Bourgeois v. Com., 751161

• Decision Date: 02 September 1976
• Docket Number: No. 751161,751161
• Citation: 217 Va. 268,227 S.E.2d 714
• Court: Virginia Supreme Court
• Parties: Bruce E. BOURGEOIS v. COMMONWEALTH of Virginia. Record

Page 714

227 S.E.2d 714

217 Va. 268

Bruce E. BOURGEOIS v. COMMONWEALTH of Virginia.

Record No. 751161.

Supreme Court of Virginia.

Sept. 2, 1976.

Robert H. Patterson, Jr., Richmond (W. Carter Younger; McGuire, Woods & Battle, Richmond, on brief), for plaintiff in error.

Gilbert W. Haith, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

In a jury trial the defendant, Bruce E. Bourgeois, was found guilty of grand larceny, and his punishment was fixed at confinement for two years in the penitentiary. We granted Bourgeois a writ of error, on limited grounds, to the judgment order entered on the jury verdict, to consider his challenges to the sufficiency of the evidence and the admissibility of certain evidence adduced against him.

Bourgeois was charged in two indictments with grand larceny. The Commonwealth proceeded on the theory that Bourgeois had obtained money by false pretenses in violation of Code § 18.1--118 (Repl.Vol.1960). ¹ By bill of particulars the Commonwealth alleged, as to the first indictment, that Bourgeois collected and received $200 from Everett Dandridge as payment for services and thereafter falsely, feloniously and with fraudulent intent caused the Treasurer of Virginia to make payment for the same services. Concerning the second indictment, the Commonwealth made a similar allegation in respect to a specified sum collected by the defendant from Bennett Durham.

At the conclusion of the Commonwealth's evidence, the defendant moved to strike the evidence as to both indictments, and this motion was overruled. The defendant introduced no evidence and renewed his motion to strike, which was granted as to the second indictment but overruled as to the first. After the jury returned a verdict of guilty as charged under the first indictment, the trial court took under advisement but subsequently denied the defendant's motion to set aside the verdict because of insufficient evidence.

The evidence sufficiently established that Bourgeois was president of Revco Tractor-Trailer Training, Inc. (Revco), a corporation which provided instruction for individuals interested in learning how to operate trucks; that the Department of Vocational Rehabilitation of Virginia (DVR), functioning under an agreement whereby it received matching funds from the federal government, made rehabilitative services available to physically, emotionally and mentally disabled and handicapped persons for the purpose of enabling them to adjust to their disabilities and return to gainful employment; that Revco was a 'vendor' in the DVR nomenclature, in that DVR had contracted with Revco to provide training services for DVR students, or 'clients'; and that DVR established the fee rates to be charged by a vendor who, after receiving the required authorization from a DVR counsellor, furnished services to a client.

Robert Brockleshurst, Jr., a Regional Director of DVR, testified to the procedure utilized to pay a vendor for services rendered to a DVR client. A DVR counsellor, cognizant of the fee rates approved by DVR, determined whether the client qualified for particular services. He then arranged with a vendor for the client to receive the appropriate services and authorized payment from DVR funds. After the client received the authorized training the vendor sent to the counsellor a progress report and a bill for services rendered. An invoice was prepared by the counsellor and forwarded to the state comptroller, who issued the check to the vendor. By regulation DVR was required 'to make use of any other financial resources' of the client before committing DVR funds.

Brockleshurst testified that in May, 1972, it came to his attention that in certain cases counsellors might not have been following the proper procedure. Ascertaining that Revco was the vendor in some of these cases, Brockleshurst visited the office of the corporation in June, conferred with Bourgeois, whom he knew to be 'the administrative head' of the business, and examined the Revco files concerning DVR clients.

On July 20, 1972, Brockleshurst met with Bourgeois and examined a list prepared by Bourgeois showing the amounts paid by the Commonwealth for 76 DVR students trained by Revco. The name of Everett Dandridge was on the list, together with a notation that DVR had paid to Revco the established fee of $795, the amount authorized for his training instruction. Brockleshurst found, from his own investigation, that of 85 DVR students trained by Revco some had personally paid money to Revco, and that Revco had also ultimately received the full amount of tuition charges from DVR. On August 9, 1972, Bourgeois presented a list to Brockleshurst showing such duplicate payments and wrote out and delivered to him a check payable to DVR for the total amount of the overpayment.

Over the defendant's objection, the trial court admitted into evidence as Exhibit 4 that list, identified by Brockleshurst, revealing that duplicate payments for 24 DVR students, including Dandridge, had been received by Revco in the aggregate amount of $5,860. The amount of the overpayment for Dandridge was $200. Brockleshurst testified that Bourgeois informed him that these students applied to Revco for training, paid certain amounts at that time, and subsequently were referred to DVR, where counsellors authorized payment of the full amount of tuition.

On cross-examination Brockleshurst testified that Bourgeois stated that the discrepancies had arisen 'because of problems in his bookkeeping system'. The witness conceded that he had reported to his superior that DVR had authorized all the funds which were paid to Revco and that Revco 'had followed the authorizations and procedures'. Brockleshurst also conceded that DVR had reinstated Revco on the list of approved vendors.

William Creekmur, a former DVR counsellor, testified that he received Dandridge's name from Bourgeois, who was aware of Creekmur's 'need for clients' so that 'the counsellors would look good, the Department would look good, and it would result in more federal funds' for his unit; that he had used Revco as a vendor; that he had dealt only with Bourgeois at Revco; and that he had prepared the DVR file on Dandridge. Although that file noted an initial interview with Dandridge on April 3, 1972, listed as the referral date, Creekmur admitted that he had never met Dandridge and had acquired all the information about him from Bourgeois. Included in the file was a case plan for Dandridge, which forecast payment of $795 for one unit of training as a truck driver, and a copy of the Revco bill for the full amount of his tuition.

Creekmur further testified that the Revco bill was forwarded to DVR by letter dated May 8, 1972, signed by Bunny Imburg, Bourgeois's secretary. Both the letter and the bill were typed on stationery bearing the printed name of Bourgeois as president of Revco. Typed at the lower left-hand corner of the letter were two sets of initials, separated by a colon, corresponding with those of Bourgeois and Bunny Imburg. Denying any knowledge that Revco had collected money directly from Dandridge, Creekmur insisted that, if he had known of this payment, he would have subtracted it from the authorized tuition payment made by DVR. Creekmur conceded, however, that if he had performed his duty of interviewing Dandridge he would have discovered that this client had already partially paid Revco.

Dandridge testified that he had never heard of DVR; that he read about Revco in the newspaper and applied in person to Bourgeois; that at the first meeting he signed a contract with Revco to obtain instruction costing $795 and paid Bourgeois $200 in cash, for which he obtained a receipt. The receipt and a copy of the contract, both dated April 6, 1972, and signed by Bourgeois on behalf of Revco, were admitted into evidence. At that time Dandridge learned from Bourgeois that in some cases a student might qualify for financial assistance from the State but that if Dandridge could not obtain such aid, upon completion of the course, Revco would arrange for him to pay...