Denise Kelly O'Brien, etc. v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Fitzpatrick and Senior Judge Hodges
Argued at Alexandria, Virginia
DENISE KELLY OBRIEN, SOMETIMES KNOWN AS
DENISE KELLY O'BRIEN
v. Record No. 1451-94-4 MEMORANDUM OPINION *
BY JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA FEBRUARY 20, 1996
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Donald M. Haddock, Judge
J. Amy Dillard, Assistant Public Defender, for
appellant.
H. Elizabeth Shaffer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Denise Kelly OBrien (appellant) appeals from a judgment of
the Circuit Court of the City of Alexandria finding her guilty of
embezzlement between April 1 and September 30, 1993, and between
October 1 and December 7, 1993. She contends that her
convictions should be reversed because the evidence was
insufficient to prove beyond a reasonable doubt that she
committed the charged offenses. We disagree and affirm the
convictions.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
From June of 1992 to December of 1993, appellant was
employed by Teddy Bear Day Care, which operates three day care
centers for children in Alexandria and one in Fairfax.
Originally hired as a part time office assistant, appellant made
computer entries of payments received at the Alexandria centers.
Appellant subsequently became a full time employee. In April of
1993, appellant was given the responsibility of collecting
payments several times each week from the locked cash drop box
maintained at each of the three Alexandria centers.
When cash was received at each center, the director or a
teacher would count the money in front of the person making the
payment and place it in an envelope with the child's name and the
amount written upon it. The employee would issue a numbered
receipt from the cash receipts book and record the number of the
receipt on the envelope. A duplicate of the receipt remained in
the cash receipts book. The employee sealed the envelope and
placed it in the drop box. In addition to recording the payment
in the receipt book, the employee would note cash payments in the
"message book" and on the account card kept for each child.
At two of the Alexandria centers, appellant had the only key
to the drop box. At the other Alexandria center, appellant and
the director had keys. It was appellant's job to collect the
cash and checks from the drop boxes on Mondays, Wednesdays, and
Fridays, and deposit the contents at the bank on Mondays,
Tuesdays, and Thursdays. Appellant would advise Wanda Webb, the
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owner of the Teddy Bear, of the deposit amount. Appellant would
make computer entries reflecting the deposit.
Webb testified that she would record the deposit amounts
appellant reported, make weekly totals, and compare these
notations with the bank statements. It was appellant's
responsibility to compare the weekly totals with the cash receipt
books.
Rosemary Burton, the day care administrator, admonished
appellant repeatedly about comparing the actual amounts of cash
she removed from the drop box with the duplicate cash receipts.
When she collected the money, however, appellant did not follow
such a procedure.
In May of 1993, appellant also became responsible for
comparing enrollment figures with the deposit figures. Appellant
did not advise Webb that large amounts of cash were missing,
which such a comparison would have revealed.
Webb did not compare her notes concerning the deposits with
the cash receipt books until late November of 1993, when she
suspected that money was missing. Webb calculated that from
April to December of 1993, there was a shortfall of $22,377.10 in
cash deposits to the bank as compared with the cash receipts and
enrollment entries on the computer for the Alexandria centers.
In the account of one child $1200 in cash had been received at
the center but not deposited in the bank. Furthermore, after
Burton told appellant that she was going to examine the cash
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receipt book at one of the centers, the book mysteriously
disappeared.
There was no shortfall at the Fairfax center, where
appellant had no responsibility for collecting money from the
drop box. Moreover, Webb discovered that cash had been lost from
the Alexandria centers during the vacation period of each
center's director.
Witnesses testified that in the fall of 1993, appellant's
financial situation appeared to improve considerably, whereas a
few months before she had inquired about filing for bankruptcy.
She possessed large amounts of cash, acquired a new car and
wardrobe, and provided a spending allowance for her boyfriend.
Once when appellant was too ill to make the scheduled
deposit, Burton went to appellant's home to pick up the money
appellant previously had collected from the drop boxes. When
Burton compared the cash to the receipt books at the centers, she
found three cash payments missing. Burton called appellant, who
said she had the cash. Burton returned to appellant's home and
appellant gave her cash exactly matching the three missing
payments. During the remainder of appellant's illness and
absence from work, there was no discrepancy between cash received
at the Alexandria centers and that deposited in the bank.
"To establish the crime of embezzlement under Code
§ 18.2-111, the Commonwealth must prove that the accused
wrongfully appropriated to his or her own use or benefit, with
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the intent to deprive the owner thereof, the property entrusted
or delivered to the accused." Zoretic v. Commonwealth, 13 Va.
App. 241, 243, 409 S.E.2d 832, 833-34 (1991). To establish
appellant's guilt, "[t]he 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." Waymack
v. Commonwealth, 4 Va. App. 547, 549, 358 S.E.2d 765, 766 (1987)
(quoting Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29
(1963)).
Appellant argues that the evidence proved neither the corpus
delicti nor that she was the criminal agent. She relies upon
Webb, where the evidence was found insufficient to sustain the
defendant's embezzlement conviction. In Webb, the defendant's
duties of collecting money and depositing it at the bank were
shared by other employees of the business. The defendant and
others had used money in the cash drawer to make change for
customers, to cash personal checks, and for personal loans.
Petty cash was co-mingled with these funds, and there was no way
to discern how much had been paid out of the drawer in the course
of legitimate business. Moreover, not all of the receipts were
deposited into the bank. Because of the lack of internal
controls present in the business' accounting system and the
access of many to the firm's receipts, the evidence was
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insufficient to prove that an embezzlement occurred. Id. at 35,
129 S.E.2d at 30.
By contrast, the evidence in this case demonstrated that the
loss sustained by Teddy Bear could have occurred only through
embezzlement by appellant. From the discrepancies noted between
the bank deposit slips and the cash receipts during the periods
of the indictments, it was apparent that the three Alexandria
centers had accepted cash for which a receipt was issued, but the
cash was never deposited in the bank. The procedure for
receiving cash included placing it in an envelope and into the
locked drop box. Appellant possessed the only key to the drop
box at two of the three affected centers.
Moreover, appellant was the only person responsible for
collecting payments from the locked cash drop box, depositing the
funds in the bank, and comparing the deposit figures with the
cash receipts book. However, she never reported that the cash
receipts did not equal the cash deposits she made to the bank.
In calculating the amount of the loss, Webb compared the deposits
to Teddy Bear's bank account with the amount that should have
been generated considering the enrollment figures and the tuition
rate. Performing such a comparison, which was appellant's job,
would have revealed much sooner than November of 1993 that a
significant amount of cash was missing.
Teddy Bear suffered no loss of cash from the Fairfax center,
where appellant was not involved with the deposits.
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Significantly, during her illness appellant withheld from Burton
three cash payments, despite having given Burton what she
purported to be the entire deposit. She provided no explanation
for this conduct. No cash was unaccounted for during the
remaining period of appellant's illness. Discrepancies were
present, however, during the vacations of the directors of the
Alexandria centers.
The court rejected appellant's testimony that she did not
take any of the money for her own benefit. "The weight which
should be given to evidence and whether the testimony of a
witness is credible are questions which the fact finder must
decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351
S.E.2d 598, 601 (1986). Indeed, "[t]he fact finder need not
believe the accused's explanation," Black v. Commonwealth, 222
Va. 838, 842, 284 S.E.2d 608, 610 (1981), and may "infer that he
[is lying] to conceal his guilt." Speight v. Commonwealth, 4 Va.
App. 83, 88, 354 S.E.2d 95, 98 (1987) (citing Carter v.
Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)).
The trial judge concluded that the evidence against
appellant was "overwhelming." The Commonwealth's evidence was
sufficient to prove beyond a reasonable doubt that appellant
wrongfully appropriated money entrusted to her by Teddy Bear,
that she acted with criminal intent, and that her conduct was
designed to conceal her criminal purpose. See Smith v.
Commonwealth, 222 Va. 646, 652, 283 S.E.2d 209, 212 (1981).
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Accordingly, appellant's convictions are affirmed.
Affirmed.
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