Home / Uncategorized / HILLSMAN v. COMMONWEATH


NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.




DECEMBER 7, 1999

Record No. 1658-98-4




Present: Judges Elder, Annunziata and Lemons

Argued at Alexandria, Virginia



Marcus D. Williams, Judge

James W. Hundley (Briglia & Hundley, P.C.,
on brief), for appellant.

Jeffrey S. Shapiro, Assistant Attorney General
(Mark L. Earley, Attorney General; Daniel J. Munroe, Assistant
Attorney General, on brief), for appellee.

Patricia D. Hillsman (appellant) appeals from
her bench trial conviction for two counts of embezzling property
valued at more than $200. On appeal, she contends the evidence
was insufficient to prove (1) that she wrongfully converted
property to her own use and (2) that the value of the embezzled
property was greater than $200. We hold the evidence on both
these elements was sufficient to support her convictions, and we

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
CodeSect.18.2-111 requires proof "that the accused
wrongfully appropriated to her use or benefit, with the intent to
permanently deprive the owner thereof, . . . 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); see CodeSect.18.2-111. Embezzlement is punishable
as grand larceny if the value of the property wrongfully
appropriated exceeds $200. See CodeSect.18.2-111; see
also Code ?? 18.2-95, 18.2-96. The value of the
stolen property is measured as of the time of the theft, and the
original purchase price may be admitted as evidence of its
current value. See Dunn v. Commonwealth, 222 Va.
704, 705, 284 S.E.2d 792, 792 (1981).

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 . . . there is additional evidence, sufficient to
show that the accused acted with the requisite criminal 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).

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. "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.
, 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.
, 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 appropriated to her use or benefit, with the
intent to permanently deprive the owner thereof, . . .
property entrusted to her by virtue of her employment or
office." Waymack, 4 Va. App. at 549, 358 S.E.2d at
766. Appellant was responsible for ordering office supplies for
her five-person branch of the Fairfax County Department of
Environmental Management (DEM) and for tracking orders for such
supplies made by the department as a whole. Between March 10 and
May 12, 1997–covered by the indictment alleging embezzlement
between January 1 and May 31, 1997–appellant ordered 299 inkjet
printer cartridges. Between June 10 and August 15, 1997–covered
by the indictment alleging embezzlement between June 1 and
September 30, 1997–appellant ordered 210 inkjet printer
cartridges. The uncontroverted evidence established that these
orders were prepared and placed by appellant and, in all cases
except one, that the cartridges were received by appellant upon
their delivery to her location code, EJ26L. Although office
policy required the authorizing signature of Leora Motley or
Needham Kelly on purchase orders for office supplies, the
uncontroverted evidence established that appellant did not obtain
authorization for any of these orders.

On one occasion, appellant improperly added an
order for sixty printer cartridges to a purchase order already
prepared by Joyce Murphy and authorized by Needham Kelly. She
also altered the delivery location code to have the cartridges
delivered to her rather than to Murphy. On five other occasions,
appellant placed orders in the names of other employees, but all
the orders requested delivery to appellant’s location and were
signed for by appellant, and the employees whose names appeared
on the orders denied requesting or receiving the ordered
cartridges. The only reasonable hypothesis flowing from this
evidence is that appellant "acted with the requisite
criminal intent and that [her] conduct was designed to conceal
[her] criminal purpose." Smith, 222 Va. at 652, 283
S.E.2d at 212.

Additional circumstantial evidence established
that appellant’s orders constituted embezzlement. In the period
of approximately five months between March 10 and August 15,
1997, appellant personally ordered, without authorization, at
least 509 inkjet printer cartridges. In the six-and-one-half
months after she was terminated, her branch ordered only thirteen
such cartridges. During the period of time covered by the
indictments, it was not unusual for appellant to leave the office
with supplies, ostensibly to distribute them to other DEM
employees who had ordered them. However, given evidence that
appellant placed all these orders without authorization and
placed several of the orders in the names of employees who did
not request the listed supplies, the fact finder could infer that
appellant took advantage of this opportunity to remove the
cartridges from DEM’s premises.

The evidence also establishes that the inkjet
cartridges appellant embezzled were valued at more than $200 for
the period covered by each indictment. It remains a possibility
that at least a portion of the 509 printer cartridges appellant
ordered remained on the premises and were used by DEM for
legitimate business purposes. However, the evidence establishes
that the financial management branch never kept more than about a
dozen inkjet cartridges on hand at any one time and that it
ordered only thirteen cartridges in the six months following
appellant’s termination. Therefore, the branch’s usage for a
period of about six months did not exceed twenty-five cartridges,
the total of the thirteen cartridges ordered and the twelve on
hand. Subtracting twenty-five cartridges from both the 299
appellant ordered between March 10 and May 12, 1997, and the 210
appellant ordered between June 10 and August 15, 1997, leaves a
total of 274 and 185 cartridges, respectively.

Using a price of $22.23 per cartridge, the
lowest price per unit paid by DEM for an inkjet cartridge during
the relevant period, the approximate value of the cartridges
appellant embezzled was $6,091.02 during the period of the first
indictment and $4,112.55 during the period of the second
[2] Although the exact value
of the cartridges embezzled may not be ascertainable, under any
reasonable calculation, the evidence of value fully supported the
convictions for embezzlement of property valued at more than

For these reasons, we hold the evidence was
sufficient to prove appellant embezzled more than $200 worth of
property during each of the two periods covered by the
indictments, and we affirm appellant’s convictions.




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

[2] Even using the lowest estimated
street value of $8 per cartridge, the approximate value of the
cartridges appellant embezzled was $2,192 during the period of
the first indictment and $1,480 during the period of the second