COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Clements and McClanahan
Argued at Richmond, Virginia
IRIS CYNTHIA FRANKLIN
MEMORANDUM OPINION* BY
v. Record No. 0968-06-2 JUDGE JEAN HARRISON CLEMENTS
SEPTEMBER 25, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Bradley B. Cavedo, Judge
Karen L. Stallard, Supervising Appellate Defender (Office of the
Public Defender, on briefs), for appellant.
Stephen R. McCullough, Deputy State Solicitor General (Robert F.
McDonnell, Attorney General; William E. Thro, State Solicitor
General, on brief), for appellee.
Iris Cynthia Franklin (appellant) was convicted in a bench trial of five counts of
embezzlement pursuant to Code § 18.2-111. We granted appeal on four of the convictions, two
felonies and two misdemeanors. On appeal, appellant contends the evidence was insufficient as
a matter of law to support her conviction. Finding no error, we affirm her convictions.
As the parties are fully conversant with the record in this case, and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of
this appeal.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I. BACKGROUND
“On appeal, we construe the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.” Zoretic v. Commonwealth,
13 Va. App. 241, 242, 409 S.E.2d 832, 833 (1991) (citing Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975)). We discard evidence favorable to the accused that
conflicts with the Commonwealth’s evidence. Wactor v. Commonwealth, 38 Va. App. 375, 380,
564 S.E.2d 160, 162 (2002). Viewed by that standard, the evidence demonstrates that from
sometime in 2002 until May of 2004, appellant was employed as a customer service
representative (CSR) and branch manager at a Richmond branch of Cash-2-U Payday Loans
(Cash-2-U), a business offering short-term loans intended for repayment upon a borrower’s
receipt of his or her next paycheck. Among other duties, appellant was responsible for
approving loans; entering into loan agreement contracts with borrowers on behalf of Cash-2-U;
receiving cash repayments; applying repayments to the borrowers’ accounts; and, entering
records of repayments into the Cash-2-U computer. Appellant was not authorized to sign checks
drawn on Cash-2-U accounts.
Typically, a borrower who met Cash-2-U loan criteria would give the CSR a blank
“security” check drawn on the borrower’s personal checking account (security check). The CSR
would record the transaction on a computer and generate a disbursement check (disbursement
check) drawn on Cash-2-U accounts and printed on the Cash-2-U laser printer. The borrower
would endorse the disbursement check; the CSR would then keep the endorsed disbursement
check and remit cash in the proper amount to the borrower. Only if the printer failed to operate
properly would a CSR be expected manually to write a disbursement check. On such occasions,
a CSR would report the printer problem necessitating a written check to the district manager,
who was responsible for repairing the printer. The procedure for handwritten disbursement
-2-
checks was otherwise identical with the procedure for disbursement checks generated by the
printer.
Upon full repayment of a loan to Cash-2-U, a CSR was expected to return to the
borrower both the security check and the original of the loan agreement contract stamped “paid.”
The returned contract functioned as the borrower’s receipt. The CSR was to keep a copy of the
security check and contract on file, and credit the borrower’s account with repayment. Cash-2-U
also accepted partial repayments, and a record was kept of each repayment. An accounting of
moneys taken in for the day was accomplished each night after the branch was closed. If by
accident a CSR failed to credit a borrower’s account, the debt typically would remain unpaid
only until the error was discovered that night. The proper amount would then be credited to the
borrower’s account on the same day it was repaid.
David Blankowski was district manager for Cash-2-U, and in that capacity supervised
twelve branches, including the branch where appellant was employed. Cash-2-U policy reflected
Blankowski’s belief that Virginia law prohibited a borrower from having more than one payday
loan outstanding at any one time. As a result, Blankowski testified that a borrower who had an
outstanding payday loan and who tried to take out another payday loan prior to paying off the
first loan typically “couldn’t get one.” In her testimony, appellant agreed, noting that the
computer system simply would not allow it.
In “early to middle 2004,” Blankowski discovered appellant had inexplicably generated a
manual disbursement check. He had no recollection of any operational issues with the printer,
and was never notified that a disbursement check had been manually written during the time he
supervised appellant. Blankowski confronted appellant, and she told him in a “defensive”
manner that the handwritten check “was something that was resolved.” Unsatisfied, Blankowski
continued to review Cash-2-U’s records and discovered other discrepancies. He confronted
-3-
appellant again, telling her that “her name is all over” the discrepant records. Appellant left the
Cash-2-U building suddenly, claiming she had a family emergency. Later that afternoon she
returned, whereupon Blankowski confronted her again. Upon being told she could be “let go” as
a result of the discrepancies, appellant became “combative” and left for the final time.
On May 6, 2004, Blankowski terminated appellant’s employment. After termination,
appellant received two subsequent paychecks for her work at Cash-2-U, each of which she
believed was less than the amount she was owed. As a result, around June 15, 2004, appellant
filed a Statement of Claim for Unpaid Wages with the Virginia Department of Labor.
On September 6, 2005, a grand jury returned indictments against appellant on six counts
of embezzlement and two counts of forgery. Trial commenced on February 9, 2006. After the
close of the Commonwealth’s case, one embezzlement charge and both forgery charges were
dismissed. Also, two embezzlement indictments were reduced to misdemeanors, as there was no
evidence relating to those indictments to show the amount embezzled was more than $200.
At the conclusion of all evidence, the trial court judge stated explicitly that he found the
testimony of each prosecution witness credible. He concluded that appellant had accepted loan
repayments from five testifying witnesses and that she intentionally failed to credit the accounts
in order to divert the funds to some other purpose. Appellant, whose testimony the trial court
failed to credit, and who had one prior misdemeanor conviction for issuing a bad check, was
convicted on three counts of misdemeanor embezzlement and two counts of felony
embezzlement. This appeal followed.
II. STANDARD OF REVIEW AND RELEVANT LAW
“‘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.’” Blake v. Commonwealth, 15 Va. App. 706,
-4-
707-08, 427 S.E.2d 219, 220 (1993) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443,
358 S.E.2d 415, 418 (1987)). “The credibility of witnesses, the weight accorded testimony, and
the inferences to be drawn from proven facts are matters solely within the province of the fact
finder.” Carter v. Commonwealth, 38 Va. App. 116, 119, 562 S.E.2d 331, 332 (2002).
“Circumstantial evidence is as competent and is entitled to as much weight as direct evidence,
provided it is sufficiently convincing to exclude every reasonable hypothesis except that of
guilt.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). “The
Commonwealth need only exclude reasonable hypotheses of innocence that flow from the
evidence, not those that spring from the imagination of the defendant.” Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
“To establish the statutory crime of embezzlement under Code § 18.2-111, it is necessary
to prove that the accused wrongfully appropriated to her use or benefit, with the intent to deprive
the owner thereof, the property entrusted to her by virtue of her employment or office.”
Waymack v. Commonwealth, 4 Va. App. 547, 549, 358 S.E.2d 765, 766 (1987). “[I]t is not
necessary to show that the defendant wrongfully appropriated the entrusted property to his or her
own personal use or benefit. Code § 18.2-111 only requires that a person ‘wrongfully and
fraudulently use, dispose of, conceal or embezzle’ the property.” Chiang v. Commonwealth, 6
Va. App. 13, 17, 365 S.E.2d 778, 780-81 (1988).
Once it is shown that assets entrusted to an accused have been misappropriated, the intent
to do so becomes a question for the trier of fact. See Shinn v. Commonwealth, 73 Va. (32 Gratt.)
899, 909 (1879) (“Had the defendant duly accounted for the [funds entrusted to him in the form
of a check], that fact would of course establish the fact that he had no intention to appropriate the
check. Not having done so, it was a question for the jury whether he intended to embezzle
. . . .”). And, as intent is an essential element of the crime of embezzlement under Code
-5-
§ 18.2-111, see Dove v. Commonwealth, 41 Va. App. 571, 581, 586 S.E.2d 890, 895 (2003)
(holding that where “the Commonwealth’s evidence failed to exclude the reasonable hypothesis
of innocence that [the accused] acted without fraudulent intent, . . . no rational trier of fact could
find him guilty beyond a reasonable doubt”), we will reverse the judgment of the trial court on
sufficiency grounds if, taking the evidence in the light most favorable to the Commonwealth, we
determine that no “rational trier of fact” could have found beyond a reasonable doubt that
appellant intended to embezzle. Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d
444, 447 (2003); see Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (recognizing that while
the trier of fact must conclude prior to conviction that every essential element of the charged
crime has been proven beyond a reasonable doubt, on appeal from that judgment an appellate
court will affirm so long as “any rational trier of fact” could so have concluded).
“Intent must often be proved by circumstantial evidence,” Dove, 41 Va. App. at 578, 586
S.E.2d at 894, and is evinced by the words or conduct of the accused. Bell v. Commonwealth,
11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991); see Wilson v. Commonwealth, 249 Va. 95,
101, 452 S.E.2d 669, 673-74 (1995) (“Intent is a state of mind that may be proved by an
accused’s acts or by his statements and that may be shown by circumstantial evidence.”). For
example, where an accused had access to an employer’s missing assets, proof that she acted
deceptively or deliberately in contravention of company policy with respect to the missing assets
may tend to establish the requisite fraudulent intent. See Smith v. Commonwealth, 222 Va. 646,
283 S.E.2d 209 (1981). Also, “‘[w]here a material element of the crime is the fraudulent intent
of the accused both the Commonwealth and the accused are allowed broad scope in introducing
evidence with even the slightest tendency to establish or negate such intent,’ including evidence
of similar frauds.” Brooks v. Commonwealth, 220 Va. 405, 407, 258 S.E.2d 504, 506 (1979)
(quoting Bourgeois v. Commonwealth, 217 Va. 268, 273, 227 S.E.2d 714, 718 (1976)); see
-6-
Charles E. Friend, The Law of Evidence in Virginia § 12-10, at 467 (6th ed. 2004) (“[O]ne
occurrence can be used as proof of another [logically connected occurrence] . . . [when] the
circumstances were in each case substantially similar.”). This includes a “pattern of conduct
evidencing an intent to defraud.” Brooks, 220 Va. at 407, 258 S.E.2d at 506; see McCary v.
Commonwealth, 42 Va. App. 119, 129, 590 S.E.2d 110, 115 (2003) (fraudulent intent in
construction fraud case established from a pattern of conduct). Thus, with reference to the
likelihood in the instant case that the unaccounted for repayments were diverted by mistake, a
fact finder might reasonably find it unlikely that an experienced manager would make the same
innocent mistake several times over the same limited timeframe and under substantially similar
circumstances. See Moore v. Commonwealth, 222 Va. 72, 76, 278 S.E.2d 822, 824 (1981)
(“[W]here the . . . intent . . . of the accused is at issue, evidence of other offenses is admissible if
it . . . negates the possibility of accident or mistake.”).
III. ANALYSIS
A. INDICTMENT 3176
Appellant was convicted of misdemeanor embezzlement relating to the repayment of a
payday loan taken by Timothy Nyambok, a frequent customer at Cash-2-U. Business records
admitted through the testimony of Blankowski indicated that on March 26, 2004, Nyambok
borrowed $150, for which the payoff amount would be $172.50. On direct examination by the
Commonwealth concerning the day he received disbursement of the loan, the following colloquy
occurred:
[Prosecutor]: Do you remember the approximate date?
[Nyambok]: I can’t remember exactly when.
[Prosecutor]: Was it March 26, 2004?
[Nyambok]: Sounds about right, yes.
-7-
[Prosecutor]: Do you remember the amount of that loan?
[Nyambok]: It wasn’t more than $120.
[Prosecutor]: Is $150 possible?
[Nyambok]: Something like that, yes.
Nyambok testified unequivocally that appellant accepted his cash repayment of “170 something”
on May 3, 2004, and that he received a receipt therefor but not the security check. Cash-2-U
records indicated no repayment on that day, and Blankowski testified that the loan account was
never repaid.1
Appellant argues that Nyambok’s responses on the issues of loan date and amount could
not establish those facts beyond a reasonable doubt, and implies that his entire testimony is
rendered therefore unreliable as a matter of law. Thus, she argues, the evidence was insufficient
for conviction. We note initially that Nyambok’s testimony was not the sole evidence to prove
the fact that he took a loan of $150 on March 26, 2004, nor even the primary evidence thereof.
Rather, Nyambok’s testimony simply corroborated to some degree the record evidence that was
admitted through Blankowski.
However, appellant also argues that the amount Nyambok borrowed and the date on
which such funds were disbursed are facts the Commonwealth had to prove beyond a reasonable
doubt. Indeed, the property alleged to have been embezzled by appellant was the cash Nyambok
testified that he repaid, not the disbursed amount. Thus, so long as it can be shown to the
requisite legal standard that the loan repayment funds were entrusted to and misappropriated by
1
For the first time on appeal, appellant argues that the evidence did not permit the trial
court to exclude as a theory of innocence the possibility that payments were credited on some
other day. We will not consider appellant’s argument not made with specificity before the trial
court. Rule 5A:18; Ohree v. Commonwealth, 25 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998); see also Edwards v. Commonwealth, 41 Va. App. 752, 760, 589 S.E.2d 444, 448 (2003)
(en banc) (“Making one specific argument on an issue does not preserve a separate legal point on
the same issue for review.”). That argument is therefore waived.
-8-
appellant in her role as CSR handling Cash-2-U loan repayments, the Commonwealth had the
burden to prove neither the specific date on which the loan was disbursed to Nyambok nor the
exact amount of the loan he procured.
Moreover, we are aware of no authority for appellant’s corollary proposition that in order
for a witness to be credible as a matter of law on matters essential to the Commonwealth’s case,
he must testify with certainty in response to every question the defense deems relevant. To the
contrary, the trier of fact could reasonably have determined from his answers that Nyambok was
uncertain or unaware of the exact amount he had borrowed almost two years before, but that his
uncertainty or ignorance did not extend to matters the prosecution was required to prove beyond
a reasonable doubt and for which his testimony was the sole evidence. See Montague v.
Commonwealth, 40 Va. App. 430, 436, 579 S.E.2d 667, 669 (2003) (noting that a fact finder
need not decide between rejecting or accepting a witness’ testimony in full, but may treat
separately each fact to which a witness testifies); Barrett v. Commonwealth, 231 Va. 102, 107,
341 S.E.2d 190, 193 (1986) (recognizing that a brain damaged witness who testified on direct
that he retained no memory of one set of facts might have other relevant and credible
recollections for cross-examination). We therefore find no plain error inhering the fact finder’s
acceptance of Nyambok’s testimony to show that he made a cash repayment of approximately
$170 to appellant and that she accepted the repayment in her capacity as CSR for Cash-2-U.
Appellant also argues that the fact that she gave Nyambok a receipt for his repayment
militates against her conviction. We decline appellant’s invitation to invade the province of the
trial court and reweigh the evidence. In a light most favorable to the Commonwealth, the
evidence shows that appellant received around $170 cash from Nyambok; the money was
entrusted to her for the sole purpose of discharging his debt to her employer; she was aware of
her obligation in this regard; and, she did not credit the repayment to Nyambok’s Cash-2-U
-9-
account. And upon consideration of appellant’s work experience, her failure to return the
security check to Nyambok in accordance with Cash-2-U standard procedure, the absence of a
proper repayment record, the fact that the missing payment was not discovered that evening, and
her behavior upon being confronted with the discrepancies, we cannot say that no reasonable
trier of fact could find that appellant intentionally diverted Nyambok’s May 3, 2004 repayment
to her own purposes.
Thus, on the charge of misdemeanor embezzlement arising out of these facts, we hold the
trial court did not err in finding the evidence sufficient as a matter of law.
B. INDICTMENT 3177
Appellant was charged with felonious embezzlement “on or about February 27, 2004,”
with reference to a loan repayment received from Gertie Battle. Sometime in 2004, Blankowski
discovered that a disbursement check had been manually written to Battle for $300, dated March
15, 2004 and posted on March 19, 2004. The check had originally been handwritten for $345,
which is the typical payoff amount for a $300 loan, but the digits “00” had been handwritten in a
heavier print over the “45.” Above the changes was the handwritten notation “I.F.,” which
Blankowski testified that he recognized as “Iris Franklin” from his previous observations of
appellant’s handwriting. The signature line read Iris Franklin, and Blankowski testified that the
signature was appellant’s. The check was endorsed by Battle, and had been cashed at her bank.
Cash-2-U records show that Battle was the borrower on a February 17, 2004 loan of
$300, and another $300 loan on March 15, 2004. Each loan contract was initialed “I.F.” on the
“company representative” line. Although Blankowski testified that he had instructed appellant
“numerous times” to sign rather than initial loan contracts, he recognized the initials as
appellant’s handwriting.
- 10 -
Battle corroborated the record evidence that she borrowed $300 on February 17, 2004
and March 15, 2004. Although unsure of exact dates, she testified that on the day she received
the handwritten March 15 disbursement check appellant told her that it was manually
handwritten because the cash drawer had already been “closed out.”
The statements of the only two Commonwealth witnesses who testified concerning the
February 17, 2004 loan and the March 15, 2004 loans seemed to be contradictory. Blankowski
testified that “the loan dated [February 17, 2004] was paid in full on April 8, 2004,” but the
March 15, 2004 loan was never repaid in full or otherwise. Battle testified unequivocally that
she repaid both the February and the March loans in cash to appellant. Later, Blankowski
testified that there was no “record of a disbursement for [the March 15, 2004] loan,” and again
that there was no record of repayment. Battle testified that she received both the February 17
loan and the March 15 loan disbursement checks. Finally, Blankowski testified that Battle
“came in on March 15 to get a loan [while] she still had an outstanding loan from February 17
that wasn’t paid off,” while Battle testified that she had never borrowed from Cash-2-U while
another payday loan was outstanding. Cash-2-U records contained a copy of a loan contract
initialed by appellant showing that Battle borrowed $300 on March 15, 2004, while her February
17, 2004 loan was still apparently outstanding, and Blankowski so testified as well.
On appeal, the Commonwealth hypothesizes that Battle repaid her February 17, 2004
loan sometime before March 15, 2004, but appellant did not credit the money she received to
Battle’s account. Instead, she appropriated the funds to her own purposes. Subsequently, on
March 15, 2004, when Battle sought another $300 loan, appellant was forced to write the
disbursement check manually, since the computer would not print a disbursement check for a
borrower with an outstanding loan. On April 8, 2004, when Battle repaid what she believed was
- 11 -
the March 15 loan, that amount was actually applied to the February 17 loan, leaving the March
15, 2004 loan outstanding.2
Appellant contends that this theory of guilt fails because the evidence shows the missing
repayment funds were intended to repay the February 17 loan that was, in fact, discharged on
April 8, 2004. We disagree. Although the trial court made no specific statement of the theory on
which conviction rested, it resolved the apparent contradictions in the evidence. Whether or not
the repayment on April 8, 2004 was applied to the February 17 loan or the March 15 loan is not
relevant to appellant’s guilt, since the payment alleged to have been embezzled under this
indictment is the payment made to appellant prior to disbursement of the March 15 loan, “on or
about February 27, 2004.” On the evidence, appellant never applied that payment to either of
Battle’s debts.
Taken in a light most favorable to the Commonwealth, the evidence demonstrates that
Battle entrusted appellant with funds to repay two loans in their entirety and that she discharged
only one loan. A trier of fact could reasonably determine that appellant’s explanation to Battle
concerning the handwritten disbursement check was merely a contrivance to conceal her earlier
fraud. We cannot say that no rational trier of fact could conclude from her conduct, as well as
the absence of a proper record, the fact that the discrepancies were not discovered until well after
they would have been typically, the similarity of this occurrence to other failed repayments, and
2
The Commonwealth did not appear to advance exactly the same theory of guilt at trial
as it does on appeal, as there was some confusion in the lower court as to whether testimony
showed the missing funds Battle entrusted to appellant were applied to the February 17 loan or
the March 15 loan. Appellant implies in her brief that the procedural bar set forth in Rule 5A:18
should therefore operate to preclude the Commonwealth’s appellate argument. However, Rule
5A:18 applies only to rulings of the trial court offered on appeal as a basis for reversal, Cross v.
Commonwealth, 49 Va. App. 484, 494, 642 S.E.2d 763, 768 (2007), and we are aware of no
authority to prevent an appellee from raising a previously unexpressed theory of guilt on which
the trial court may have relied, see Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (recognizing
that our inquiry is what a “rational trier of fact” could have found based on the evidence
presented). This argument is therefore without merit.
- 12 -
appellant’s behavior upon confrontation, that appellant intentionally diverted the missing funds
to her own purposes. Thus, we hold the trial court did not err in finding the evidence of this
charge of felony embezzlement sufficient as a matter of law.
C. INDICTMENT 3178
Around March 31, 2004, Cheryl Williams took a $150 payday loan and left a $172.50
security check with Cash-2-U. Although unsure of the date, Williams testified that later that
month she made a $172.50 cash repayment to appellant with the intention fully to discharge the
loan. Rather than returning her security check and contract at the time of repayment, appellant
told Williams that her security check would be mailed to her. Williams left the store without a
receipt, but returned days later when she discovered that money had been drawn from her
account to cover the security check and that she had therefore repaid the same loan twice.
Cash-2-U returned $172.50 to Williams, since, according to Blankowski, she “already paid.”
Blankowski testified that Cash-2-U never received repayment for this loan.
Appellant was convicted for misdemeanor embezzlement. As with Nyambok, appellant
asserts that Williams’s lack of certainty about the date of her loan renders the rest of her
testimony unreliable as a matter of law. Again, we disagree.
Appellant also seems to argue, however, that Blankowski’s reimbursement to Williams
insulates her from conviction because the reimbursement solely on Williams’s word somehow
demonstrates Cash-2-U’s “substandard record keeping” was the explanation for these
discrepancies. This argument is based on a factual determination not made by the trial court that
Cash-2-U’s record keeping was substandard, and would thus seem to fail at its inception. But
even if we were to grant appellant’s assertion that Cash-2-U’s business records were unreliable
for purposes of this repayment, that fact would not diminish the probative value of Williams’s
direct testimony and the fact finder’s permissible reliance thereon. Her testimony showed that
- 13 -
she entrusted $172.50 in cash to appellant while another $172.50 had already been entrusted to
Cash-2-U in the form of her security check. All parties agree the security check should have
been returned to Williams once her cash repayment was tendered, since a security check was to
be cashed only if a payday loan is not discharged by repayment. Williams testified instead that
her security check was not returned, but was cashed by Cash-2-U to cover a debt she had already
paid to the appellant. The trier of fact could reasonably determine from this evidence that
appellant failed to credit the $172.50 repayment to William’s account. And in light of
appellant’s work experience and other similar discrepancies, the failure to reconcile the missing
funds at the time the store closed, and appellant’s behavior upon confrontation, a reasonable trier
of fact could conclude solely from testimonial evidence that appellant failed to do so
intentionally. We therefore hold that the trial court did not err in finding the evidence of this
misdemeanor embezzlement charge sufficient as a matter of law.
D. INDICTMENT 3179
Blankowski testified that Cash-2-U’s records showed that on March 31, 2004, Carrie
Cicuto contracted with appellant at Cash-2-U to borrow $450. She testified that she had taken a
payday loan on one other occasion as well. On direct examination, the following colloquy
occurred:
[Prosecutor]: Do you remember the amount of the loan that you
took out [on March 31, 2004]?
[Cicuto]: Three-something.
[Prosecutor]: Could it have been $450?
[Cicuto]: It might have been.
Cicuto testified that she repaid the full payoff amount of $517.50 either in cash or with a check
for $517.50 and that she received in return her security check and a receipt. However,
Blankowski testified that Cash-2-U’s records indicated that on April 26, 2004, Cicuto made only
- 14 -
a $300 partial repayment. The computer record for that payment referenced appellant’s
computer password, indicating to Blankowski that she was the CSR who took repayment.
On cross-examination, the following colloquy occurred:
[Appellant]: At first you said you thought the loan was for about
$300. And then [you said it could be $450]. So which is it, $300
or $450?
[Cicuto]: [] I can tell you that I don’t know the specific amount.
[Appellant]: Is it possible it was $300?
[Cicuto]: Sure, it’s possible.
[Appellant]: And you remember paying with a check, not cash?
[Cicuto]: Yes.
[Appellant]: And you did receive a receipt?
[Cicuto]: Yes.
[Appellant]: And the person that you paid [] was?
[Cicuto]: [indicating appellant].
Under further cross-examination, Cicuto testified that she was not “a hundred percent certain”
that she had dealt with appellant and that it was possible that she had dealt with a different CSR.
Appellant argues that there is insufficient evidence to support the Commonwealth’s
theory that appellant took Cicuto’s repayment of $517.50, credited $300 to Cicuto’s account, and
diverted the remaining $217.50 to her own purposes. Appellant contends that Cicuto’s
recollections concerning the March 31, 2004 loan cannot have proven to the fact finder beyond a
reasonable doubt the amount of the loan, the repayment amount, or the identity of the CSR who
took repayment. However, Cicuto’s testimony is not the sole evidence in this case. Blankowski
testified, based on Cash-2-U records, that Cicuto took out a $450 loan on March 31, 2004, for
which the repayment amount was $517.50. This argument is therefore without merit.
- 15 -
Blankowski’s testimony shows further that $300 was credited to Cicuto’s Cash-2-U
account on April 26, 2004, whereas Cicuto testified unequivocally that she gave appellant the
full repayment amount. As in the case of Battle’s loan, their contradictory testimony can be
resolved by concluding that appellant failed to apply the remaining $217.50 to Cicuto’s debt.
Based on our review of the evidence in a light most favorable to the Commonwealth, we cannot
say a rational trier of fact could not so have found. We hold therefore that the trial court did not
err in finding the evidence of this felony embezzlement charge sufficient as a matter of law.
IV. CONCLUSION
Having found that there was sufficient evidentiary support for every necessary element of
each offense for which appellant was convicted, we affirm appellant’s convictions.
Affirmed.
- 16 -