COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Overton
Argued at Salem, Virginia
BEVERLY BUSH KINGSLEY
v. Record No. 0587-03-2 MEMORANDUM OPINION* BY
JUDGE D. ARTHUR KELSEY
COMMONWEALTH OF VIRGINIA AUGUST 10, 2004
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Taylor B. Stone (Murray J. Janus; Bremner, Janus, Cook & Marcus,
on briefs), for appellant.
Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore,
Attorney General; Jennifer R. Franklin, Assistant Attorney General,
on brief), for appellee.
On four grounds, Beverly Bush Kingsley challenges her convictions on two counts of
embezzlement under Code § 18.2-111 and one count of credit card theft under Code § 18.2-192.
First, she claims the prosecutor made objectionable comments during closing arguments.
Second, she argues that the trial court should have consolidated the two embezzlement charges
into a single count. Third, Kingsley contends she could not be convicted of credit card theft of a
card “rightly in her possession.” Finally, she challenges the sufficiency of the evidence
supporting her embezzlement convictions. Finding these arguments either procedurally
defaulted or substantively meritless, we affirm.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I.
On appeal, we review the evidence “in the light most favorable” to the Commonwealth.
Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted).
That principle requires us to “discard the evidence of the accused in conflict with that of the
Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and
all fair inferences that may be drawn therefrom.” Kelly v. Commonwealth, 41 Va. App. 250,
254, 584 S.E.2d 444, 446 (2003) (en banc) (citation omitted).
Patrick and Arlette deBarros own Edgemont Farm, a cattle farm near Charlottesville.
Citizens of both France and Portugal, the deBarroses visit the farm several times each year and
employ full time workers to run the farm and considerable estate located on the property. In
May 1998, Patrick deBarros hired Beverly Kingsley as a bookkeeper and financial agent for
Edgemont. Her job required her to pay farm expenses from the farm’s checking account, to
deposit checks payable to Patrick deBarros in a separate family checking account, to pay for
miscellaneous expenses from one of two other personal checking accounts, and to make any
personal purchases specifically requested by the deBarroses. For all farm related expenses,
Patrick deBarros instructed Kingsley to pay invoices by check to the extent possible.
The deBarroses had a number of personal credit cards. Kingsley was given permission to
use the cards when making purchases on behalf of, and only when specifically requested by, the
deBarroses. One set of cards was issued on an American Express Gold Card account. When
Patrick deBarros received in the mail Platinum Cards from American Express on a new account
number, he directed Kingsley to cancel the older Gold Cards and to close the account. Instead of
doing so, Kingsley retained a set of renewed Gold Cards and continued to use the card issued in
Arlette deBarros’s name. After instructing Kingsley to close the account, the deBarroses did not
authorize any purchases on this account.
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In 2000, an accountant working for the deBarros family discovered that the farm’s cash
expenditures for 1999 had tripled from the year before (from around $25,000 to around $80,000)
and that Kingsley was no longer producing the required monthly financial reports. When
confronted with these facts, Kingsley quit. The day she tendered her resignation and walked out,
Kingsley cut herself a check for three weeks of unauthorized vacation pay.
Further review of the accounts revealed that between August 1998 and October 2000
Kingsley signed 109 checks made payable to cash. She also signed Patrick deBarros’s name on
several other checks drawn by others made payable to him. She cashed these checks as well.
The deBarroses discovered that the American Express Gold account had been renewed, not
cancelled, in 1999. Kingsley “used abusively” the renewed cards for her own personal benefit,
charging approximately $11,000 in purchases made after March 1999. In addition, she wrote
four checks to pay an American Express Gold Card invoice for purchases she claimed to have
made for Arlette deBarros. Mrs. deBarros denied requesting or receiving any of these purchased
items.
Kingsley’s personal banking records showed she opened a checking account with a zero
balance on September 1, 1999. In the first month alone, she made at least ten cash deposits from
unverified sources totaling over $9,500. The large cash deposits continued throughout the tenure
of her employment in amounts ranging from a couple thousand to several thousand dollars a
month. Beginning in November 2000 ― after Kingsley left her job at Edgemont Farm ― the
deposits decreased dramatically, amounting to little over $1,000 per month.
At trial, Kingsley denied taking any money for personal gain. All of the apparent
defalcations, she asserted, could be explained as either legitimate payments of farm expenses by
cash or authorized purchases specifically requested by the deBarroses. She admitted, for
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example, using the American Express Gold Card after being instructed to close the account, but
claimed she used the card to make purchases for Arlette deBarros.
At the close of the prosecution’s evidence, Kingsley requested that the two embezzlement
charges be consolidated into one. She based her request on a narrow factual point, contending
there’s one embezzlement charge which covers the longer period
of time as opposed to two, even though there may be two bank
accounts. It’s Mr. and Mrs. deBarros’s joint money and they
testified they lived in that way and I would ask the Court to
consolidate the embezzlement and have just one embezzlement
charge . . . .
The prosecutor replied by pointing out “there are two separate sets of facts here for the
embezzlement” ⎯ one was the farm account listing both deBarroses as account owners, the
other was Arlette deBarros’s personal account listing her as the sole owner.1 Kingsley rejoined:
“Well, if I’m not mistaken, I believe both names are on that account . . . .” Stating that Patrick
deBarros was “not on that account,” the trial court overruled the motion. Kingsley renewed the
motion after the presentation of the defense evidence. The trial court again held: “I’ll overrule.
I think they’re separate accounts.”
In closing arguments, the prosecutor discussed how Kingsley, while working for
Edgemont Farm, would often use cash to purchase personal products, spending upwards of $800
to $900 at a time. Referring to the testimony of a local clothier’s employee who frequently dealt
with Kingsley between 1994 and 2000, the prosecutor discussed Kingsley’s normal practice of
making large personal purchases with cash: “The manner of doing it was to find out how much
all her purchases totaled, eight or nine hundred ($900) at a whack, and then she’d go to the bank
and get cash.” Kingsley objected: “Objection, Your Honor. She --- objection. Ms. Harry said
1
Kingsley also had signature power over two other checking accounts: one listing Patrick
deBarros and Kingsley, the second listing only Arlette deBarros.
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she didn’t know whether that was before ’98 or not.” The trial court overruled the objection,
characterizing the prosecutor’s statement as mere “argument.”
As the prosecutor continued this line of argument, Kingsley again objected: “Objection,
Your Honor. They didn’t say only. They did not say that.” The court overruled the renewed
objection and stated: “The jury can recall. Argument is not evidence. The jury can recall what
the evidence was.” This brief cautionary instruction tracked a more elaborate instruction given
to the jury at the start of the trial in which the court instructed the jury: “Final arguments are not
evidence. Final arguments are simply an attempt to tell you, the jury, what facts you should find
and how the facts should be applied to the law or the instructions that the Court has given you.
Your job in this case is to determine the facts.” At no point did Kingsley move the court for a
mistrial or ask the court for any additional cautionary instructions.
The jury found Kingsley guilty on both counts of embezzlement and the count alleging
credit card theft. Accepting the jury’s recommended sentence, the trial court imposed a two and
a half year prison term for each embezzlement charge. The trial court also fined Kingsley for the
credit card theft and ordered her to make restitution.
II.
A. IMPROPER COMMENTS BY PROSECUTOR
Kingsley claims the prosecutor made “several factual misrepresentations” during closing
arguments and the trial court should have given a cautionary instruction directing the jury to
disregard these remarks. Kingsley, however, never requested a cautionary instruction. Nor did
she move for a mistrial. Under settled law, a “timely motion for a mistrial or a cautionary
instruction is required to preserve the issue for appeal even if an objection was properly made to
the conduct or comments and improperly overruled by the trial judge.” Morris v.
Commonwealth, 14 Va. App. 283, 287, 416 S.E.2d 462, 464 (1992) (en banc); see also Schmitt
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v. Commonwealth, 262 Va. 127, 148, 547 S.E.2d 186, 200-01 (2001). “There appears to be no
exception in Virginia law to the strict application of this rule.” Bennett v. Commonwealth, 29
Va. App. 261, 281, 511 S.E.2d 439, 448-49 (1999).2
The trial court twice instructed the jury that closing arguments of counsel could not be
considered evidence, once at the start of the trial and again at the moment of Kingsley’s
objection. This fact alone dissolves any possibility of a miscarriage of justice sufficient to
trigger the ends-of-justice exception to Rule 5A:18. As a result, we do not address Kingsley’s
claim that the trial court erred in failing to sustain her objection and craft a more specific
cautionary instruction sua sponte.
B. SINGLE LARCENY DOCTRINE & EMBEZZLEMENT
Kingsley next argues the trial court erred by not consolidating her two embezzlement
charges into one under the “single larceny doctrine.” The doctrine’s applicability to
embezzlement remains an open question under Virginia law. See Bragg v. Commonwealth, 42
Va. App. 607, 611 n.3, 593 S.E.2d 558, 560 n.3 (2004). Determining whether it applies requires
an analysis of the interplay between the common law antecedents of larceny and the purely
statutory nature of the crime of embezzlement, see generally id.; Bruhn v. Commonwealth, 37
Va. App. 537, 559 S.E.2d 880 (en banc), aff’d, 264 Va. 597, 570 S.E.2d 866 (2002), as well as
an examination of the impact of a recent amendment to the embezzlement statute, see Code
§ 18.2-111 (2003 Va. Acts ch. 733) (“Any person convicted hereunder shall be deemed guilty of
larceny . . . .”).3
2
See also Martinez v. Commonwealth, 241 Va. 557, 559 n.2, 403 S.E.2d 358, 359 n.2
(1991); Taylor v. Commonwealth, 17 Va. App. 271, 274, 437 S.E.2d 202, 204 (1993).
3
According to the single larceny doctrine, “unless the evidence proves that two or more
separate and discrete thefts occurred at separate times which were not part of the same larcenous
impulse, then thefts from the same room are but a single larceny.” Bragg, 42 Va. App. at 611,
593 S.E.2d at 560 (quoting Richardson v. Commonwealth, 25 Va. App. 491, 497, 489 S.E.2d
697, 700 (1997) (en banc)). Used as a unit of prosecution concept for the common law offense
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At trial, however, Kingsley never invoked the “single larceny doctrine” or alerted the trial
court to its alleged applicability to the purely statutory crime of embezzlement. We thus cannot
address it. Under Rule 5A:18, the “same argument must have been raised, with specificity, at
trial before it can be considered on appeal.” Correll v. Commonwealth, 42 Va. App. 311, 324,
591 S.E.2d 712, 719 (2004) (emphasis added). “A general argument or an abstract reference to
the law is not sufficient to preserve an issue.” Edwards v. Commonwealth, 41 Va. App. 752,
760, 589 S.E.2d 444, 448 (2003) (en banc).4
As framed by Kingsley, the only issue before the trial court was whether the two
embezzlement charges should have been consolidated because the thievery came from “joint
money” owned by Patrick and Arlette deBarros. Both counsel and the trial court narrowed this
point further by focusing on the named account owners of the separate accounts. And, on that
subject, the trial judge correctly noted that Kingsley’s factual assertion was partly mistaken. In
fact, Patrick deBarros was not listed as a joint owner on Arlette’s personal account.
of larceny, the “‘overriding principle behind the single larceny doctrine is to prevent the state
from aggregating multiple criminal penalties for a single criminal act.’” Millard v.
Commonwealth, 34 Va. App. 202, 206, 539 S.E.2d 84, 86 (2000) (quoting Richardson, 25
Va. App. at 496, 489 S.E.2d at 700); see also West v. Commonwealth, 125 Va. 747, 754, 99 S.E.
654, 656 (1919) (“But a series of larcenous acts, regardless of the amount and value of the
separate parcels or articles taken, and regardless of the time occupied in the performance, may
and will constitute, in contemplation of law, a single larceny, provided the several acts are done
pursuant to a single impulse and in execution of a general fraudulent scheme.”).
4
See also W. Alexandria Prop., Inc. v. First Va. Mortgage & Real Estate Inv. Trust, 221
Va. 134, 138, 267 S.E.2d 149, 151 (1980) (“On appeal, though taking the same general position
as in the trial court, an appellant may not rely on reasons which could have been but were not
raised for the benefit of the lower court.”); Floyd v. Commonwealth, 219 Va. 575, 584, 249
S.E.2d 171, 176 (1978) (holding that appellate courts will not consider an argument that differs
from the specific argument presented to the trial court, even if it relates to the same general
issue); Shenk v. Shenk, 39 Va. App. 161, 169, 571 S.E.2d 896, 900 (2002) (ruling that the
“specific argument” made on appeal must have been made below).
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In any event, we fail to see how the “joint money” allegation, by itself, would require
consolidation given the unique facts of this case. Kingsley wrote 109 checks to cash from four
separate accounts, cashed checks drawn by others payable to Patrick deBarros, and helped
herself to three weeks of unauthorized vacation pay as she walked off the job. She made many
of these misappropriations at different times, from different sources, over a period of more than
two years. Other than relying on the single larceny doctrine, Kingsley cites to us no legal
authority for defining the unit of prosecution inherent in the embezzlement statute so narrowly as
to require ⎯ much less permit, see Code § 19.2-223 (authorizing consolidation for a period not
exceeding six months) ⎯ the consolidation of these diverse acts of theft into a single indictment.
We thus hold the trial court did not err by denying Kingsley’s consolidation motion.
C. CREDIT CARD CONVICTION
Kingsley challenges her credit card conviction, claiming that the evidence proved she
obtained the cards lawfully. It follows, Kingsley argues, that she could not unlawfully steal
credit cards that she had permission to possess. We agree with her abstract legal premise, but
disagree with the factual predicate underlying it.
Under Code § 18.2-192(1)(a), theft of a credit card occurs when an individual “takes,
obtains or withholds a credit card or credit card number from the person, possession, custody or
control of another without the cardholder’s consent.” See generally Scott v. Commonwealth, 36
Va. App. 276, 281-82, 549 S.E.2d 624, 626-27 (2001). Unlike common law larceny, which
requires “proof of an intent to permanently deprive,” Code § 18.2-192 mandates only
deprivation, regardless of length, coupled with “an intention to use, sell, or transfer.” Scott, 36
Va. App. at 282, 549 S.E.2d at 626-27. The offense involves an “improper acquisition,
possession, and distribution of credit cards,” not a “subsequent misuse” of a lawfully possessed
card. Sykes v. Commonwealth, 27 Va. App. 77, 81, 497 S.E.2d 511, 513 (1998).
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Though Kingsley claims her initial possession of the credit cards in this case was lawful,
the evidence proved she retained cards after being expressly directed to cancel the account. She
then used the recently renewed cards for the purpose of making unauthorized purchases. These
acts prove more than a mere misuse of lawfully possessed credit cards. The evidence shows
instead that Kingsley retained the renewed cards with the intent to use them for her personal
benefit. That Kingsley denied all this, of course, changes nothing. The jury was at liberty to
disbelieve her and to treat her “self-serving explanation as a mere effort at lying to conceal her
guilt.” Dugger v. Commonwealth, 40 Va. App. 586, 594 n.2, 580 S.E.2d 477, 481 n.2 (2003)
(quoting Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907 (2001))
(internal quotation marks omitted).5
D. EMBEZZLEMENT CONVICTIONS
Finally, Kingsley challenges the sufficiency of the evidence supporting her two
embezzlement convictions. Under Rule 5A:18, however, a defendant waives a sufficiency
objection “when he fails to renew his motion to strike the evidence after presenting his case,”
White v. Commonwealth, 3 Va. App. 231, 234, 348 S.E.2d 866, 868 (1986); see also McGee v.
Commonwealth, 4 Va. App. 317, 321, 357 S.E.2d 738, 739 (1987), and thereafter fails to raise
the issue in a motion to set aside the verdict, Brown v. Commonwealth, 8 Va. App. 474, 480, 382
S.E.2d 296, 300 (1989); see also McQuinn v. Commonwealth, 20 Va. App. 753, 757, 460 S.E.2d
624, 626 (1995) (en banc). Kingsley made neither motion.
Conceding the applicability of Rule 5A:18, Kingsley claims we should reverse under the
ends-of-justice exception to the procedural default rule. We reserve this exception for
5
See also Dowden v. Commonwealth, 260 Va. 459, 469, 536 S.E.2d 437, 442 (2000);
Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981); Mughrabi v.
Commonwealth, 38 Va. App. 538, 548, 567 S.E.2d 542, 546 (2002); Morrison v.
Commonwealth, 37 Va. App. 273, 284, 557 S.E.2d 724, 730 (2002).
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“extraordinary situations” where the defendant can prove a clear, substantial, and material
miscarriage of justice. Bazemore v. Commonwealth, 42 Va. App. 203, 218-19, 590 S.E.2d 602,
609-10 (2004) (en banc) (citations omitted). “The record ‘must affirmatively show that a
miscarriage of justice has occurred, not that a miscarriage might have occurred.’” Copeland v.
Commonwealth, 42 Va. App. 424, 442, 592 S.E.2d 391, 399 (2004) (citations omitted); see also
Michaels v. Commonwealth, 32 Va. App. 601, 608, 529 S.E.2d 822, 826 (2000) (observing that
defendant must show “she was convicted for conduct that was not a criminal offense” or that “an
element of the offense did not occur”).
Kingsley’s ends-of-justice argument for avoiding waiver of her sufficiency challenge is,
simply put, that she has a valid sufficiency challenge. Under this tautological construct, to find
no waiver we would have to rule the sufficiency challenge invalid on the merits ⎯ which would
make the presence or absence of a Rule 5A:18 waiver entirely superfluous, since waiving a
losing argument is no better or worse than losing it outright. As we recently explained:
Otherwise, we would be required under the ends of justice
exception to address the merits of every case where a defendant
has failed to move to strike the Commonwealth’s evidence as
being insufficient to prove an element of the offense. Such a rule
would obviate the requirement for making an adequate motion to
strike or a contemporaneous objection that the evidence was
insufficient.
Copeland, 42 Va. App. at 442, 592 S.E.2d at 400 (quoting Redman v. Commonwealth, 25
Va. App. 215, 221, 487 S.E.2d 269, 272 (1997)).
In short, Kingsley cannot avoid Rule 5A:18 merely by casting doubt on her guilt. She
must instead affirmatively prove her innocence. Neither her argument on appeal nor any
evidence in the record satisfies this precondition for setting aside the uniform application of
appellate default principles. Consequently, we do not address Kingsley’s challenge to the
sufficiency of the evidence supporting her embezzlement convictions.
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III.
Kingsley failed to preserve for appeal her challenge to the prosecutor’s closing
arguments, the trial court’s failure to apply the common law single larceny doctrine, and her
claim that insufficient evidence supports her embezzlement convictions. As to the remaining
arguments on appeal, we find no merit in Kingsley’s contention that the two embezzlement
charges should have been consolidated or that the credit card theft count should have been
dismissed as a matter of law. For these reasons, we affirm the trial court’s judgment.
Affirmed.
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