Nancy Mulvaney v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
NANCY MULVANEY
v. Record No. 0924-94-1 MEMORANDUM OPINION * BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA OCTOBER 31, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Robert B. Rae (Rae, Bergstrom & Rae, on brief), for
appellant.
Steven Andrew Witmer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Nancy Mulvaney (defendant) was convicted in a bench trial on
an indictment charging a single count of embezzlement by a "common
plan, scheme or design" in violation of Code § 18.2-111. Defendant
argues on appeal that (1) the trial court erroneously allowed a
Commonwealth witness to testify to the "ultimate issue of guilt,"
and (2) the evidence was insufficient to support the conviction.
We disagree and affirm the judgment of the trial court.
The parties are fully conversant with the record in this case,
and we recite only those facts necessary to a disposition of the
appeal.
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, granting
to it all reasonable inferences fairly deducible therefrom. Martin
*
Pursuant to Code § 17-116.010 this opinion is not designated
for publication.
v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
The judgment of a trial court, sitting without a jury, is entitled
to the same weight as a jury verdict and will be disturbed only if
plainly wrong or without evidence to support it. Id. The
credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely for
the fact finder's determination. Long v. Commonwealth, 8 Va. App.
194, 199, 379 S.E.2d 473, 476 (1989).
The evidence disclosed that defendant was employed as
"bookkeeper" for Commonwealth Information Systems, Inc. (Systems)
during the period embraced by the indictment. Defendant's
supervisor, Sherry Cassell, testified that defendant's duties
included receiving funds collected by herself and other employees,
correctly crediting the payor's account, and totalling and
depositing the monies to Systems' bank account, all with the
appropriate documentation. Ms. Cassell explained that numerous
receipt/deposit discrepancies were discovered following termination
of defendant's employment (due to an overall reduction in force),
each of which occurred during her employment. She testified that
an audit of Systems' accounts traced these irregularities to the
substitution of check receipts for equivalent, but missing, cash
payments, at the time of deposit.
One transaction detailed by Ms. Cassell related to a $627.46
check received by Systems between May 27, 1993 and June 1, 1993.
While the proper account was credited with this payment, the check
did not appear on the daily payment register or on "adding machine
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tapes" of the receipts, both of which should have reflected all
payments into Systems during a business day. However, a notation,
"Do Special Deposit $627.46 LC-3," appeared on a small "post-it
note" affixed to the payment register, and the check was deposited
to Systems' account. Records of the daily cash receipts for the
period indicated that $627.46 less cash was deposited than actually
received. Nevertheless, Systems' ledger was balanced by deposit of
the unreported check, which replaced the missing cash. The deposit
ticket that attended this transaction was prepared by defendant and
was consistent with the manipulated receipts. The Commonwealth
introduced evidence of no less than six substantially similar
transactions, all linked to defendant.
Defendant first complains that the trial court improperly
permitted Ms. Cassell to testify to the "ultimate issue." It is
well established that this Court will not consider an argument
which was not presented to the trial court. Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991);
Rule 5A:18. "On appeal, a ruling of a trial court cannot be a
basis for reversal unless an objection is stated 'together with the
grounds therefor at the time of the ruling, except for good cause
shown or to enable the Court of Appeals to attain the ends of
justice.'" Campbell v. Commonwealth, 12 Va. App. 476, 480, 405
S.E.2d 1, 2 (1991) (en banc) (quoting Rule 5A:18). Here, defense
counsel failed to specifically object during trial that Ms. Cassell
1
testified to the ultimate issue. Finding no justification to
1
Defendant's objection to Ms. Cassell's "expert" testimony
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apply the "ends of justice" exception, we decline to address this
question.
Defendant next challenges the sufficiency of the evidence to
support the conviction. To convict, the Commonwealth was required
to prove that defendant "wrongfully appropriated to [her] own use
or benefit, with the intent to deprive . . . [Systems] thereof, the
property . . . entrusted to [her] by reason of [her]
employment. . . ." Webb v. Commonwealth, 204 Va. 24, 34, 129
S.E.2d 22, 30 (1963); Zoretic v. Commonwealth, 13 Va. App. 241,
243, 409 S.E.2d 832, 833-34 (1991). When the Commonwealth relies
upon circumstantial evidence, the evidence must exclude every
reasonable hypothesis of innocence. Coffey v. Commonwealth, 202
Va. 185, 188, 116 S.E.2d 257, 259 (1960). "It is not sufficient
that the evidence create a suspicion of guilt, however strong, or
even a probability of guilt, but must exclude every reasonable
hypothesis save that of guilt." Webb, 204 Va. at 34, 129 S.E.2d at
29. However, the Commonwealth need only exclude reasonable
hypotheses of innocence that flow from the evidence, not those that
spring from the imagination of defendant or counsel. Cook v.
Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983); Fordham
v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829, 831 (1991).
Here, the evidence established that defendant was responsible
for receiving cash and checks belonging to Systems, verifying and
documenting the amounts, and depositing the funds to Systems' bank
related solely to defendant's handwriting.
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account. Defendant prepared the relevant deposit slips and adding
machine tapes, including checks omitted from the payment register
which compensated for deficiencies in cash receipts. Defendant
reported no errors in cash received by her from other employees,
and the unregistered check was always properly credited to the
payor's account with Systems. Such evidence clearly supports the
requisite inference that defendant was manipulating the cash and
check receipts to conceal a diversion of cash from Systems to
herself.
Accordingly, we affirm the conviction.
Affirmed.
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