Brown v. Commonwealth Of Va.

• Decision Date: 04 May 2010
• Docket Number: Record No. 0666-09-4.
• Citation: 692 S.E.2d 271,56 Va.App. 178
• Court: Virginia Court of Appeals
• Parties: Kaipha S. BROWNv.COMMONWEALTH of Virginia.

56 Va.App. 178

692 S.E.2d 271

Kaipha S. BROWNv.COMMONWEALTH of Virginia.

Record No. 0666-09-4.

Court of Appeals of Virginia Alexandria.

May 4, 2010.

Lisa Joy Harwood, Assistant Public Defender (Office of the Public Defender, on briefs), for appellant.

Leah A. Darron, Senior Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: HUMPHREYS, KELSEY and PETTY, JJ.

ROBERT J. HUMPHREYS, Judge.

Kaipha S. Brown (“Brown”) appeals his two convictions for embezzlement, in violation of Code § 18.2-111, and four convictions of uttering, in violation of Code § 18.2-172. On appeal, Brown contends that the evidence adduced at trial was insufficient to sustain any of his convictions. For the following reasons, we agree with Brown and reverse.

BACKGROUND

On appeal, “ ‘[w]here the issue is whether the evidence is sufficient, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ ” Lunsford v. Commonwealth, 55 Va.App. 59, 60, 683 S.E.2d 831, 832 (2009) (quoting Sandoval v. Commonwealth, 20 Va.App. 133, 135, 455 S.E.2d 730, 731 (1995)). So viewed the evidence was as follows.

The facts of this case concern the well-known practice of airline companies to overbook many of their flights. When a flight is overbooked, these companies compensate passengers who agree to be “bumped” from the flight, on which they have reserved a seat, by issuing vouchers redeemable for the purchase of a ticket on a future flight.

Brown was a customer service representative for United Airlines (“United”) from 1999 to 2005. In July of 2005, United suspended Brown without pay. During his suspension, United stripped Brown of his employee badge and denied him access to the company's computer terminals. United never reinstated Brown's employee privileges.¹

On July 27, 2005, Brown went to Ronald Reagan Airport in Arlington County and approached a United ticket counter. There, Brown spoke with Lenny Starkweather (“Starkweather”), a customer service representative for United who recognized Brown as a former United employee. Brown presented Starkweather with several Denied Boarding Compensation Vouchers (“vouchers”) ² in Brown's name, and asked Starkweather to exchange the vouchers for airline tickets. The vouchers were issued on July 20, 2005. Brown explained that he no longer worked for United and that he received the vouchers when he was “bumped” from a flight to London. Starkweather processed the transaction and issued Brown airline tickets.

On July 31, 2005, Brown returned to Ronald Reagan Airport and again approached the United ticket counter. This time, Brown spoke with Wanda Keeratisak (“Keeratisak”). Brown presented Keeratisak with several vouchers, which were issued on July 30, 2005, and requested that she issue him airline tickets. Keeratisak complied.

On October 19, 2005, United issued tickets to Ruth Mbazi and Endama Nixon at Ronald Reagan Airport in exchange for vouchers in the name of Brown's father, “Sherman Brown.” United issued the vouchers in question on September 24, 2005, against a reservation made by Sherman Brown.

On November 11, 2005, Brown again went to Ronald Reagan Airport and approached the United ticket counter. There, Brown spoke with Ana Morales (“Morales”), United's service director for that location. Once again, Brown presented vouchers to Morales and asked her to issue tickets in the names of Lawrence, Sherleen, Tobias, Lawrence, Jr., and Selma Totimeh.³ Morales testified that United was aware of some inconsistencies concerning Brown's vouchers and advised its employees to be on the lookout for Brown. However, after speaking with her supervisor, Morales issued the tickets to Brown anyway.⁴ Ultimately, United determined that all of Brown's vouchers were issued improperly because the underlying reservations were not paid for or, in the case of the voucher issued to “Sherman Brown,” the underlying reservation was honored.

Late in 2005, a United fraud investigator notified Detective Daniel Stafford (“Stafford”) of the Metropolitan Washington Airports Authority Police Department ⁵ of a potential “ticket fraud scheme” orchestrated by Brown. After speaking with a few of the United employees who had issued tickets to Brown in exchange for vouchers, Stafford contacted Brown and asked him to come to the police station for an interview. On January 28, 2006, Brown went to the station voluntarily and spoke with Stafford concerning the vouchers.⁶ Because Brown had not yet been charged with a criminal offense, Stafford informed Brown that he was not under arrest and that he was free to leave at any time.

In the interview, Brown stated that he exploited a “loophole” he found in United's reservation system. United's reservation system allowed its customers to pay for their tickets at the airport, if they made their reservation within twenty-four hours of flight time. Brown explained that he would make a reservation on an overbooked flight and then volunteer to be “bumped” from the flight in exchange for a voucher. Brown would then leave the airport with a voucher but without having paid for his underlying reservation. In February of 2006, Stafford obtained warrants for Brown's arrest from a magistrate. However, because Stafford could not locate Brown, he was not arrested until 2007.

Brown was charged with two counts of embezzlement and four counts of uttering a forged instrument. He requested a trial by jury. The Commonwealth proceeded on the theory that Brown committed the crime of embezzlement when he, by virtue of his employment with United, obtained improperly issued vouchers, which he later exchanged for airline tickets to the detriment of United. The Commonwealth further argued that Brown committed uttering when he presented the improperly issued vouchers to United's ticket agents.

At trial, Brown took the stand in his own defense. Brown testified that, while working at Dulles Airport in June of 2005, he realized that he could exploit United's reservation system when he received vouchers from a European couple traveling in the United States. According to Brown, the travelers gave him their vouchers because they believed that they would be unable to use them before the vouchers' expiration date. Brown took the vouchers back to Dulles Airport and attempted to exchange them for tickets. When the United ticket agent refused to issue the tickets to Brown, he “went behind the counter and issued the tickets.” ⁷

Regarding the other occasions on which Brown obtained vouchers, Brown testified that he would call United and make a reservation on a flight for him and his family. United's ticket agent would ask Brown if he planned to pay for the ticket then or at the airport. Brown testified that he would always elect to pay for the reservation at the airport. United then booked the flight and assigned seats to Brown and his family, giving Brown a confirmation number for the transaction. Brown testified that, with the confirmation number and seat assignment in hand, he would go to the airport on the date of his scheduled flight and proceed directly to the United ticket counter. When United announced that his flight was oversold, Brown would volunteer to give up his seats in exchange for a voucher. Brown would then leave the airport without having paid for his initial reservation. Brown further testified that he redeemed vouchers for tickets in the names of his friends and family, but could not recall if he was paid in return.

At the close of the Commonwealth's case-in-chief and again at the close of all the evidence, Brown made a motion to strike all of the charges against him. Brown argued that the Commonwealth's evidence was insufficient as a matter of law to support the convictions. The trial court denied Brown's motion, and he was convicted.

This appeal followed.

ANALYSIS

“When considering a challenge that the evidence presented at trial is insufficient, we ‘presume the judgment of the trial court to be correct’ and reverse only if the trial court's decision is ‘plainly wrong or without evidence to support it.’ ” Baylor v. Commonwealth, 55 Va.App. 82, 86, 683 S.E.2d 843, 845 (2009) (quoting Davis v. Commonwealth, 39 Va.App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). “We do not ‘substitute our judgment for that of the trier of fact.’ ” Id. (quoting Wactor v. Commonwealth, 38 Va.App. 375, 380, 564 S.E.2d 160, 162 (2002)). “Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). “This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Id.

I. Embezzlement

Brown contends that the evidence adduced at trial was insufficient to sustain his convictions for embezzlement. Specifically, Brown argues that the Commonwealth produced no evidence demonstrating that he was entrusted with the airline tickets by virtue of his employment with United. Brown maintains that, absent such evidence, his convictions cannot be upheld. We agree.

Brown was convicted of two counts of embezzlement, in violation of Code § 18.2-111. That section provides:

If any person wrongfully and fraudulently use, dispose of, conceal or embezzle any money, bill, note, check, order, draft, bond receipt, bill of lading or any other personal property, tangible or intangible which he shall have received for another or for his employer, principal or bailor, or by virtue of his office, trust, or employment, or which shall have been entrusted or delivered to him by another or by any court, corporation or company, he shall be guilty of embezzlement.

Code § 18.2-111 ...