724 S.E.2d 225
Va. Ct. App.2012Background
- Wells, Macy's sales associate, was convicted of embezzlement under Va. Code § 18.2-111 for unauthorized discounts and giveaways on Oct 30, 2010.
- Surveillance and store records showed multiple unauthorized markdowns (nine boys' Polo shirts and three men's shirts) and a 20% customer discount, totaling over $200 in value.
- Appellant admitted to making the markdowns and giving away shirts, claiming the customer asked for discounts and that she would call a manager for price reductions; she also stated she did not receive proceeds.
- The trial court instructed that embezzlement does not require personal pecuniary benefit to the defendant; the Commonwealth's Instruction No. 4ii stated the elements including wrongful conversion, receipt by virtue of employment, and $200+ value.
- Appellant did not object to Instruction No. 4ii; she challenged Instruction No. F (misappropriation to own benefit) and argued the court should define fraud if jurors asked, but the court refused those requests.
- The Court of Appeals affirmed, ruling sufficiency supported, Instruction No. 4ii proper, Instruction No. F improperly duplicative, and no reversible error in not defining fraud for the jury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the evidence sufficient to sustain embezzlement conviction? | Wells asserts no personal benefit; argues no fraudulent intent. | Commonwealth needed only unauthorized conversion for another's benefit; personal benefit not required. | Evidence sufficient; misappropriation to others suffices. |
| Did trial court err by refusing Instruction F requiring personal benefit for embezzlement? | F was necessary to limit misappropriation as insufficient alone. | 4ii already required wrongful/conversion to use of another; F was duplicative. | Court properly refused; 4ii governs; F duplicative and incomplete. |
| Whether the jury was adequately instructed on misappropriation and conversion under embezzlement law? | Instruction F more precisely required misappropriation for personal benefit. | 4ii already defined elements; no need for F. | Instruction 4ii properly framed; F rejected; no error in instructions. |
| Did the trial court err in not defining 'fraud' for the jury upon their request? | Fraud terms are technical; jurors needed a strict definition. | Fraud is a common-m meaning; no definition required. | No reversible error; definition not required; any error, if any, harmless. |
Key Cases Cited
- Chiang v. Commonwealth, 6 Va.App. 13 (Va. Ct. App. 1988) (emphasizes not requiring personal use; benefit to another suffices)
- Wintergreen Partners v. McGuireWoods, 280 Va. 374 (Va. 2010) (law-of-the-case about unobjected instructions binding on appeal)
- Wubneh v. Commonwealth, 51 Va.App. 224 (Va. App. 2008) (waiver of unraised issues; Rule 5A:18/5A:20 briefing requirements)
- Morgan v. Commonwealth, 50 Va.App. 120 (Va. App. 2007) (standard for evaluating jury instructions; avoid repetitious charges)
- Clay v. Commonwealth, 262 Va. 253 (Va. 2001) (harmless-error standard for non-constitutional errors)
- Clark v. Commonwealth, 220 Va. 201 (Va. 1979) (defines when definitions of common words need not be given)
- Parnell v. Commonwealth, 15 Va.App. 342 (Va. App. 1992) (reiterates that courts rely on ordinary meaning of terms)
- Archer v. Commonwealth, 26 Va.App. 1 (Va. App. 1997) (affirming standard for sufficiency review)