Gunn v. Com.

• Decision Date: 03 November 2006
• Docket Number: Record No. 052242.
• Citation: 637 S.E.2d 324
• Parties: Robyn GUNN v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 324

637 S.E.2d 324

Robyn GUNN v. COMMONWEALTH of Virginia.

Record No. 052242.

Supreme Court of Virginia.

November 3, 2006.

Larry A. Pochucha (Bowen, Champlin, Carr, Foreman & Rockecharlie, on brief), Richmond, for appellant.

Robert H. Anderson, III, Senior Asst. Atty. Gen. (Robert F. McDonnell, Atty. Gen., on brief), for appellee.

Present: HASSELL, C.J., LACY, KEENAN, KINSER, LEMONS, and AGEE, JJ., and CARRICO, Senior Justice.

OPINION BY Justice CYNTHIA D. KINSER.

Robyn Gunn¹ was convicted in a bench trial in the Circuit Court of Southampton County of knowingly misusing or misappropriating funds that came into her custody and possession by virtue of her position as an employee of the City of Franklin School System in violation of Code § 18.2-112.² In Gunn's subsequent appeal to the Court of Appeals, a single judge denied her petition for appeal. Gunn v. Commonwealth, Record No. 2580-04-1 (June 9, 2005). For the reasons stated in that order, a three-judge panel of the Court of Appeals also denied Gunn an appeal. Gunn v. Commonwealth, Record No. 2580-04-1 (Oct. 3, 2005). Gunn now appeals from the judgment of the Court of Appeals. Because we conclude the evidence was sufficient to establish Gunn had possession of funds that came into her custody by virtue of her official position and that she knowingly misused or misappropriated the funds, we will affirm the judgment of the Court of Appeals.

RELEVANT FACTS³

Gunn was employed as a teacher at Franklin High School. As part of her duties at the school, Gunn coached the varsity cheerleading squad and consequently worked "in conjunction with" the athletic director and bookkeeper to sell advertisements in the school's football program to local businesses and organizations. Upon collecting payment for an advertisement, Gunn was supposed to record in a receipt book the name of the purchasing organization or business and the amount of the advertisement. Gunn was then required to turn in the money received, along with the receipt, to the school's bookkeeper.

One of the advertisements Gunn sold was to Paul D. Camp Community College (the College). Gunn did not collect any money from the College when she sold the $30 advertisement in the 2002 football program but agreed that the College would be billed later. Before an invoice was sent to the College, Gunn received a check in her school mailbox from the Commonwealth of Virginia in the amount of $30.00, upon which the words, "Paul D[.] Camp Community College" were printed in small type. The check was made payable to Franklin High School, and the phrase "C/O Robin Gunn" appeared immediately below the school's name. Gunn indorsed the check using her individual name and deposited it in her personal account at a credit union instead of turning it over to the school bookkeeper.

Subsequently, the school athletic director, using a list compiled by Gunn, sent invoices to purchasers of advertisements who had not paid. The College received such an invoice and informed Franklin High School that it had already paid for its advertisement in the football program. The College also provided a copy of its cancelled check. Gunn's indorsement appeared on the back of the check. Upon examining Gunn's receipt book and determining that it contained no corresponding entry for the $30 payment from the College, the Franklin High School principal reported the matter to the school system's superintendent.

In a meeting with school officials, Gunn admitted she had cashed the check and offered to repay the $30. During questioning by a City of Franklin police officer, Gunn stated she "thought the check was hers" and that it was a "reimbursement check" received in connection with classes she was taking at the College through Old Dominion University. Gunn also acknowledged to the police officer that she had not recorded the sale of the football-program advertisement to the College in her receipt book.

At trial, Gunn testified she had received the check in her school mailbox and thereafter deposited it in her account at the credit union. Gunn gave this explanation for her actions:

I didn't know what it was. [The check] just came to me, it was a Commonwealth of Virginia check. It . . . looked like something you'd get from your tax return. And it didn't say why I was receiving it. And so I just cashed it. I just assumed — at the time I had been taking classes at Paul D. Camp. I just assumed that maybe I had overpaid my tuition.

In her defense, Gunn sought to introduce several checks drawn on her personal bank account to establish that she had expended her own funds to purchase items for her students and cheerleaders. Gunn claimed such expenditures negated any suggestion that she would "steal $30 from the school system." Finding the evidence not relevant, the circuit court sustained the Commonwealth's objection to the admission of the checks.

On cross-examination, Gunn acknowledged the check in question was made payable to Franklin High School and that she fully understood the letters "C/O" on the face of the check meant "care of." Gunn further admitted the check came into her possession via her school mailbox and not at her home address, and that her signature appeared on the indorsement line on the back of the check. Finally, Gunn stated that, when the check was presented to her, she "realized that it obviously wasn't something that was supposed to be for me."

At the close of the Commonwealth's case-in-chief and at the close of all the evidence, Gunn moved to strike the evidence. In denying the motions, the circuit court reasoned that "[t]he proof required is that the defendant used or disposed of the public funds in her charge knowing that such use or disposition was a misuse or misappropriation of the funds or not in accordance with the law." The circuit court further found "there was a knowing use of these funds for misappropriation when those funds were deposited into [Gunn's] checking account." Thus, the circuit court found Gunn guilty and sentenced her to incarceration for a term of two years, which the court suspended, placing Gunn on supervised probation for a period of two years.

In denying Gunn's petition for appeal, the Court of Appeals concluded Gunn had custody of the funds because she actually possessed the check, indorsed it, and kept the $30 when she cashed the check. Gunn v. Commonwealth, Record No. 2580-04-1, slip op. at 2 (June 9, 2005). The Court of Appeals also concluded the circuit court could reasonably infer, from the evidence presented, that Gunn knowingly misappropriated the funds. Id. at 3.

ANALYSIS

On appeal, Gunn challenges the sufficiency of the evidence to sustain her conviction and the circuit court's refusal to admit the checks drawn on her personal bank account. We will address the issues in that order.

With regard to the sufficiency of the evidence, Gunn first argues that the Commonwealth failed to prove that she had custody of funds belonging to or under the control of the City of Franklin School System. Gunn asserts that, by merely having possession of the check payable to Franklin High School, she did not have custody of funds belonging to Franklin High School. Citing Code § 8.3A-403(a), Gunn further reasons that her indorsement of the check was ineffective to cause the drawer's funds to be paid by the drawee (the payor bank) and that no funds of Franklin High School were implicated because there was never a proper indorsement of the check. We do not agree with Gunn's argument.

As the Commonwealth points out, Gunn's position ignores the plain language of Code § 18.2-112. The statute makes it a Class 4 felony for "any . . . employee of . . . any city, town, county, or any other political subdivision, . . . having custody of public funds, or other funds coming into his custody under his official capacity [to] knowingly misuse or misappropriate the same or knowingly dispose thereof otherwise than in accordance with law." Code § 18.2-112 (emphasis added). In light of the emphasized language, the Commonwealth was not required to prove that Gunn had possession of public funds or funds belonging to Franklin High School. Nor did the indictment in this case charge Gunn with knowingly misusing or misappropriating the funds of Franklin High School.

Instead, the provisions of Code § 18.2-112 are in the disjunctive and plainly encompass two distinct situations-when a public employee has custody of public funds or when a public employee comes into custody of "other funds . . . under his official capacity." The evidence in this case established Gunn's conduct violated the latter portion of the statute. Gunn was an employee of the City of Franklin School System. The check for payment of the College's advertisement in the football program came into her custody in her official capacity as a teacher and cheerleading coach at Franklin High School, and she received the check in her school mailbox. Her official duties required her to turn the check over to the school bookkeeper. When she failed to do so but instead indorsed the check and deposited it into her personal account at the credit union, she misappropriated the funds represented by the check. Those funds were "other funds" within the meaning of Code § 18.2-112. Whatever legal effect Gunn's unauthorized indorsement of the check had under the provisions of the Uniform Commercial Code is irrelevant. While the provisions of Code § 18.2-112 clearly apply only to certain public officers, agents and employees, the statute just as clearly addresses not only custody of public funds but also "other funds" that come into the custody of those public officials in their official capacity.

Although penal statutes are to be strictly construed against the Commonwealth, Harward v. Commonwealth, 229 Va. 363, 365, 330 S.E.2d 89, 90 (1985), courts are nevertheless bound by the plain meaning of unambiguous statutory language and "may not assign a construction that amounts to...