Alvin T. Darden, Jr.s/k/a Alvin Tyrone Darden v. CW ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia
ALVIN T. DARDEN, JR., S/K/A
ALVIN TYRONE DARDEN, JR.
MEMORANDUM OPINION * BY
v. Record No. 2438-00-1 JUDGE LARRY G. ELDER
JULY 17, 2001
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.
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
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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
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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
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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.
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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
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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
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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.
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