COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia
ALAN MICHAEL JACKSON
MEMORANDUM OPINION * BY
v. Record No. 1552-95-2 JUDGE SAM W. COLEMAN III
DECEMBER 31, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
Paul W. Cella for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
The defendant was convicted of embezzlement and he appeals
that conviction. Addressing the issues he raises on appeal, we
hold that Powhatan County was a proper venue and we find that the
evidence was sufficient to prove the defendant's intent to
embezzle. Accordingly, we affirm the conviction.
On appeal, we view the evidence in the light most favorable
to the Commonwealth and accord it all reasonable inferences
fairly deducible therefrom. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Carole Williams placed a newspaper ad offering to sell her
computer and monitor for $850. As a result, the appellant
contacted her and offered to sell the computer on consignment.
Ms. Williams testified that the appellant came to her house in
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Powhatan County to see the computer and "asked me if instead of
paying him a percentage to sell the computer, if I would give him
sixty days to sell it, he would pay me my full asking price,
which was $850.00."
While at Williams' home, the appellant gave her a business
card on which was printed his company name, Soft Touch Computers,
and a telephone number but no address. The appellant also
presented a written consignment contract, which Williams signed,
that also showed the company name and telephone number but no
address. The appellant showed Williams a business license which
she testified "looked official." On cross-examination, the
appellant explained that he did not put his address on the
business card or the contract because he "worked out of" his
apartment and the lease was not in his name.
Williams agreed to consign her computer to the appellant for
sale. She signed the "consignment contract" that provided for a
term of sixty days ending on August 13, 1994 for the appellant to
sell the computer. The appellant took the computer with him.
At trial, the appellant testified that he put the computer
in a storage area which he shared with a friend, Calvin Clark.
The appellant testified that the computer was stolen from the
storage area, evidently by Clark, who promised to pay appellant
for the computer provided that appellant would not call the
police. The appellant did not call the police nor did he inform
Williams of his claim that her computer had been stolen.
- 2 -
When Williams tried to contact the appellant after the sixty
day consignment, his phone had been disconnected. She could not
find an address for him or alternative phone number. The
appellant did not return the computer to Williams or pay her
$850, nor did he contact her. At trial, the appellant explained
that he did not contact Williams because due to "the
circumstances with Henrico County, traffic violations, I fled
from Henrico County to evade going to Court to Roanoke City.
Basically, I left everything behind." He also testified that he
thought his friend, Calvin Clark, would pay him for the computer
so he could pay Ms. Williams and that when he did not get the
money, he was "embarrassed."
Hearing the case without a jury, the trial judge found the
appellant's testimony to be not credible. The trial judge found
appellant guilty of embezzlement and sentenced him to twelve
months in jail. On appeal, the decision of a trial court sitting
without a jury will not be reversed unless it is plainly wrong or
without evidence to support it. Bright v. Commonwealth, 4 Va.
App. 248, 250-51, 356 S.E.2d 443, 444 (1987).
I. VENUE
In order for Powhatan County to be a proper place to
prosecute an embezzlement charge, the Commonwealth must prove,
either by direct or circumstantial evidence, that the offense was
committed within that jurisdiction. Pollard v. Commonwealth, 220
Va. 723, 725, 261 S.E.2d 328, 330 (1980). Code § 19.2-245 states
- 3 -
in pertinent part, "if any person shall commit embezzlement
within this Commonwealth he shall be liable as aforesaid or to
prosecution and punishment for his offense in the county or city
in which he was legally obligated to deliver the embezzled funds
or property." In Stegall v. Commonwealth, 208 Va. 719, 722, 160
S.E.2d 566, 568 (1968), the Virginia Supreme Court held that a
car rental agreement providing that the car be returned to
Lynchburg was a legal obligation to deliver the property to
Lynchburg and failure to return the car to that location
constituted an offense in Lynchburg. Thus, Lynchburg was a
proper venue. Id. at 723, 160 S.E.2d at 569.
The fact that the consignment contract was silent as to
where the computer was to be returned did not mean that there was
no venue in which the appellant could be prosecuted for
embezzlement. Appellant was legally obligated to return the
computer to Williams in Powhatan County. The fact that he would
have been legally obligated to return the computer to her
wherever she was does not defeat Powhatan County as a proper
venue. Furthermore, the consignment contract was executed in
Powhatan County. The contract was for a period of sixty days.
At the end of sixty days, the appellant had the legal duty to
either return the computer to her or pay Williams $850.
Accordingly, Powhatan County was a proper venue in which to
prosecute the charge.
II. SUFFICIENCY OF THE EVIDENCE
- 4 -
To establish the statutory crime of embezzlement, the
Commonwealth must prove beyond a reasonable doubt that the
accused, for his own use or benefit, wrongfully appropriated
property entrusted to him with the intent to deprive the owner
thereof. Nestle v. Commonwealth, 22 Va. App. 336, 341, 470
S.E.2d 133, 136 (1996); Waymack v. Commonwealth, 4 Va. App. 547,
549, 358 S.E.2d 765, 766 (1987); Code § 18.2-111. A defendant
wrongfully appropriates the property of another whenever he
exercises dominion and control over the property in a manner
inconsistent with the owner's rights. Evans & Smith v.
Commonwealth, 226 Va. 292, 298, 308 S.E.2d 126, 129 (1983);
Stegall, 208 Va. at 722, 160 S.E.2d at 568. The Commonwealth was
required to prove that the appellant had the intent to deprive
Williams of her computer.
The intent to commit a crime "may be, and often must be,
shown by circumstantial evidence." Whitley v. Commonwealth, 223
Va. 66, 73, 286 S.E.2d 162, 166, cert. denied, 459 U.S. 882, 103
S. Ct. 181, 74 L. Ed. 2d 148 (1982). The intent to embezzle can
be inferred from all the facts and circumstances of the case,
Stegall, 208 Va. at 723, 160 S.E.2d at 569, or from the accused's
conduct and representations. Zoretic v. Commonwealth, 13 Va.
App. 241, 244, 409 S.E.2d 832, 834 (1991).
While proof that property entrusted to the
possession of the accused has been
misappropriated is not enough, standing
alone, to prove that the accused was the
embezzler, where, as here, there is
additional evidence, sufficient to show that
the accused acted with the requisite criminal
- 5 -
intent and that his conduct was designed to
conceal his criminal purpose, we will uphold
a finding that the accused was the criminal
agent.
Smith v. Commonwealth, 222 Va. 646, 652, 283 S.E.2d 209, 212
(1981); see also Webb v. Commonwealth, 204 Va. 24, 35, 129 S.E.2d
22, 30 (1963); Zoretic, 13 Va. App. at 243, 409 S.E.2d at 834;
Waymack, 4 Va. App. at 549, 358 S.E.2d at 766.
Williams entrusted her computer to the appellant for sixty
days under the consignment contract. At the end of sixty days,
the appellant did not return the computer, he did not pay
Williams for the computer, and he did not contact Williams about
her computer. The appellant did not give Williams an address
where he could be reached. When Williams tried to contact the
appellant, the phone number he gave her had been disconnected.
"[F]ailure to perform an absolute duty to return the
property or refusal to account or pay over on demand constitutes
embezzlement, or is, at least, evidence from which a fraudulent
conversion may be inferred." Stegall, 208 Va. at 721-22, 160
S.E.2d at 568 (quoting 29A C.J.S. Embezzlement § 11). As in the
Stegall case, the consignment contract imposed upon appellant the
duty to pay for the computer or return it at the stipulated time.
The contract implicitly required that, if the appellant failed
to sell the computer within sixty days, he was to return the
computer to Williams or pay her $850. The appellant's failure to
return the computer to Williams, his failure to pay Williams for
- 6 -
the computer, his failure to contact Williams after the sixty
days elapsed, and his failure to provide Williams with an address
or telephone number where he could be reached constitute
sufficient evidence from which the trial judge could infer that
the appellant wrongfully intended to appropriate the computer to
his own use or benefit.
As to the appellant's claim that Williams' computer had been
stolen from him, the trial court was entitled to find that the
explanation was not credible. Id. at 722-23, 160 S.E.2d at
568-69. Although the testimony was uncontradicted, evidence "may
be disbelieved where it is inherently improbable, inconsistent
with circumstances in evidence, or somewhat contradictory in
itself, especially where the witness is a party or is
interested." Id. at 722, 160 S.E.2d at 568. Trial courts are
given wide discretion to determine the credibility of witnesses
and their testimony. Id.
The appellant did not report to the authorities or to
Williams that the computer had been stolen. The fact that the
appellant obtained the computer and left no means by which he
could be reached, and that he failed to contact Williams after
the sixty days had elapsed to either return the computer, pay for
it, or account for its whereabouts, supports the trial judge's
finding that appellant intended to convert the computer to his
own use and benefit.
The appellant contends that his case is indistinguishable
- 7 -
from and controlled by Zoretic v. Commonwealth. He claims that,
as with Zoretic, his direct testimony that the computer had been
stolen is more plausible, or at least equally plausible, to the
Commonwealth's circumstantial evidence that he converted it to
his own use. Thus, he argues, the theory that the computer was
stolen from him and that he was not guilty of embezzlement is a
reasonable hypothesis of innocence which the Commonwealth's
circumstantial evidence fails to exclude.
The appellant's reliance on Zoretic is misplaced. In that
case, the defendant was given money by an undercover police
officer and asked to purchase drugs. Zoretic, 13 Va. App. at
242-43, 409 S.E.2d at 833. After accepting the money, the
defendant was seen meeting with a known drug dealer. The
defendant reported to the officer that he had given the money to
the drug dealer and that the drug dealer was to obtain the drugs.
Id. at 243, 409 S.E.2d at 833. The defendant "repeatedly
acknowledged the debt" to the officer and remained in contact
with the officer. Id. at 244, 409 S.E.2d at 834. This Court
found that the Commonwealth's evidence proved that the defendant
met with the drug dealer intending to give him money in exchange
for drugs, and therefore, the evidence did not exclude the
reasonable hypothesis that the defendant gave the money to the
dealer in order to fulfill his agreement with the police officer
and that the dealer stole the money. Id. at 244, 409 S.E.2d at
834. In Zoretic, the circumstantial evidence equally supported
- 8 -
the inference that Zoretic gave the money to the drug dealer as
it did the conclusion that Zoretic kept the money.
In contrast to Zoretic, the Commonwealth's evidence proved
that the appellant took Williams' computer and failed to return
it as required by the contract. From that evidence the fact
finder could not infer that the computer had been lost, stolen,
or destroyed. From that evidence, without more, the fact finder
could only infer that the consignee converted the property to his
own use and benefit. Thus, no hypothesis consistent with
innocence flows from the Commonwealth's evidence.
When the appellant testified and provided an hypothesis of
innocence, the fact finder was entitled to reject that
explanation if there are reasons to find it not credible. The
appellant's actions were not consistent with a claim that the
computer was stolen. No one saw the appellant place the computer
in the storage area. The appellant did not report the alleged
crime to the authorities or to Williams. The evidence showed
that his phone was disconnected and that he left the area. The
appellant maintained no business records and provided no
identifiable address. The appellant's failure to return the
computer, combined with the surrounding circumstances, furnishes
sufficient evidence to support the trial court's conclusion that
the appellant had the intent to wrongfully appropriate the
computer to his own use or benefit. Therefore, because the fact
finder could reject the appellant's claim that the computer had
- 9 -
been stolen, the evidence excludes the appellant's theory of
innocence.
Thus, we hold that venue was proper in Powhatan County and
find that the evidence was sufficient to support the embezzlement
conviction. Accordingly, we affirm the trial court's decision.
Affirmed.
- 10 -