
name John Doe?
A Yes.
Q Or Cindy East?
A Yes.
Q If you pulled up work that had already
been done on the screen for a register, it
was possible, it would have been possible to
type over some of the stuff that you had
already done, or delete some of the stuff you
had already done and type other information;
that would have been possible?
A Yes.
Q And then if you had printed out a hard
copy of that, it would have showed the new
work that you substituted for the old work
while the old work was still intact on that
register?
A Say that again.
Q If you had pulled up a ledger sheet that
had already be[en] done at the screen--
A Uh-huh.
Q --and you type in some different
information
THE COURT: Are you talking about this?
[DEFENSE ATTORNEY]: Yes, one of those.
THE COURT: The deposit and check register?
[DEFENSE ATTORNEY]: Yes, the deposit and
check register.
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Q If you pulled that up on the screen, one
that you had already done, and then you typed
in some different information, for example,
instead of Russell Auto-Truck Parts as payor,
and you typed in Covington Sales, but you
left everything else on the register the
same, if you had printed a copy, printed a
hard copy of what was shown on the screen,
what you would get back is an altered
register?
A Yeah.
The cashier also testified that some check registers consisted of
the computer generated form with information handwritten in the
appropriate spaces on the form.
The computer generated check register forms were not
numbered sequentially as a receipt book might be. Furthermore,
the accounting system contained no duplicate copies of documents,
no verification systems, no sequential transaction numbers, or
any other system designed to leave an accounting trail. For
example, the person charged with reconciling the daily check
registers with the daily bank deposits testified that "sometimes
it might be a week later and sometimes a month later" that she
received the bank deposit slips. She also testified that the
Department has instituted strict internal controls since these
events and "[w]e can't use the computer [check register] forms
anymore."
The department's comptroller acknowledged that the system
was faulty and had been changed. He testified as follows:
Q Was there -- during the two years prior to
April, '97, what procedure was there? Was
there any procedure to insure that
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information recorded on each individual check
register was accurate?
A No, we did not have a separate place to
check every place for accuracy.
Q For example, if there was nothing in place
to check whether or not a recorded payment
was in cash or in check, if that was
recorded?
A The only procedure we had in place was
that we had a person outside of the cashier's
office to verify that the total dollars
listed on these registers were indeed
deposited in the bank.
* * * * * * *
Q There was nothing in place to insure that
a check register, if it were filled out on a
particular day, went anywhere; in other
words, if someone could take in money,
deposit it, record it on the check register,
get a receipt, and simply not deposit the
money, bury the check register and it might
never show up?
A I guess that's a possibility.
Q Has that changed?
A Yes.
Thus, even if East prepared the proper forms for the two March 6
payments that were unaccounted for, any person having access to
the office could have removed the money and the supporting
documents, or changed the supporting documents, without
detection.
When the Commonwealth relies upon circumstantial evidence to
prove the guilt of the accused, the following standard is
applicable:
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All necessary circumstances proved must be
consistent with guilt and inconsistent with
innocence. 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. To accomplish that the chain
of circumstances must be unbroken and the
evidence as a whole must be sufficient to
satisfy the guarded judgment that both the
corpus delicti and the criminal agency of the
accused have been proved to the exclusion of
any other reasonable hypothesis and to a
moral certainty.
Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).
The evidence in the record does not exclude the hypothesis
that East collected the two payments on March 6, that she placed
them in the open safe to be later tallied for deposit, and that
the money and attached documents were removed from the safe
before the deposit slip was prepared. The absence of a
controlled accounting system leaves in doubt (1) whether East or
some other person removed the cash and the corresponding check
register for those cash payments or (2) whether someone created
new check registers identifying other payors of the cash. The
Commonwealth must prove beyond a reasonable doubt that East
wrongfully and fraudulently converted the missing money. See
Waymack v. Commonwealth, 4 Va. App. 547, 549, 358 S.E.2d 765, 766
(1987). When evidence is equally susceptible to two
interpretations, one of which is consistent with the innocence of
the accused, the trier of fact cannot arbitrarily adopt that
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interpretation which incriminates the accused. See Littlejohn v.
Commonwealth, 24 Va. App. 401, 411, 482 S.E.2d 853, 858 (1997).
For these reasons, I would reverse all the convictions.
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