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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