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DARDEN, JR., et al. v. COMMONWEALTH OF VIRGINIA


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DARDEN, JR., et al.

v.

COMMONWEALTH OF VIRGINIA


JULY 17, 2001

No. 2438-00-1

ALVIN T. DARDEN, JR., S/K/A

ALVIN TYRONE DARDEN, JR.

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK

Rodham T. Delk, Jr., Judge

Dwayne B. Strothers (Alexander
P. Smith and Associates, P.C., on brief), for
appellant.

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

appellee.


MEMORANDUM OPINION [1] BY JUDGE LARRY G. ELDER

Alvin Tyrone Darden (appellant) appeals from
his bench trial conviction for embezzlement in violation of Code
? 18.2-111. On appeal, he contends the evidence was
insufficient to prove he acted with the requisite intent. We
disagree and affirm the conviction.

In reviewing the sufficiency of the evidence,
we examine the record in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. See Martin v. Commonwealth, 4
Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a
trial court will be disturbed only if plainly wrong or without
evidence to support it. See id. The credibility of
a witness, the weight accorded the testimony, and the inferences
to be drawn from proven facts are matters to be determined by the
fact finder. See Long v. Commonwealth, 8 Va. App.
194, 199, 379 S.E.2d 473, 476 (1989).

A conviction for embezzlement under Code
? 18.2-111 may be sustained on proof that the accused
"wrongfully and fraudulently use[d], dispose[d] of,
conceal[ed] or embezzle[d] any money . . . [or] check
. . . which he shall have received . . . by
virtue of his . . . employment." Code
? 18.2-111; see Waymack v. Commonwealth, 4
Va. App. 547, 549, 358 S.E.2d 765, 766 (1987). "To establish
the requisite intent, it is not necessary to show that the
defendant wrongfully appropriated the entrusted property to his
or her own personal use or benefit." Chiang v.
Commonwealth
, 6 Va. App. 13, 17, 365 S.E.2d 778, 780-81
(1988). Under the express language of the statute, the
defendant’s "diver[sion of] funds to benefit another
. . . is sufficient to establish the wrongful
appropriation of the property to his or her own use." Id.
at 17, 365 S.E.2d at 781 (emphasis added). The statute also does
not require proof that the accused intended permanently to
deprive the owner of the property. Evans v. Commonwealth,
226 Va. 292, 297, 308 S.E.2d 126, 129 (1983); see Ketchum
v. Commonwealth
, 12 Va. App. 258, 261, 403 S.E.2d 382, 383
(1991). Proof of the "’[u]nauthorized and wrongful exercise
of dominion and control over another’s personal property, to the
exclusion of or inconsistent with [the] rights of the owner"
is sufficient. Evans, 226 Va. at 297, 308 S.E.2d at 129
(quoting Black’s Law Dictionary 300 (5th ed. 1979)).

Embezzlement is punishable as grand larceny if
the value of the property wrongfully appropriated exceeds $200. See
Code ? 18.2-111; see also Code
?? 18.2-95, 18.2-96.

Intent may, and usually must, be proven by
circumstantial evidence, see Servis v. Commonwealth,
6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), such as a
person’s conduct and statements, see Long, 8 Va.
App. at 198, 379 S.E.2d at 476 (1989). Proof of deceitful
conduct, for example, may establish the requisite fraudulent
intent. See Smith v. Commonwealth, 222 Va. 646,
652, 283 S.E.2d 209, 212 (1981) (in case involving disappearance
of arena tickets for wrestling event, noting defendant’s prior
inconsistent statements about his contact with tickets
established untruthfulness and provided evidence of requisite
criminal intent, which, in turn, was relevant to establish that
he was the criminal agent); Waymack, 4 Va. App. at 550,
358 S.E.2d at 766 (in reversing defendant’s conviction, noting
absence of evidence that she attempted to conceal allegedly
criminal activity).

"Circumstantial evidence is as competent
and is entitled to as much weight as direct evidence, provided it
is sufficiently convincing to exclude every reasonable hypothesis
except that of guilt." Coleman v. Commonwealth, 226
Va. 31, 53, 307 S.E.2d 864, 876 (1983). "[T]he Commonwealth
need only exclude reasonable hypotheses of innocence that flow
from the evidence, not those that spring from the imagination of
the defendant." Hamilton v. Commonwealth, 16 Va. App.
751, 755, 433 S.E.2d 27, 29 (1993).

Here, the evidence, viewed in the light most
favorable to the Commonwealth, established that appellant
"wrongfully and fraudulently use[d], dispose[d] of,
conceal[ed] or embezzle[d] any money . . . [or] check
. . . which he shall have received . . . by
virtue of his . . . employment." Code
? 18.2-111. Although the evidence indicated that
appellant’s employer, Lucia Specialized Hauling, had sometimes
allowed employees to treat company travel expense funds as an
advance on their pay under certain circumstances, Dispatcher
Diane Scott testified that she and appellant had been reprimanded
for the previous improper use of company funds and were "on
a little bit of a[] . . . trial, so to speak." As
a result, Scott specifically told appellant that the two company
checks she gave him on June 25, 1999, were "[f]or [the] trip" on which he was about to depart and that he should be
"very careful with [the] money." The trial court, as
the finder of fact, was entitled to credit Scott’s testimony and
to disbelieve appellant’s claim that Scott gave him no such
warning.

Despite Scott’s warning, appellant admitted
that he cashed the second $200 check and gave the proceeds to his
wife before leaving town on his trucking assignment, and the
funds, therefore, were unavailable when his truck required
emergency repairs. When appellant contacted Lucia about his
mechanical difficulties, he lied to Scott and Kary Harrell, the
company’s manager, about what had happened to the check.
Appellant claimed he did so because Scott would have been mad if
she knew he had given the money to his wife, but the trial court
was entitled to reject this testimony and to conclude that
appellant lied about losing the check in an effort to prevent his
employer from learning he had appropriated the funds for his own
use.

Thus, the only reasonable hypothesis flowing
from the evidence, viewed in the light most favorable to the
Commonwealth, was that appellant embezzled at least $200 from his
employer. Appellant’s act of giving the money to his wife
constituted the "wrongful exercise of dominion and control
over" Lucia’s property and was inconsistent with the rights
of the owner because the funds were unavailable for use when
appellant’s truck required emergency repairs.

Zoretic v. Commonwealth, 13 Va. App.
241, 409 S.E.2d 832 (1991), cited by appellant on brief, is
inapposite. In Zoretic, the evidence was insufficient to
establish that the accused was the criminal agent. Id. at
243-44, 409 S.E.2d at 834. Although someone had deprived the
undercover agent of his money, a reasonable hypothesis flowing
from the evidence, viewed in the light most favorable to the
Commonwealth, was that "Zoretic was attempting to fulfill
his agreement [with the undercover officer] to purchase
drugs" and that it was Zoretic’s supplier, McPherson, rather
than Zoretic, who misappropriated the officer’s money. Id.
at 244, 409 S.E.2d at 834. This Court held that Zoretic’s
repeated acknowledgment of his debt to the officer and his
promise to repay him was insufficient to prove either that he was
the criminal agent or that he acted with the requisite intent. Id.

In appellant’s case, in contrast to Zoretic,
the identity of appellant as the person who appropriated the
money was not contested. The only disputed issue was whether
appellant’s actions constituted embezzlement. As detailed above,
the only reasonable hypothesis flowing from the evidence, viewed
in the light most favorable to the Commonwealth, was that
appellant acted with the requisite intent when he diverted the
money for the benefit of a third party, rendering it unavailable
for his employer’s use. Scott specifically warned appellant the
money was to be used for business purposes. Appellant used the
money for a non-business purpose, giving it to his wife before
ever even leaving on his trip. Although he claimed at trial that
he thought the company would simply deduct the amount from his
paycheck, he demonstrated a consciousness of guilt when he lied
to Scott and Harrell about what he had done with the money,
telling them originally that he had lost it.

For these reasons, we hold that the
circumstantial evidence was sufficient to exclude all reasonable
hypotheses of appellant’s innocence, and we affirm appellant’s
conviction.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code
? 17.1-413, this opinion is not designated for publication.

 

 

 

 

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