delivered the opinion of the Court.
Fаlaki Mziguir filed a malicious prosecution action against Commissary Concepts Management Corporation (Commissary Concepts) and Generous Geоrge’s Positive Pizza, Inc. * The jury returned a verdict in favor of Mziguir awarding him $25,175 in compensatory damages and $25,000 in punitive damages. Commissary Concepts and Generous Geоrge’s Positive Pizza, Inc. filed this appeal, asserting that the evidence at trial was insufficient to support a finding of malicious prosecution and that the jury’s damаge awards were excessive.
Since Mziguir obtained a jury verdict that the trial court approved, we review the evidence in the light most favorable to him in determining whether there was evidence to support the verdict.
Stanley
v.
Webber,
*588 Commissary Concepts provided management services for and supervised the daily operation of Generous George’s pizza restaurant. Mary Holder was the chief operating officer and chief financial officer for Commissary Concеpts and Todd J. Kamber was the general manager of the restaurant. Mziguir was employed as a manager at the restaurant.
The restaurant’s standard operating procedure required that the manager on duty at the close of business fill out a daily sales reconciliation form, complete a deposit slip fоr the deposit of the money received that day, and put the slip and the money in the restaurant’s safe. The manager on duty the following morning was responsible fоr depositing the funds in the bank.
On October 13, 2000, Kamber met with Mziguir and the restaurant’s other managers to discuss recent problems with missing funds, including funds missing during Mziguir’s shifts. At that meeting, Kamber told the group that he would “catch” the person taking the money and “prosecute him.”
On October 16, 2000, Kamber, as the manager on duty at the close of business, filled out the daily reports and a deposit slip and put the deposit slip and money in the safe. Mziguir was on duty the following day. Due to the high volume of business at the restaurant, Mziguir did not make the bank deposit until early afternoon. When he took the deposit to the bank, the teller informed him that the deposit contained more cash than the deposit slip indicated. Mziguir took the excess money in cash, amounting to $297, back to the restaurant where he put the bank envelope containing the excess money into another envelope, on which he wrote “Don’t open 10/17/00 To Mary Holder.” He then put both envelopes inside the safe at the restaurant. Although Holder was at the restaurant throughout the day and early evening, Mziguir did not mention the money to her or anyone else at the restaurant for the remainder of the day.
The following morning, Commissary Concepts’ accounting staff discovered the $297 discrepancy between the deposit slip and the daily sales reconciliation рaperwork. When the staff told Holder of the missing money, she discussed the matter with Kamber and contacted the bank. The bank informed her that $297 had been returned to Mziguir.
Mziguir wаs not at the restaurant that day because he was not scheduled to work until October 19. Holder did not discuss the matter with him. Kamber and Holder searched the officе area and the office safe but did not find the missing money. Holder authorized Kamber to contact the police. When Officer Rick Elkins arrived at *589 the restaurant and interviewed Holder and Kamber, they told Elkins about the missing money and the information they received from the bank. They also told Elkins that they suspected that Mziguir had “possibly embezzled” the money and that the management of the restaurant was “interested in proceeding forward with charges ... if this offense was found to be valid.”
Elkins left the restaurant and conducted an interview with the bank teller who repeated the course of events to him. Based on these conversations, Elkins obtained a warrаnt from a magistrate for the arrest of Mziguir.
On the morning of October 19, 2000, Elkins served Mziguir with the arrest warrant at his apartment, handcuffed him, walked him through his apartment building, and took him by pоlice car to the Alexandria police station. At the police station, Mziguir told Elkins that he did not take the money from the business and that the cash was in the safе at the restaurant. Elkins testified that Mziguir said that he “felt he was being set up and that he hid it until he could talk to somebody else about the money.” Elkins telephoned Holder, аsking her to search the safe again for the missing money. Holder did not locate the money until Mziguir gave her specific instructions regarding where in the safe he had рut the money. Holder informed the officer that the money was in an envelope inside some documents in a part of the safe where money was not normаlly kept. At that point, Elkins and Holder agreed that the charges against Mziguir would be dropped.
DISCUSSION
In an action for malicious prosecution, the plaintiff has the burdеn of showing that the prosecution was malicious, instituted by or with the cooperation of the defendant, without probable cause, and terminated in a mannеr not unfavorable to the plaintiff.
Lee
v.
Southland Corp.,
Mаlice may be inferred from a lack of probable cause, but a lack of probable cause cannot be inferred from malice.
Bill Edwards Oldsmobile, Inc. v. Carey,
A person who is entrusted with possession of another person’s property and who converts such property to his own use or benefit is guilty of the statutory offense of embezzlement. Code § 18.2-111;
Evans v. Commonwealth,
These circumstances would “excite the belief in a reasonable mind” that Mziguir had embezzled the missing funds. He had not deposited the funds in the bank, had tаken the funds from the bank, and had not told anyone that the funds were in the restaurant’s safe, although he was at the restaurant throughout the remainder of the day. Accоrdingly, we find the evidence insufficient as a matter of law to support a finding that the prosecution against Mziguir was instituted without probable cause. Thus, the trial court еrred in denying Commissary Concepts’ motion to strike the evidence and motion to set aside the jury verdict. In light of this holding, we need not address the remaining assignments of errоr.
Accordingly, we will reverse the judgment of the trial court and enter final judgment here.
Reversed and final judgment.
Notes
Mziguir’s motion for judgment initially included counts of false imprisonment and intentional infliction оf emotional distress and named Mary Holder as a defendant. Mziguir non-suited the additional counts prior to trial, and the trial court granted Holder’s motion to dismiss following the close of Mziguir’s evidence.