Paula Hardy Purifoy v. Commonwealth of Virginia ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Baker
Argued at Richmond, Virginia
PAULA HARDY PURIFOY
MEMORANDUM OPINION * BY
v. Record No. 0374-98-2 JUDGE JOSEPH E. BAKER
APRIL 27, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LUNENBURG COUNTY
Charles L. McCormick, III, Judge
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
§ 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
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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
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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
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(quoting E. Cleary, McCormick on Evidence § 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 § 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
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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
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value where "the several acts are done pursuant to a single
impulse" (citation omitted)).
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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