Jodi Lynn Boley v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Petty
UNPUBLISHED
Argued at Richmond, Virginia
JODI LYNN BOLEY
MEMORANDUM OPINION ∗ BY
v. Record No. 0033-12-2 JUDGE WILLIAM G. PETTY
APRIL 16, 2013
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
Gordon F. Willis, Judge
John D. Mayoras (Spencer, Mayoras, Koch & Cornick, on brief), for
appellant.
Elizabeth C. Kiernan, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Appellant, Jodi Lynn Boley, was convicted by a jury of five counts of embezzlement in
violation of Code § 18.2-111. Boley was sentenced to seven years in prison and ordered to pay
$1,405,000 in restitution to the victim, VTS Productions, Inc. On appeal, Boley argues that the
trial court abused its discretion in calculating the restitution amount. We reverse and remand for
further proceedings to calculate the appropriate amount of restitution.
I.
Because the parties are fully conversant with the record in this case and this
memorandum opinion carries no precedential value, we recite below only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal. “On appeal, ‘we review the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v.
∗
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v.
Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).
II.
Boley contends that the trial court abused its discretion by ordering restitution based
solely on figures listed in a victim impact statement, without evidence that the amount of loss
alleged was actually caused by Boley’s crimes. We agree.
We review a trial court’s decisions on restitution and other sentencing matters under an
abuse of discretion standard. See Burriesci v. Commonwealth, 59 Va. App. 50, 55, 717 S.E.2d
140, 143 (2011); Alger v. Commonwealth, 19 Va. App. 252, 257, 450 S.E.2d 765, 768 (1994).
“On appeal, where the restitutionary amount is supported by a preponderance of the evidence
and is ‘reasonable in relation to the nature of the offense,’ the determination of the trial court will
not be reversed.” Burriesci, 59 Va. App. at 55-56, 717 S.E.2d at 143 (quoting McCullough v.
Commonwealth, 38 Va. App. 811, 817, 568 S.E.2d 449, 451-52 (2002)). An abuse of discretion
occurs “when a relevant factor that should have been given significant weight is not considered;
when an irrelevant or improper factor is considered and given significant weight; and when . . .
the court, in weighting those factors, commits a clear error of judgment.” Turner v.
Commonwealth, 284 Va. 198, 206, 726 S.E.2d 325, 329 (2012) (quoting Landrum v.
Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)).
Although it is within the trial court’s discretion, the scope of restitution is limited “to payments
for ‘damages or losses caused by the offense.’” Howell v. Commonwealth, 274 Va. 737, 740,
652 S.E.2d 107, 108 (2007) (citing Code §§ 19.2-303, -305(B)). Those “[c]osts that result only
indirectly from the offense, that are a step removed from the defendant’s conduct, are too remote
and are inappropriate for a restitution payment.” Id. at 741, 652 S.E.2d at 109.
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The Commonwealth’s argument relies on this Court’s holding in Alger that “the
legislature intended that the victim impact statement be used by the trial judge to determine the
amount of restitution.” 19 Va. App. at 259, 450 S.E.2d at 769. However, Alger does not hold
that these statements are conclusive proof of the appropriate restitution amount. Nor does it
relieve the trial judge from determining whether, by a preponderance of the evidence, the
damages or loss claimed were in fact caused by the offense for which Boley was convicted. The
dispute in Alger involved the use of insurance payout figures in a victim impact statement to
determine the value of specific items taken in the robbery for which the defendant was convicted.
Thus, there was an obvious causal connection between the defendant’s crime and the losses
listed in the victim impact statement. Furthermore, the figures were accompanied by testimony
from the probation officer who prepared the report that “he had personally contacted each
insurance company or its agents and obtained the actual value of the property stolen, recovered,
claimed on insurance, and reimbursed through insurance coverage.” Id. at 258, 450 S.E.2d at
768.
After this case was argued we decided Sigler v. Commonwealth, ___ Va. App. ___, ___
S.E.2d ___ (Apr. 2, 2013), involving the issue of the appropriate amount of restitution for items
taken in a theft. In that case, however, it was undisputed that the value of the property stolen was
a legitimate basis for an award of restitution. The dispute was over quantum of proof necessary
to establish the value of the property taken, not whether the victim’s loss was caused by the theft.
The victim who prepared the figures testified at sentencing, stating she had prepared a list of
each missing item and estimated its value and that she had provided this same list to her
insurance company—subjecting her to the risk of nonpayment on her claim or prosecution for
insurance fraud if the amounts were false or inflated. Id.; see also Burriesci, 59 Va. App. at 54,
717 S.E.2d at 142 (upholding a restitution award where the trial court was “presented a 12-page
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exhibit indicating that appellant had received [improper] reimbursements from [Virginia’s
Medicaid administrator] totaling $180,082”).
Unlike Alger and Sigler, here there is no evidence from which the trial court could
determine whether the claimed damages were caused by Boley’s embezzlement. 1 A significant
portion of the restitution award consists of tax liabilities incurred by the victim corporation
during the time of Boley’s embezzlement scheme. It is not clear from this record if this amount
reflects only fines and penalties for late payment, which would be appropriate for a restitution
award, or whether it includes the company’s original unpaid tax liability, which arose
independently of Boley’s embezzlement. To the extent that Boley embezzled funds that were
intended to pay the corporation’s payroll tax liability, it is appropriate that she be ordered to
return those funds, and to take responsibility for any penalties and interest that accrued because
of her deception regarding whether the taxes were paid. 2
Nevertheless, the company’s original obligation to remit payroll taxes to the Internal
Revenue Service was not “caused by” Boley’s embezzlement; it arose as a result of the operation
of the Internal Revenue Code. See Howell, 274 Va. at 741, 652 S.E.2d at 109 (“[T]he
installation of a security system, while related to Howell’s burglary, was not caused by the
offense as required by Code §§ 19.2-303, -305(B), -305.1(A).”). Boley was already ordered to
return the money she diverted from tax payments into her personal accounts, which the
1
The trial court based the restitution award of $1,405,000 on a victim impact statement
prepared by Chris Chandler, appellant’s brother and president of VTS Productions. Chandler
itemized the damages suffered due to appellant’s embezzlement as follows: an “estimated
$750,000” owed to the “IRS & State of Virginia;” an “estimated $350,000” in “VTS Theft;”
$250,000 in a “Trust Fund Penalty;” and $55,000 in legal and accounting fees. The total amount
of loss according to Chandler was $1,405,000. Chandler provided no supporting documentation
that detailed how he arrived at these figures.
2
The victim impact statement also includes an amount the victim paid for attorneys and
accountants to unravel Boley’s embezzlement scheme. To the extent these payments were made
to uncover the extent of the crime, they would be considered a loss caused by Boley’s
embezzlement.
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corporation could then remit to the IRS to cover its tax liabilities. To require Boley to return the
embezzled money and assume liability for the company’s unpaid payroll taxes would constitute
a double payment.
There is also a large discrepancy between the amount of money that was proven to be
embezzled at trial—approximately $156,000—and the amount attributed to “theft” on the victim
impact statement—$350,000. We recognize that the standard of proof is different at sentencing,
and a restitution award is not restricted to the amount proven at trial. See McCullough, 38
Va. App. at 817, 568 S.E.2d at 451 (“[F]ailure to prove the entire amount of loss caused by the
offense during the guilt phase . . . did not preclude the imposition of a greater amount upon
proper proof during the sentencing phase.”). Without any evidence of how this additional
amount was calculated, or how it relates to Boley’s crimes, there is no basis for the trial court to
make such an award.
Because there was no evidence to show how the amounts on the victim impact statement
were derived, or how the losses were caused by Boley’s embezzlement, we hold that the trial
court abused its discretion in ordering the amount of restitution.
III.
For the foregoing reasons, we reverse and remand for further proceedings to determine
the appropriate restitution award consistent with this opinion.
Reversed and remanded.
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