FROM THE CIRCUIT COURT OF POWHATAN COUNTY. Thomas V. Warren, Judge.
Paul W. Cella for appellant.
John K. Byrum, Jr., Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Coleman, Elder and Senior Judge Cole.
MEMORANDUM OPINION [*]
SAM W. COLEMAN III,
The defendant was convicted of embezzlement and he appeals that conviction. Addressing the issues he raises on appeal, we hold that Powhatan County was a proper venue and we find that the evidence was sufficient to prove the defendant's intent to embezzle. Accordingly, we affirm the conviction.
On appeal, we view the evidence in the light most favorable to the Commonwealth and accord it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Carole Williams placed a newspaper ad offering to sell her computer and monitor for $ 850. As a result, the appellant contacted her and offered to sell the computer on consignment. Ms. Williams testified that the appellant came to her house in Powhatan County to see the computer and " asked me if instead of paying him a percentage to sell the computer, if I would give him sixty days to sell it, he would pay me my full asking price, which was $ 850.00."
While at Williams' home, the appellant gave her a business card on which was printed his company name, Soft Touch Computers, and a telephone number but no address. The appellant also presented a written consignment contract, which Williams signed, that also showed the company name and telephone number but no address. The appellant showed Williams a business license which she testified " looked official." On cross-examination, the appellant explained that he did not put his address on the business card or the contract because he " worked out of" his apartment and the lease was not in his name.
Williams agreed to consign her computer to the appellant for sale. She signed the " consignment contract" that provided for a term of sixty days ending on August 13, 1994 for the appellant to sell the computer. The appellant took the computer with him.
At trial, the appellant testified that he put the computer in a storage area which he shared with a friend, Calvin Clark. The appellant testified that the computer was stolen from the storage area, evidently by Clark, who promised to pay appellant for the computer provided that appellant would not call the police. The appellant did not call the police nor did he inform Williams of his claim that her computer had been stolen.
When Williams tried to contact the appellant after the sixty day consignment, his phone had been disconnected. She could not find an address for him or alternative phone number. The appellant did not return the computer to Williams or pay her $ 850, nor did he contact her. At trial, the appellant explained that he did not contact Williams because due to " the circumstances with Henrico County, traffic violations, I fled from Henrico County to evade going to Court to Roanoke City. Basically, I left everything behind." He also testified that he thought his friend, Calvin Clark, would pay him for the computer so he could pay Ms. Williams and that when he did not get the money, he was " embarrassed."
Hearing the case without a jury, the trial judge found the appellant's testimony to be not credible. The trial judge found appellant guilty of embezzlement and sentenced him to twelve months in jail. On appeal, the decision of a trial court sitting without a jury will not be reversed unless it is plainly wrong or without evidence to ...