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PURIFOY v. COMMONWEALTH


PURIFOY v. COMMONWEALTH

(unpublished)


APRIL 27, 1999

Record No. 0374-98-2

PAULA HARDY PURIFOY

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF LUNENBURG COUNTY

Charles L. McCormick, III, Judge

Present: Judges Elder, Bray and Senior Judge
Baker

Argued at Richmond, Virginia

MEMORANDUM OPINION[1] BY JUDGE JOSEPH E. BAKER

Buddy A. Ward, Public Defender (Office of the
Public Defender, on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on brief), for
appellee.


Paula Hardy Purifoy (appellant) appeals from
her bench trial conviction by the Circuit Court of Lunenburg
County (trial court) for a single count of embezzlement, in
violation of Code Sect. 18.2-111, pursuant to an indictment
which charged that she "feloniously, wrongfully and
fraudulently embezzled money having a value of $200 or more which
she received for another, namely ABC Distributing, Inc.,"
and which was entrusted to her by her co-workers. Appellant
contends that the trial court erroneously admitted into evidence
a bill for payment for merchandise (the ABC bill) sent by ABC to
Victoria Elementary School; that the evidence did not prove that
appellant embezzled money entrusted to her by her co-workers to
be used to pay the ABC bill; and that the evidence failed to
prove appellant embezzled monies of a value in excess of $200.

As the parties are fully conversant with the
facts contained in the record before this Court and because this
memorandum opinion carries no precedential value, no recitation
of the facts is necessary.

The trial court did not abuse its discretion in
admitting the ABC bill into evidence at trial. See, e.g.,
Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838,
842 (1988).

First, the circumstantial evidence, viewed in
the light most favorable to the Commonwealth, see Martin
v. Commonwealth
, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987), satisfactorily established the authenticity of the bill
under the reply doctrine. See Kitze v. Commonwealth,
15 Va. App. 254, 263, 422 S.E.2d 601, 607 (1992), rev’d on
other grounds
, 246 Va. 283, 435 S.E.2d 583 (1993); Jewell
v. Commonwealth
, 8 Va. App. 353, 357, 382 S.E.2d 259, 262
(1989) (holding that "circumstantial evidence showing both
the defendant’s return address and the responsiveness of the
defendant’s letter to contents of the girl’s letter sufficiently
established that the defendant sent the letter to the
girl"). The bill was properly admitted under the reply
doctrine because the bill showed it came from ABC Distributing,
and the circumstantial evidence proved multiple exchanges between
ABC and the school.

The evidence established the procedures that
were followed to place and pay for ABC orders, and the school’s
secretary/bookkeeper testified that she passed all ABC
correspondence on to appellant during the time appellant was
coordinating ABC orders and then to Liles, to whom appellant
turned over her ordering duties. Liles received the ABC bill in
question pursuant to this ongoing procedure. When Liles presented
it to appellant, appellant did not challenge the authenticity of
the bill and asserted only that she did not owe the money.
Therefore, the ABC bill was sufficiently authenticated to permit
its admission. See Duncan v. Commonwealth, 2 Va.
App. 717, 727, 347 S.E.2d 539, 545 (1986) (noting that once
"prima facie showing [of authenticity] is made, the writing
or statement comes in, and the ultimate question of authenticity
is left to the [fact finder]").

Second, the bill was admissible under the
adoptive admission exception to the hearsay rule. See, e.g.,
Knick v. Commonwealth, 15 Va. App. 103, 106-07, 421 S.E.2d
479, 481 (1992). The key to determining the applicability of this
exception hinges on whether "’the statement itself
. . . would, if untrue, call for a denial under the
circumstances’" and "’whether a reasonable person would
have denied under the circumstances . . . .’"
Id. at 107, 421 S.E.2d at 481 (quoting E. Cleary, McCormick
on Evidence
Sect. 270, at 800-01 (3d ed. 1984)). Here,
appellant actually gave the bill to Chief Dayton and admitted
that part of the balance owed resulted from her misappropriating
$330 given to her by her co-workers for merchandise purchased
from ABC. Appellant’s affirmative representations and her failure
to deny the implied statements in the bill indicated that she
acquiesced in the bill’s representation that money was due on the
ABC account. Therefore, the bill constituted an adoptive
admission, and the trial court did not abuse its discretion in
admitting the bill into evidence.

The evidence, viewed in the light most
favorable to the Commonwealth, also establishes that appellant
embezzled money belonging to ABC Distributing. Appellant was
indicted for embezzling money "which she received for
another, namely ABC Distributing, Inc., on behalf of [school] employees . . . which monetary funds were entrusted or
delivered to her by the aforesaid victims." Code
Sect. 18.2
- 111 proscribes, inter alia, the wrongful
or fraudulent embezzlement of money "which [s]he shall have
received for another . . . or which shall have
been entrusted or delivered to [her] by another." (Emphasis
added).

Here, the evidence proved that appellant
embezzled money she "received for another," ABC
Distributing. The testimony established that appellant’s
co-workers ordered and received their merchandise before giving
money to appellant. Only after the merchandise had been received
would appellant collect the money and send it to ABC
Distributing. Therefore, in keeping with the indictment, the
evidence proved that appellant embezzled the money she had
received for another, ABC Distributing, which had already
delivered merchandise. The plain meaning of the "received
for another" portion of the statute requires no formal
entrustment or employment relationship. Further, the language in
the indictment regarding "monetary funds [which] were
entrusted or delivered to [appellant]" by school employees
merely describes which funds appellant "received for
another." That the delivery of money to appellant by her
co-workers may also, under certain circumstances, have proved
that she embezzled the money from them does not prevent the
ruling that she embezzled the money from the corporation under
the facts of this case.

Finally, the evidence proves that appellant
embezzled a sum in excess of $200 when she converted the $330 she
had collected for ABC Distributing to her own use. That she
originally obtained smaller sums of money from her co-workers is
not dispositive because the evidence establishes that she
aggregated the money into the larger sum of $330 and embezzled
the entire sum from ABC Distributing at one time. Cf. Jha
v. Commonwealth
, 18 Va. App. 349, 354-55, 444 S.E.2d 258, 261
(1994) (noting that even a series of larcenous acts may be
aggregated to determine value where "the several acts are
done pursuant to a single impulse" (citation omitted)).

Accordingly, the judgment of the trial court is
affirmed.

Affirmed.

 

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.

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