Scott Tribuzi, s/k/a, etc. v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia
SCOTT TRIBUZI, S/K/A
SCOTT BRUCE TRIBUZI
OPINION BY
v. Record No. 1794-96-2 JUDGE JAMES W. BENTON, JR.
JULY 22, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Ernest P. Gates, Judge Designate
William H. Parcell, III (Phillips, Webb &
Wallerstein, P.C., on brief), for appellant.
Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Kimberley A. Whittle, Assistant Attorney
General, on brief), for appellee.
Scott Bruce Tribuzi was convicted of embezzling an amount of
money greater than $200 from his employer, the Richmond Memorial
Hospital, during the period of July 14, 1995 through July 17,
1995. See Code § 18.2-111. Tribuzi argues on appeal that (1)
the evidence was insufficient to support the conviction, and (2)
the evidence was insufficient to prove that venue was proper in
the Circuit Court of the City of Richmond. For the reasons that
follow, we reverse the conviction and dismiss the indictment.
I.
The evidence proved that Tribuzi was the Director of Support
Services at Richmond Memorial Hospital. One of his duties was to
count the money the food service cashiers deposited into one of
the safes at the hospital. Tribuzi shared this responsibility
with June Walton and Glenda Moody, both of whom also had access
to the safe. After counting the money, a deposit slip would be
completed and recorded. The money would be placed into a bank
bag and given to a member of the hospital's security staff for
deposit.
Latina Thomas, one of the cashiers, testified that she
worked as a cashier from July 14, 1995 through July 17, 1995.
Thomas testified that at the end of her shift she would count the
money in the register, record the total on a "face sheet," and
attach a register receipt to the face sheet. The register
receipt was used to "verify the information contained in the
[face] sheets." Although the amount indicated on the face sheet
should match the amount reported on the cash register receipt,
Thomas testified that the amounts sometimes differed. The
discrepancies on Thomas' sheets for the four days varied from one
dollar to several hundred dollars. Thomas could not explain the
discrepancies.
Several other cashiers also testified that the cash register
receipts and the face sheets often contained discrepancies. One
cashier testified that the cash register receipt attached to her
face sheet contained no indication of the cash she collected.
She testified that at the end of her work shift she "counted what
was in the register and [the register tape] didn't actually tell
you how much you made."
Glenda Moody, the Cash Operations Manager for Nutrition
Services, testified that she shared with Tribuzi the
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responsibility for counting the money in the safe. Moody stated
that the money was counted the morning after it was put in the
safe and that the individual who counted the money would fill out
a deposit slip and a cash register reconciliation sheet. Moody
also testified that she and Tribuzi had discussed the cashiers'
discrepancies in the past and that after Tribuzi ceased working
at the hospital the discrepancies continued to appear.
Kenneth Taylor, the Director of Security, testified that he
and his security staff had access to the safe where the cashiers
deposited the money. Taylor stated that on July 20, 1995 he
found the cashiers' face sheets pertaining to the period of July
14, 1995 through July 17, 1995 in the trash can in Tribuzi's
office. Taylor also testified that $1,800 had been taken from
another hospital safe after Tribuzi ceased working at the
hospital.
Timothy Patterson, the Internal Auditor for the hospital,
was involved in the investigation of Tribuzi conducted by the
hospital. Patterson determined that for the days of July 14 to
July 17, a discrepancy of $1,010 existed between the amount of
money the cashiers reported and the amount of money deposited in
the bank.
June Walton, a Department Supervisor, testified that she was
with Tribuzi when he counted the money on July 17 and 18. Walton
testified that she did not see Tribuzi do anything improper or
illegal. She also testified that the amount reported on a
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cashier's face sheet and the amount of money the cashier put in
the safe would sometimes differ. She further testified that
Tribuzi initially was given the responsibility to count the money
"[b]ecause the variances [detected in the cashiers' reports] were
coming so close together, that money looked like it was missing."
At the conclusion of the Commonwealth's evidence, Tribuzi
moved to strike the evidence on the grounds that the Commonwealth
failed to prove venue and that the evidence was insufficient to
prove embezzlement beyond a reasonable doubt. The trial judge
offered to allow the assistant Commonwealth's attorney to reopen
the case-in-chief to offer evidence concerning venue. The
assistant Commonwealth's attorney stated that venue had been
proved and declined the opportunity. The trial judge overruled
Tribuzi's motions.
Tribuzi testified that the discrepancy problems in the
cashiers' reconciliations were long standing. He said that he
had sought to identify "whether it was a cashier problem, a cash
register problem, or a theft." He had attempted to correct the
problems through in-service training.
Tribuzi denied embezzling money. He testified that he
counted the money the cashiers deposited during the period of
July 14, 1995 through July 17, 1995 and noticed large
discrepancies. Tribuzi testified that he planned to discuss the
problem with Moody when she returned from her vacation leave.
Tribuzi also testified that he routinely placed papers in
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his trash can and that he "used [his] trash can as a filing
system" until he was sure that the papers were no longer needed.
He further testified that his office remained locked and that
the security director was the only person who had a key to his
office. He stated that the housekeeping staff could only enter
his office when he was present.
At the close of Tribuzi's evidence, Tribuzi renewed his
motions. The trial judge overruled the motions and convicted
Tribuzi of embezzlement.
II.
"To establish the statutory crime of embezzlement under Code
§ 18.2-111, it is necessary to prove that the accused wrongfully
appropriated to [his] use or benefit, with the intent to deprive
the owner thereof, the property entrusted to [him] by virtue of
[his] employment or office." Waymack v. Commonwealth, 4 Va. App.
547, 549, 358 S.E.2d 765, 766 (1987) (footnote omitted). In
addition, the following principles are applicable to cases, such
as this case, that are based on circumstantial evidence:
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.
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* * * * * * *
A bookkeeper cannot be held criminally
liable for embezzling funds merely because
the funds received had not been deposited
where there is an obvious lack of internal
control and where persons other than the
accused received funds and made some entries
in the accounts in the absence of a showing
that he converted the funds to his own use.
Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29-30
(1963).
The evidence proved that Tribuzi was not the only employee
who had access to the money in the safe. The security staff had
access to the safe. In addition, Glenda Moody testified that she
and June Walton, who were also responsible for counting the money
deposited by the cashiers, had access to the safe. Thus, the
Commonwealth failed to disprove the reasonable hypothesis that
another individual who had access to the safe removed money from
the envelopes.
The evidence also established that the information reported
by the cashiers contained numerous internal discrepancies. The
total amount of money the cashiers reported often did not match
the amount reported on the receipts produced by their registers.
To address this problem, Glenda Moody spoke to the cashiers to
"re[inforce] accuracy . . . and . . . to make sure they [weren't]
making errors in things like counting." This evidence supports a
reasonable hypothesis that the amount of money the cashiers
actually placed into the envelopes did not match the amount of
money the cashiers reported on their face sheets. Simply put,
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the evidence failed to exclude the reasonable hypothesis that the
discrepancy was caused by counting errors committed by the
cashiers.
Based on this evidence, we hold that the Commonwealth failed
to "overcome the presumption of innocence and establish
[Tribuzi's] guilt beyond a reasonable doubt." Id. at 34, 129
S.E.2d at 29. Accordingly, we reverse the conviction and dismiss
the indictment. 1
Reversed and dismissed.
1
Because we hold that the evidence was insufficient to support
the embezzlement conviction, we need not address Tribuzi's
contention that the evidence was insufficient to prove venue under
Code § 19.2-244. Tribuzi's argument that the evidence failed to
prove that the alleged offense occurred in the City of Richmond
raises an issue of venue and does not constitute an allegation
that the circuit court lacked jurisdiction, or inherent power, to
decide this case. See Southern Sand and Gravel Co. v. Massaponax
Sand and Gravel Corp., 145 Va. 317, 328, 133 S.E. 812, 815 (1926)
("'That the action is tried in a county other than that declared
by statute the proper county for its trial does not go to the
jurisdiction, and does not invalidate the judgment.'") (citation
omitted); cf. Garza v. Commonwealth, 228 Va. 559, 565-66, 323
S.E.2d 127, 130 (1984) (stating that "all circuit courts have
jurisdiction over all felonies committed in the Commonwealth").
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