Cameron E. Magouirk v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Baker
Argued at Norfolk, Virginia
CAMERON E. MAGOUIRK
MEMORANDUM OPINION * BY
v. Record No. 2768-97-1 JUDGE NELSON T. OVERTON
NOVEMBER 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ISLE OF WIGHT COUNTY
E. Everett Bagnell, Judge
Michael J. Lutke, Assistant Public Defender
(Office of the Public Defender, on brief),
for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Cameron E. Magouirk (defendant) appeals his conviction of
grand larceny/embezzlement, in violation of Code §§ 18.2-95 and
18.2-111. On appeal, he contends the evidence was insufficient
to support the conviction. Specifically, he argues the
Commonwealth did not prove he intended to commit embezzlement.
Because we hold that the evidence was sufficient, we affirm.
The parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedental
value, no recitation of the facts is necessary.
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
inferences fairly deducible therefrom." Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). We
will reverse the conviction only if plainly wrong or without
support in the evidence. See Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987).
"To establish the statutory crime of embezzlement under Code
§ 18.2-111, it is necessary to prove that the accused wrongfully
appropriated to [his] use or benefit, with the intent to deprive
the owner thereof, the property entrusted to [him] by virtue of
[his] employment or office." Waymack v. Commonwealth, 4 Va. App.
547, 549, 358 S.E.2d 765, 766 (1987) (citing Lee v. Commonwealth,
200 Va. 233, 235-36, 105 S.E.2d 152, 154 (1958)). "Intent is the
purpose formed in a person's mind that may, and often must, be
inferred from the facts and circumstances in a particular case."
Jennings v. Commonwealth, 20 Va. App. 9, 17, 454 S.E.2d 752, 756
(1995) (citing Ridley v. Commonwealth, 219 Va. 834, 836, 252
S.E.2d 313, 314 (1979)).
The facts and circumstances of this case proved that
defendant intended to embezzle Ashe's tree climbing equipment.
Subsequent to his termination from Ashe's employ, defendant was
asked to return the equipment on four separate occasions. When
Ashe made repeated, reasonable attempts to collect the gear at
defendant's home, the gear was locked away in various locations,
all of them inaccessible to Ashe. When defendant finally talked
to Ashe, defendant lied by telling Ashe the equipment was in
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North Carolina when, in reality, defendant had taken the gear to
his mother's house in Isle of Wight. Defendant also lied to Ashe
about the length of time defendant was detained in jail. In all,
defendant did not return Ashe's equipment for twelve days
following defendant's termination and was persuaded to do so only
after he was in police custody. The trier of fact was entitled
to infer from these circumstances that defendant did not intend
to return the equipment to his former employer. See Ketchum v.
Commonwealth, 12 Va. App. 258, 261, 403 S.E.2d 382, 383 (1991)
(holding that failure to return a car five days past due proved
intent).
We hold that the evidence was sufficient to support the
conviction. Therefore, defendant's conviction is affirmed.
Affirmed.
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