Eric Santos James Oryem v. Commonwealth of Virginia ( 2009 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, Petty and Senior Judge Clements
Argued by teleconference
ERIC SANTOS JAMES ORYEM
MEMORANDUM OPINION * BY
v. Record No. 2638-08-4 JUDGE WILLIAM G. PETTY
DECEMBER 8, 2009
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Lisa B. Kemler, Judge
George J. Wooditch, Jr. (The Law Offices of Anderson, Graham &
Wooditch, P.C., on brief), for appellant.
Erin M. Kulpa, Assistant Attorney General (William C. Mims,
Attorney General, on brief), for appellee.
On July 30, 2008, Eric Santos James Oryem was convicted of four counts of
embezzlement by a public officer in violation of Code § 18.2-112. On appeal, he argues that the
trial court erred by denying his motion to suppress a key found in his jacket because the search
violated the Fourth Amendment. Assuming without deciding that the trial court erred, we affirm
because such error was harmless beyond a reasonable doubt.
I. ANALYSIS
“When a federal constitutional error is involved, a reviewing court must reverse the
judgment unless it determines that the error is harmless beyond a reasonable doubt.” Clay v.
Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001). “‘We decide whether the
erroneous admission of evidence was sufficiently prejudicial to require reversal on the basis of
our own reading of the record and on what seems to us to have been the probable impact on the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
fact finder.’” Corado v. Commonwealth, 47 Va. App. 315, 323, 623 S.E.2d 452, 456 (2005)
(quoting Green v. Commonwealth, 32 Va. App. 438, 446, 528 S.E.2d 187, 191 (2000)). “‘An
error is harmless only when it plainly appears from the record and the evidence that the error has
not affected the verdict. Whether an error does not affect the verdict must be determined without
usurping the jury’s fact finding function.’” Id. (quoting Hooker v. Commonwealth, 14 Va. App.
454, 457, 418 S.E.2d 343, 345 (1992)). Here, the evidence Oryem sought to suppress was
cumulative and inconsequential. Thus, we hold that the trial court’s denial of Oryem’s motion to
suppress was harmless error beyond a reasonable doubt.
On appeal, we review the evidence in the “light most favorable” to the prevailing party
below, the Commonwealth, Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786
(2003), and we grant to that party all fair inferences flowing therefrom. Coleman v.
Commonwealth, 52 Va. App. 19, 21, 660 S.E.2d 687, 688 (2008).
The parking office of Northern Virginia Community College (NVCC) employed Eric
Oryem beginning in 2002. In 2004, NVCC installed parking meters and assigned Oryem the
responsibility of collecting the money deposited in the meters. When the meters were first
installed, Oryem gave one key to his supervisor and kept the other key for himself. The meters
did not record how much money was deposited; rather, the only accounting of the money
collected from the meters was Oryem’s deposit slip that he would leave for his supervisor to
deposit on Monday morning
In 2007, the college relocated the collection process to the business office because the
business manager had noticed a discrepancy in that process. The business manager assigned
Kathy Clement, then assistant business manager, to design policies to tighten the internal
controls regarding meter collections. In doing so, Clement noticed that the parking office only
had one key for the parking meters, which she thought was unusual because the industry standard
-2-
was to keep two sets of keys. She instituted a process for collecting money from the parking
meters, which included locking the key in a safe that only business office staff could access,
logging out the parking meter key from the safe by signing a log out sheet, requiring that two
people collect the money from the parking meters, and requiring that those two people notify
campus police when they leave to collect the money from the parking meters. She also requested
that the locks on the meters be changed. The locks on the meters were changed on November 9,
2007.
Prior to that date, Oryem contacted Booher & Associates—the company that had been
contracted to change the locks on the meters—and requested that he be allowed to help with the
changing of the locks. When this conversation was relayed to Clement, she thought it was
suspicious. During the lock change, an employee from Booher & Associates informed Clement
that three of the coin storage vaults, which were located inside the meters, were broken. This
defect “would allow a person with just the meter key to be able to get the money directly from
the meters.” Chad Booher gave two new keys, which bore the number 306, for the new locks to
Clement and she, in return, gave Mr. Booher the key to the old lock, which bore the number 352.
Clement reported the broken vaults to Sergeant Tolson with the NVCC police office on
Monday, November 12, 2007. Monday afternoon, Clement logged out the meter key from the
safe and went to the parking meter with Sergeant Tolson. When she attempted to open the
parking meter, the key would not work. She testified that the key looked old and “scuffed up.”
Clement went back to the business office and searched the safe for the new meter key but could
not find it. She then pulled the spare new meter key to compare the two and realized that they
were two different keys, one being the missing old meter key. According to the meter key log
out sheet, Oryem was the only person to check out the new key between Friday, November 9 and
-3-
Monday, November 12. The unmistakable inference was that he had replaced the new key with
the old key. 1
Clement and Tolson decided to go about “business as usual, put the key, the old key that
had turned up back in operation in the top [of the safe], and just wait and see.” The next day,
Clement and the business office staff searched the office for the new meter key to no avail. A
couple days later, Oryem and another parking office employee logged out the old meter key to
collect the money from the parking meters. Officer Spalding observed Oryem open the parking
meters and collect the money from them. Spalding then contacted Officer Tantiyankul who
advised him to stop Oryem. During the stop, Spalding asked Oryem for the key that he used to
open the parking meters and he handed the key to Spalding. Officer Spalding gave the key to
Officer Tantiyankul.
Both officers took Oryem to the business office and presented Clement with the key they
had recovered from Oryem and asked her if she could verify that it was the new meter key,
which she did. Then, they escorted Oryem to the police office and Officer Tantiyankul asked
Oryem for consent to search him and he said no. Officer Tantiyankul left the police office and
went back to the business office and asked the other parking meter employee for consent to
search his jacket, which he agreed to. Tantiyankul found nothing in his jacket. Tantiyankul
returned to the police office, arrested Oryem, and conducted a search of Oryem’s university
parking office jacket. Inside, he found the old parking meter key. Officer Tantiyankul returned
to the business office with the old meter key, which he gave to Clement.
1
“Under settled principles, we review a trial court’s factfinding ‘with the highest degree
of appellate deference.’” Cooper v. Commonwealth, 54 Va. App. 558, 572, 680 S.E.2d 361, 368
(2009) (quoting Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006)).
Included in that deference is the mandate that we grant to the Commonwealth all fair inferences
that may be drawn from the facts. Coleman, 52 Va. App. at 21, 660 S.E.2d at 688.
-4-
According to Oryem’s bank records, from April 2, 2006 until October 7, 2006 he had
deposited thirty-three thousand four hundred and sixty-nine dollars in coins.
Oryem argues that the trial court erred by denying his motion to suppress the key found
in his upper right jacket pocket after he was arrested. He reasons that, even though the university
owns the jacket, he had a reasonable expectation of privacy in the jacket and the police
unreasonably searched the jacket incident to his arrest because the jacket was not on him at the
time of his arrest. Therefore, he concludes, the search exceeded the scope of a permissible
search incident to arrest and, as a result, violated his Fourth Amendment guarantee against
unreasonable searches and seizures.
Assuming without deciding that the trial court erred, we hold that the error was harmless
beyond a reasonable doubt. 2 The fact that the old key was found in Oryem’s jacket was
irrelevant considering that he possessed the new key. The new key had been removed from the
safe and was missing. From the time that Clement had placed the new key in service—Friday,
November, 9, 2007—until the time when Clement discovered that the new key was missing and
replaced by the old key—Monday, November 12, 2007—Oryem was the only person to sign out
the parking meter key. After discovering that the old key had been substituted for the new key,
Clement placed the old key back in service by leaving it in the safe to be checked out.
The ultimate purpose of placing the old key back in service was to observe those who
collect money from the parking meters to determine who had the new key. After Clement placed
2
Oryem’s unsuccessful motion to suppress sought to exclude any evidence of the
officer’s discovery of the old key in Oryem’s jacket. In his case-in-chief, however, Oryem took
the stand in his own defense and testified the old key was in fact in the upper right pocket of his
jacket, right where the officer found it. Given our holding, we need not decide whether Oryem’s
testimony waived his earlier challenge to the Commonwealth’s evidence on this issue. See
generally, Hubbard v. Commonwealth, 243 Va. 1, 9, 413 S.E.2d 875, 879 (1992) (“The rule is
that ‘where an accused unsuccessfully objects to evidence which he considers improper and then
on his own behalf introduces evidence of the same character, he thereby waives his objection,
and we cannot reverse for the alleged error.’” (citation omitted)).
-5-
the old key back into service, Oryem checked out the old key and never returned it. He gave the
new key to Officer Tantiyankul. Tantiyankul searched the other parking office employee and he
did not have the old key in his possession. Thus, even if the police had not searched Oryem’s
jacket to find the old key, the jury could reasonably infer that he had the old key in his
possession simply because he checked it out and never returned it.
But having the old key in his possession at the time of his arrest did not incriminate
Oryem. On the contrary, having the new key in his possession incriminated Oryem at the time of
his arrest. Once the new key became the “missing” key, whoever had the new key would have
necessarily possessed the old key. Thus, Oryem’s possession of the new key evidenced the fact
that he took the new key from the safe and replaced it with the old key. Because he was caught
with the new key, it follows logically that he had the old key and the opportunity to
misappropriate the money deposited in the parking meters. Therefore, the fact that the old key
was found in Oryem’s upper right jacket pocket was merely cumulative evidence of a fact that
the Commonwealth had clearly proven.
In addition, the fact that Oryem regularly deposited large sums of money in quarters in
his bank account on Saturdays—the same day he generally collected the money from the parking
meters—in conjunction with the fact that he lied about the source of those quarters to his bank
and to the police, 3 support the contention that he embezzled the quarters from the parking
meters. The bank’s records show that Oryem had deposited over $33,000 in coins into his
3
Oryem told the bank teller that he received the coins from his sister’s large coin
collection, and he told the police that he received the quarters from his uncle’s vending machines
in his liquor store in Maryland. “The factfinder need not believe an accused’s explanation and, if
that explanation is not believed, may infer that the accused is lying to conceal his guilt.” Phan v.
Commonwealth, 258 Va. 506, 511, 521 S.E.2d 282, 284 (1999) (citing Toler v. Commonwealth,
188 Va. 774, 782, 51 S.E.2d 210, 214 (1949); Speight v. Commonwealth, 4 Va. App. 83, 88, 354
S.E.2d 95, 98 (1987)).
-6-
account within a period of six months. Moreover, after Oryem was fired, the parking meter
receipts quadrupled over a six-month period.
II. CONCLUSION
Assuming without deciding that Oryem’s Fourth Amendment protection against
unreasonable searches and seizures was violated, we conclude that the error was harmless
beyond a reasonable doubt. Therefore, we affirm.
Affirmed.
-7-