Wells v. Commonwealth

• Decision Date: 01 May 2012
• Docket Number: Record No. 0864–11–4.
• Parties: Whitney Lyn WELLS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

60 Va.App. 111

724 S.E.2d 225

Whitney Lyn WELLS

v.COMMONWEALTH of Virginia.

Record No. 0864–11–4.

Court of Appeals of Virginia, Alexandria.

May 1, 2012.

A. Mark Nicewicz, Oakton, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Present: FRANK and BEALES, JJ., and BUMGARDNER, S.J.

FRANK, Judge.

Whitney Lyn Wells, appellant, was convicted by a jury of embezzlement, in violation of Code § 18.2–111. On appeal, she contends the trial court erred in: 1) finding the evidence sufficient; 2) refusing a jury instruction requiring the Commonwealth to prove she wrongfully appropriated property to her benefit; and 3) failing to respond to a juror's question as to the legal definition of fraud. For the reasons stated, we affirm.

BACKGROUND

“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’ ” Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence showed that on October 30, 2010, appellant was working as a sales associate/cashier at Macy's in the children's department. On that day she gave unauthorized discounts to a customer and permitted that customer to take other items without paying for them.

Robert Street, the loss prevention officer for Macy's, viewed the surveillance tape ¹ from that day and observed:

[A]n unidentified female walk[ed] out with three men's Polo shirts, walk to the register. You see her standing at the base of the register. The next frame is her walking into view with a large amount of boys' Polo items.

Right after that the unidentified female and Whitney Wells walked back over to the men's Polo where they both selected items, they both walked back to the register with items in hand.

A couple of minutes later the customer's transaction was complete. The customer walks away with three large bags.

Macy's computer records indicated nine boys' Polo shirts and three men's Polo shirts were marked down by appellant. Each boy's shirt was originally priced at $35 but had been marked down to $17.50. Each of the men's shirts was originally priced at $75 but rang up at $28.99. None of those items was on sale. Additionally, the unidentified female customer received a 20% discount. ² The value of the unauthorized markdowns exceeded $200. Appellant does not contest the value.

In order for appellant to manually alter the price of any item of merchandise, she must enter an override code into the register/computer. Generally, a sales associate, prior to changing a price, must receive permission from a manager. ³

Appellant also admitted giving the same customer eleven boys' Polo shirts ⁴ without any payment. She did so, she asserted, because she was trying to make people happy.

When Street confronted appellant with these facts, appellant admitted making the markdowns. She said the customer, whom she claimed to know only from the store, “always asked for discounts and asked for items for free.” Appellant told Street that “she gives in easy, that she is easily manipulated and that she changed the prices for the customer.”

The appellant admitted that she was stealing and knew it was wrong. She thought she could get away with it. There was no evidence appellant received any of the proceeds from the sale or that she received any of the merchandise.

In convicting appellant of embezzlement, the trial court found there was no evidence showing any pecuniary benefit to appellant, but opined that such benefit is not mandated by the law. The Commonwealth, the trial court concluded, must prove benefit to the defendant or benefit to another. Appellant did not challenge the fact that the customer was benefitted by appellant's actions.

The trial court granted Commonwealth's Instruction No. 4ii which stated in part:

The Court instructs the jury that the defendant is charged with the crime of embezzlement. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime:

1. That the defendant wrongfully and fraudulently converted to the use of another or disposed of, property, with the intent to permanently deprive the rightful owner thereof; and

2. That the property had been received by the defendant by virtue of her employment, office, or trust for her employer; and

3. That the value of the property was $200 or more.

Appellant did not object to this instruction.

The trial court refused appellant's Instruction No. F which read:

To establish the crime of embezzlement, the Commonwealth must prove the accused wrongfully appropriated to his or her own benefit, with the intent to deprive the owner thereof, the property entrusted or delivered to the accused. Proof of the misappropriation of property entrusted to the possession of the accused is insufficient standing alone to prove embezzlement.

The trial court granted appellant's Instruction No. G which read:

A fraudulent or dishonest act is one which involves bad faith, breach of honesty, a want of integrity or moral turpitude.

During deliberation, the jury returned and asked the trial court for a definition of “fraud” or “fraudulently” as used in Instruction No. 4ii. The trial court responded that the jury should “use the common definition of the word fraud or fraudulently.”

This appeal follows.

ANALYSIS

Sufficiency

Appellant challenges the sufficiency of the evidence, contending that the uncontradicted evidence shows she did not benefit from the price markdowns. She further maintains that she entertained no fraudulent intent, as her only intent was to please the customer.

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.

Brown v. Commonwealth, 56 Va.App. 178, 184–85, 692 S.E.2d 271, 274 (2010).

Appellant was convicted of embezzlement in violation of Code § 18.2–111 which provides, in part:

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.

Clearly, the plain language of the statute does not require the employee to personally benefit in order to be guilty of embezzlement. Proof of the “[u]nauthorized and wrongful exercise of dominion and control over another's personal property, to [the] exclusion of or inconsistent with [the] rights of the owner,” is sufficient to prove embezzlement. Evans & Smith v. Commonwealth, 226 Va. 292, 297, 308 S.E.2d 126, 129 (1983).

In Chiang v. Commonwealth, 6 Va.App. 13, 365 S.E.2d 778 (1988), this Court concluded that it is not necessary to show that the defendant misappropriated the property for “his own personal use and benefit”; it is sufficient to show that the defendant took the property to benefit another. Id. at 17, 365 S.E.2d at 781.

Furthermore, it must be noted that appellant, at trial, did not object to Commonwealth's Instruction No. 4ii which stated, in part, that the prosecution must prove that “the defendant wrongfully and fraudulently converted ... to the use of another....”

The Supreme Court of Virginia opined in Wintergreen Partners v. McGuireWoods, 280 Va. 374, 698 S.E.2d 913 (2010), “ ‘instructions given without objection become the law of the case and thereby bind the parties in the trial court and this Court on review.’ ” Id. at 379, 698 S.E.2d at 916 (quoting Owens–Illinois, Inc. v. Thomas Baker Real Estate, Ltd., 237 Va. 649, 652, 379 S.E.2d 344, 346 (1989)); see also Ulloa v. QSP, Inc., 271 Va. 72, 80, 624 S.E.2d 43, 48 (2006); T.L. Garden & Assocs. v. First Savings Bank of Va., 262 Va. 28, 31, 546 S.E.2d 705, 706 (2001). As such, “any objection to the instruction on appeal is waived. Rule 5A:18.” Wubneh v. Commonwealth, 51 Va.App. 224, 228–29, 656 S.E.2d 418, 420 (2008), overruled on other grounds, Startin v. Commonwealth, 56 Va.App. 26, 690 S.E.2d 310 (2010) (en banc).

Thus, appellant is bound by Instruction No. 4ii, i.e., that the Commonwealth need not prove appellant personally benefitted from the misappropriation.

Next, appellant contends there was no evidence of fraudulent intent because her only intent was to accommodate the customer and that she was authorized to mark down items. “To constitute embezzlement, fraudulent intent to deprive the owner of his property must be proved beyond a reasonable doubt.” Dove v. Commonwealth, 41 Va.App. 571, 578, 586 S.E.2d 890, 894 (2003) (citing Wadley v. Commonwealth, 98 Va. 803, 807, 35 S.E. 452, 455 (1900)). “Proof of intent inheres in the words or conduct of the accused.” Id. (citi...