Kingsley v. Commonwealth, Record No. 0587-03-2 (VA 8/10/2004)
| Decision Date | 10 August 2004 |
| Docket Number | Record No. 0587-03-2. |
| Court | Virginia Supreme Court |
| Parties | BEVERLY BUSH KINGSLEY, v. COMMONWEALTH OF VIRGINIA. |
Appeal from the Circuit Court of Albemarle County, Paul M. Peatross, Jr., Judge.
Taylor B. Stone (Murray J. Janus; Bremner, Janus, Cook & Marcus, on briefs), for appellant.
Amy L. Marshall, Assistant Attorney General (Jerry W. Kilgore, Attorney General; Jennifer R. Franklin, Assistant Attorney General, on brief), for appellee.
Present: Judges Frank, Kelsey and Senior Judge Overton.
On four grounds, Beverly Bush Kingsley challenges her convictions on two counts of embezzlement under Code § 18.2-111 and one count of credit card theft under Code § 18.2-192. First, she claims the prosecutor made objectionable comments during closing arguments. Second, she argues that the trial court should have consolidated the two embezzlement charges into a single count. Third, Kingsley contends she could not be convicted of credit card theft of a card "rightly in her possession." Finally, she challenges the sufficiency of the evidence supporting her embezzlement convictions. Finding these arguments either procedurally defaulted or substantively meritless, we affirm.
On appeal, we review the evidence "in the light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted). That principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Kelly v. Commonwealth, 41 Va. App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc) (citation omitted).
Patrick and Arlette deBarros own Edgemont Farm, a cattle farm near Charlottesville. Citizens of both France and Portugal, the deBarroses visit the farm several times each year and employ full time workers to run the farm and considerable estate located on the property. In May 1998, Patrick deBarros hired Beverly Kingsley as a bookkeeper and financial agent for Edgemont. Her job required her to pay farm expenses from the farm's checking account, to deposit checks payable to Patrick deBarros in a separate family checking account, to pay for miscellaneous expenses from one of two other personal checking accounts, and to make any personal purchases specifically requested by the deBarroses. For all farm related expenses, Patrick deBarros instructed Kingsley to pay invoices by check to the extent possible.
The deBarroses had a number of personal credit cards. Kingsley was given permission to use the cards when making purchases on behalf of, and only when specifically requested by, the deBarroses. One set of cards was issued on an American Express Gold Card account. When Patrick deBarros received in the mail Platinum Cards from American Express on a new account number, he directed Kingsley to cancel the older Gold Cards and to close the account. Instead of doing so, Kingsley retained a set of renewed Gold Cards and continued to use the card issued in Arlette deBarros's name. After instructing Kingsley to close the account, the deBarroses did not authorize any purchases on this account.
In 2000, an accountant working for the deBarros family discovered that the farm's cash expenditures for 1999 had tripled from the year before (from around $25,000 to around $80,000) and that Kingsley was no longer producing the required monthly financial reports. When confronted with these facts, Kingsley quit. The day she tendered her resignation and walked out, Kingsley cut herself a check for three weeks of unauthorized vacation pay.
Further review of the accounts revealed that between August 1998 and October 2000 Kingsley signed 109 checks made payable to cash. She also signed Patrick deBarros's name on several other checks drawn by others made payable to him. She cashed these checks as well. The deBarroses discovered that the American Express Gold account had been renewed, not cancelled, in 1999. Kingsley "used abusively" the renewed cards for her own personal benefit, charging approximately $11,000 in purchases made after March 1999. In addition, she wrote four checks to pay an American Express Gold Card invoice for purchases she claimed to have made for Arlette deBarros. Mrs. deBarros denied requesting or receiving any of these purchased items.
Kingsley's personal banking records showed she opened a checking account with a zero balance on September 1, 1999. In the first month alone, she made at least ten cash deposits from unverified sources totaling over $9,500. The large cash deposits continued throughout the tenure of her employment in amounts ranging from a couple thousand to several thousand dollars a month. Beginning in November 2000 — after Kingsley left her job at Edgemont Farm — the deposits decreased dramatically, amounting to little over $1,000 per month.
At trial, Kingsley denied taking any money for personal gain. All of the apparent defalcations, she asserted, could be explained as either legitimate payments of farm expenses by cash or authorized purchases specifically requested by the deBarroses. She admitted, for example, using the American Express Gold Card after being instructed to close the account, but claimed she used the card to make purchases for Arlette deBarros.
At the close of the prosecution's evidence, Kingsley requested that the two embezzlement charges be consolidated into one. She based her request on a narrow factual point, contending
there's one embezzlement charge which covers the longer period of time as opposed to two, even though there may be two bank accounts. It's Mr. and Mrs. deBarros's joint money and they testified they lived in that way and I would ask the Court to consolidate the embezzlement and have just one embezzlement charge . . . .
The prosecutor replied by pointing out "there are two separate sets of facts here for the embezzlement" — one was the farm account listing both deBarroses as account owners, the other was Arlette deBarros's personal account listing her as the sole owner.1 Kingsley rejoined: "Well, if I'm not mistaken, I believe both names are on that account . . . ." Stating that Patrick deBarros was "not on that account," the trial court overruled the motion. Kingsley renewed the motion after the presentation of the defense evidence. The trial court again held:
In closing arguments, the prosecutor discussed how Kingsley, while working for Edgemont Farm, would often use cash to purchase personal products, spending upwards of $800 to $900 at a time. Referring to the testimony of a local clothier's employee who frequently dealt with Kingsley between 1994 and 2000, the prosecutor discussed Kingsley's normal practice of making large personal purchases with cash: "The manner of doing it was to find out how much all her purchases totaled, eight or nine hundred ($900) at a whack, and then she'd go to the bank and get cash." Kingsley objected: The trial court overruled the objection, characterizing the prosecutor's statement as mere "argument."
As the prosecutor continued this line of argument, Kingsley again objected: The court overruled the renewed objection and stated: This brief cautionary instruction tracked a more elaborate instruction given to the jury at the start of the trial in which the court instructed the jury: At no point did Kingsley move the court for a mistrial or ask the court for any additional cautionary instructions.
The jury found Kingsley guilty on both counts of embezzlement and the count alleging credit card theft. Accepting the jury's recommended sentence, the trial court imposed a two and a half year prison term for each embezzlement charge. The trial court also fined Kingsley for the credit card theft and ordered her to make restitution.
Kingsley claims the prosecutor made "several factual misrepresentations" during closing arguments and the trial court should have given a cautionary instruction directing the jury to disregard these remarks. Kingsley, however, never requested a cautionary instruction. Nor did she move for a mistrial. Under settled law, a "timely motion for a mistrial or a cautionary instruction is required to preserve the issue for appeal even if an objection was properly made to the conduct or comments and improperly overruled by the trial judge." Morris v. Commonwealth, 14 Va. App. 283, 287, 416 S.E.2d 462, 464 (1992) (en banc); see also Schmitt v. Commonwealth, 262 Va. 127, 148, 547 S.E.2d 186, 200-01 (2001). "There appears to be no exception in Virginia law to the strict application of this rule." Bennett v. Commonwealth, 29 Va. App. 261, 281, 511 S.E.2d 439, 448-49 (1999).2
The trial court twice instructed the jury that closing arguments of counsel could not be considered evidence, once at the start of the trial and again at the moment of Kingsley's objection. This fact alone dissolves any possibility of a miscarriage of justice sufficient to trigger the ends-of-justice exception to Rule 5A:18. As a result, we do not address Kingsley's claim that the trial court erred in failing to sustain her objection and craft a more specific cautionary instruction sua sponte.
Kingsley next argues the...
To continue reading
Request your trial