Nestle v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia

GRETA MARY NESTLE
OPINION
v. Record No. 2439-94-2 BY JUDGE JOSEPH E. BAKER
APRIL 30, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY
Thomas V. Warren, Judge
Joseph D. Morrissey (Morrissey, Hershner &
Jacobs, on brief), for appellant.

Steven A. Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.

Greta Mary Nestle (appellant) appeals from a judgment of the

Circuit Court of Nottoway County (trial court) that approved her

jury conviction of embezzlement in violation of Code § 18.2-111.

Appellant contends that the evidence is insufficient to support

her conviction; that the trial court erred when it refused to

grant an instruction of petit larceny; that the trial court erred

in admitting evidence relating to money or securities recovered

before the provisions of Code § 19.2-270.2 were complied with;

and erred concerning the admission of evidence and instruction to

the jury concerning pastoral privilege.

Upon familiar principles, we state the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom. Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
 The indictment, pursuant to which appellant was convicted,

charged that during 1983, in violation of Code § 18.2-111,

appellant wrongfully and fraudulently embezzled money having a

value of $200 or more by virtue of her employment with Nottoway

County High School (NHS).

On March 1, 1993, appellant became employed as a bookkeeper

at NHS. Problems appeared concerning the books and bank

deposits. On October 22, 1993, Patricia Harris (Harris), NHS

principal, discussed with Dr. James Blevins (Blevins), the

Superintendent of Nottoway County Schools, the problem areas she

had observed. They discussed the fact that appellant previously

had been charged with writing a bad check and decided to order an

internal audit. The audit was conducted on October 25, 1993, and

the auditor reported several "substantial irregularities in the

accounts."
On the evening of October 26, Blevins left a letter

concerning the audit under Harris' door. When Harris arrived at

the office on October 27, she found the letter open and placed on

her desk. Appellant admitted opening the letter but said she had

not read it. On occasion, appellant would open envelopes

containing Harris' mail, but would not remove the contents.

The letter listed seventeen questions that needed to be

answered. Harris testified to three in particular. First,

appellant had written a check to herself for $250 on the first

day of school and it was never redeposited. The purpose of the

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$250 check was to have one-dollar and five-dollar bills available

to give change for book fees on the first day of school. Second,

$822.50 of football game receipts, for which appellant was

responsible, had not been deposited into the bank. Third, a

deposit slip for $1,086 had been stapled to the fund ledger

account but no deposit had been made.

On the morning of October 27, Harris and appellant met to

discuss the letter. When Harris mentioned the missing $250,

appellant stated "I've got that right here" and pulled the money

out of a filing cabinet. Harris testified that the $250 was not

in the filing cabinet on October 25 when she and the auditor went

through the files. Appellant also produced the deposit for the

$822.50 in football game receipts. Harris stated that appellant

claimed to have deposited the $1,086, but when appellant was

confronted with evidence that no deposit had been made, she

produced the funds later that day.
On October 29, Blevins ordered an external audit.

On or about November 9 through 12, 1993, appellant took a

week's leave to go to Charlottesville, where her child was in the

hospital. The external audit was conducted during that time.

After reviewing the audit report, Harris and Blevins drove to

Charlottesville to meet with appellant. At the meeting,

appellant resigned from her position and agreed to meet with

Blevins on Monday, November 15, at 9:00 a.m. to discuss the

discrepancies. Appellant failed to keep the appointment.

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 On Tuesday, November 16, appellant's pastor, Reverend Zolton

Phillips, III (the pastor), called Blevins to say that he had

found a bag of checks and money belonging to NHS in his car.

Blevins retrieved the bag from the pastor. An inventory of the

contents of the bag revealed that it contained 438 checks, made

payable to "Nottoway High School," totalling over $14,000 and

cash in the amount of $1,300.10.

Relevant to this appeal was NHS check 411, dated August 20,

1993, payable to appellant in the sum of $2,150. Using a check

writer, appellant prepared the check and presented it to Harris

for her signature. Harris signed the check and returned it to

appellant. On August 23, 1993, appellant deposited that check

into her personal bank account. Appellant's deposit slip

indicated $215 as the amount deposited, rather than the $2,150

actually deposited.
Appellant testified that check 411 was supposed to be a

reimbursement check in the amount of $21.50 and that she "set"

the check writing machine to reimburse herself for that amount

but it malfunctioned, as she claimed it had on another occasion.

Sufficiency

At the time appellant deposited the $2,150 check into her

account, the balance in that account was $122.45. Between August

23 and August 27, 1993, she made no other deposits, yet she

withdrew cash in the total sum of $485. In addition to the cash

withdrawals during the four-day period, checks issued by

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appellant in the sum of $709.67 cleared her account. Excluding

the $2,150, those sums totaled more than her balance even if the

alleged $215 deposit was added to the $122.45. It is clear that

appellant intended to and did convert the $2,150 to her own use.

To establish the statutory crime of embezzlement, the

Commonwealth must 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). The intent to deprive the owner

can be inferred from all the facts and circumstances of the case.

Chiang v. Commonwealth, 6 Va. App. 13, 17, 365 S.E.2d 778, 780

(1988). The evidence contained in this record clearly proved

beyond a reasonable doubt appellant's guilt of the crime of

embezzlement.

Petit Larceny Instruction

Appellant further argues that the trial court erroneously

refused a petit larceny instruction because the jury could have

concluded that appellant only intended to steal $193.50. This

argument is based upon appellant incorrectly listing $215 as the

deposit amount. Appellant asserts that because she was owed

$21.50, deducting that sum left only a balance of $193.50 as the

sum stolen, an amount less than the amount necessary to support a

felony charge.

Appellant's argument is without merit. The amount of

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withdrawals and checks drawn on her account disclose only an

intent to steal a larger amount. The trial court did not err

when it refused to grant the petit larceny instruction requested

by appellant.

Code § 19.2-270.2

Exhibit 17, introduced into evidence over appellant's

objection, disclosed that 438 checks and some cash had been

discovered in the backseat of a car owned by the pastor of a

church of which both appellant and Blevins were members. The

pastor turned those items over to Blevins, who caused them to be

photocopied. The copies remained with the sheriff and the checks

and cash were deposited to the NHS account.
Code § 19.2-270.2 permits the police authorities to retain

monies and securities pending trial or appeal, or to release the

items when good cause is shown and does not involve the

admissibility of the items as evidence. The statute had no

application to the introduction into evidence of the money and

checks, or copies thereof. Accordingly the trial court did not

erroneously admit Exhibit 17 into evidence.
Pastoral Privilege

Appellant contends that the trial court erred when, in the

presence of the jury, the prosecutor asked appellant on

cross-examination whether she knew Reverend Zolton Phillips and

had been counseled by him as her pastor. That inquiry was made

only after appellant testified on her own behalf that she had not

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stolen any money from NHS. After responding in the affirmative,

appellant objected to further questions concerning that

relationship. Out of the presence of the jury, appellant

successfully prevailed on the trial court to bar any further

pastoral-related questions because she was "exercising" her

"Priest Penitent Privilege." After sustaining appellant's

objection, the trial court instructed the jury as follows:
THE COURT: All right, ladies and
gentlemen, while you were out the Court heard
matters regarding conversations with [the
pastor] while she was counseling with him.
The evidence is he was at that time her
pastor, thereby creating a Pastor Penitent
relationship that all of Virginia recognizes
a privilege that one has when counseling with
her pastor or priest. And it allows the
person the privilege that he or she may
exercise as to any conversation, anything
that was said by or to the priest during that
relationship. The defendant has exercised
her right of privilege, and, therefore, there
will be no further inquiry in the
conversations with [the pastor] during that
relationship.

That instruction did not accurately state the law in Virginia.

Code § 19.2-271.3 states:
Communications between ministers of religion
and persons they counsel or advise.--No
regular minister, priest, rabbi or accredited
practitioner over the age of eighteen years,
of any religious organization or denomination
usually referred to as a church, shall be
required in giving testimony as a witness in
any criminal action to disclose any
information communicated to him by the
accused in a confidential manner, properly
entrusted to him in his professional capacity
and necessary to enable him to discharge the
functions of his office according to the
usual course of his practice or discipline,

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 where such person so communicating such
information about himself or another is
seeking spiritual counsel and advice relative
to and growing out of the information so
imparted.

We hold that under Virginia law, the priest-penitent

privilege belongs to the clergyman, not the layman. Our

conclusion is guided by Seidman v. Fishburne-Hudgins Educ.

Found., Inc., 724 F.2d 413 (4th Cir. 1984), in which the United

States Court of Appeals for the Fourth Circuit decided the

identical issue, as it relates to the priest-penitent privilege

for civil cases. In Seidman, the defendant contended that the

confidential communications made to her priest enjoyed the

protection of the priest-penitent privilege. The Court analyzed

Code § 8.01-400, which is the civil counterpart to Code

§ 19.2-271.3, and which utilizes the same operative language

found in Code § 19.2-271.3. The Court held that while most

priest-penitent statutes "explicitly prohibit the clergyman from

disclosing the contents of a confidential communication without

the consent of the person making the communication," the language

in Virginia's civil priest-penitent privilege statute "plainly

invests the priest with the privilege and leaves it to his

conscience to decide when disclosure is appropriate." Id. at

415, 416 (quotation omitted). The Court buttressed its

conclusion by contrasting Code § 8.01-400's statutory language

with other code sections, such as Code § 8.01-399

(physician-patient privilege) and Code § 8.01-400.2

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(psychologist-client privilege). According to those provisions,

the communicant must request or consent to the elicitation of the

privileged testimony. Id. at 416 n.2.

The privilege granted to confessors 1 appears to have been

established by the Roman Catholic Church as early as the Fifth

Century. See The Code of Canon Law in English Translation,

Canons 983, 984 (Collins, Trans. 1983). While the common law

history of the priest-penitent privilege is less than clear, most

scholars agree that pre-Reformation England, out of respect for

the Catholic church and the Seal of Confession, recognized a

privilege protecting communications made to a confessor. With

the advent of the Reformation and the rise of the Anglican Church

in England, however, the privilege was greatly abrogated, if not

completely abolished. Blackstone makes no mention of the

privilege in his famed commentaries on the common law, and the

case law, what little there is, appears unanimous in denying the

privilege. Thus, most scholars conclude that the priest-penitent

privilege is not a part of England's common law legacy. In fact,

a privilege protecting confessional communications is not

recognized in England today.

The priest-penitent privilege has fared much better in the

1
Confessor. A priest who receives auricular confessions of
sins from persons under his spiritual charge, and pronounces
absolution upon them. The secrets of the confessional were not
privileged communications at common law, but are so classified by
statute, court decision or court rule in most states. Black's
Law Dictionary, 297 (6th ed. 1990).

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United States. The privilege was first recognized in the United

States in 1813. See People v. Phillips, (N.Y. Ct. Gen. Sess.

1813) (abstracted in 1 W.L.J. 109, 112-13 (1843)). In Phillips,

the defendant had been charged with trafficking in stolen goods.

Prior to trial, Phillips confessed the offenses to his Catholic

priest and gave him the stolen property so that it might be

returned. When called upon at trial, the priest would not

testify, refusing to violate the canons of his church. The

court, relying upon the priest's freedom of religion as

guaranteed by New York's constitution, held that he, in fact,

could not be forced to reveal that which he had heard during the

administration of the sacrament of Penance.
Four years later, in 1817, a New York court denied the

privilege to a Protestant minister who refused to testify

regarding confessions made to him by the defendant. See People

v. Smith, 2 N.Y. City Hall Rec. 77 (1817). The court,

distinguishing its case from Phillips, noted that the clergy in

Phillips had been a Roman Catholic priest, bound by the rules of
the Catholic church, while the clergy before it was Protestant

and, as such, not bound by the seal of the confessional.

In 1828, partly in response to Smith, the New York

legislature became the first state to enact a statute providing a

privilege to confessional communications made to clergy. The

statute read:
No minister of the gospel, or priest of any
denomination whatsoever, shall be allowed to
disclose any confessions made to him in his

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 professional character, in the course of
discipline enjoined by the rules or practice
of such denomination.

N.Y. Rev. Stat. § 72, pt. 3, ch. VII, tit. III, art. 8 (1828).

Currently, all fifty states have a statute recognizing some

form of the priest-penitent privilege. Virginia first enacted a

statute granting the privilege in civil trials in 1962 (Code

§ 8.01-400, enacted as § 8-289.2) and further enacted Code

§ 19.2-271.3 in 1985, granting the privilege in criminal trials.
As stated earlier, Code § 19.2-271.3 does not give the

privilege to the accused. See generally O'Dell v. Commonwealth,

234 Va. 672, 704, 364 S.E.2d 491, 509, cert. denied, 488 U.S. 871

(1988). Because the privilege does not extend to the layman, the

trial court erred by extending the pastoral privilege to

appellant. That error, however, favored appellant, not the

Commonwealth, because appellant was not required to disclose her

communication to her pastor.

Unless by her actions appellant waived her Fifth Amendment

right against self-incrimination, that remedy would be available

to her to prevent the prosecutor from requiring her to reveal the

contents of her pastoral counseling. Here, however, appellant

testified on her own behalf and denied that she had stolen any

money belonging to NHS. Appellant cannot testify on her own

behalf and also claim the right to be free from cross-examination

on matters raised by her own testimony on direct examination.
See Brown v. United States, 356 U.S. 148, 154-56 (1958). Because

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Code § 19.2-271.3 grants no privilege to a criminal defendant,

the error committed by the trial court in excluding evidence

favored appellant and, therefore, was harmless.

For the reasons stated, the judgment of the trial court is

affirmed.

Affirmed.

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