Preview:

Present:    Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and
Agee, JJ., and Carrico, S.J.
ROBYN GUNN
v.    Record No.  052242    OPINION BY JUSTICE CYNTHIA D. KINSER
November  3,  2006
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Robyn Gunn1 was convicted in a bench trial in the
Circuit Court of Southampton County of knowingly misusing
or misappropriating funds that came into her custody and
possession by virtue of her position as an employee of the
City of Franklin School System in violation of Code  §  8.2-
112.2    In Gunn’s subsequent appeal to the Court of Appeals,
a single judge denied her petition for appeal.    Gunn v.
Commonwealth, Record No.  2580-04-1  (June  9,  2005).    For the
reasons stated in that order, a three-judge panel of the
Court of Appeals also denied Gunn an appeal.    Gunn v.
1 At trial, Gunn testified that her name was  “Robyn
Gunn Robertson.”    However, she was indicted, convicted, and
sentenced under the name of  “Robyn Gunn.”
2 Code  §  18.2-112 states,  “If any officer, agent or
employee of the Commonwealth or of any city, town, county,
or any other political subdivision, or the deputy of any
such officer having custody of public funds, or other funds
coming into his custody under his official capacity,
knowingly misuse or misappropriate the same or knowingly
dispose thereof otherwise than in accordance with law, he
shall be guilty of a Class  4 felony; and any default of
such officer, agent, employee or deputy in paying over any
such funds to the proper authorities when required by law
to do so shall be deemed prima facie evidence of his
guilt.”




Commonwealth, Record No.  2580-04-1  (Oct.  3,  2005).    Gunn
now appeals from the judgment of the Court of Appeals.
Because we conclude the evidence was sufficient to
establish Gunn had possession of funds that came into her
custody by virtue of her official position and that she
knowingly misused or misappropriated the funds, we will
affirm the judgment of the Court of Appeals.
RELEVANT FACTS3
Gunn was employed as a teacher at Franklin High
School.    As part of her duties at the school, Gunn coached
the varsity cheerleading squad and consequently worked  “in
conjunction with” the athletic director and bookkeeper to
sell advertisements in the school’s football program to
local businesses and organizations.    Upon collecting
payment for an advertisement, Gunn was supposed to record
in a receipt book the name of the purchasing organization
or business and the amount of the advertisement.    Gunn was
then required to turn in the money received, along with the
receipt, to the school’s bookkeeper.
One of the advertisements Gunn sold was to Paul D.
Camp Community College  (the College).    Gunn did not collect
3 In accordance with the well-established principles of
appellate review, we will recite the evidence presented at
trial in the light most favorable to the Commonwealth, the
prevailing party before the circuit court.    Burns v.
Commonwealth,  261 Va.  307,  313,  541 S.E.2d  872,  877  (2001).
2




any money from the College when she sold the  $30
advertisement in the  2002 football program but agreed that
the College would be billed later.    Before an invoice was
sent to the College, Gunn received a check in her school
mailbox from the Commonwealth of Virginia in the amount of
$30.00, upon which the words,  “Paul D[.] Camp Community
College” were printed in small type.    The check was made
payable to Franklin High School, and the phrase  “C/O Robin
Gunn” appeared immediately below the school’s name.    Gunn
indorsed the check using her individual name and deposited
it in her personal account at a credit union instead of
turning it over to the school bookkeeper.
Subsequently, the school athletic director, using a
list compiled by Gunn, sent invoices to purchasers of
advertisements who had not paid.    The College received such
an invoice and informed Franklin High School that it had
already paid for its advertisement in the football program.
The College also provided a copy of its cancelled check.
Gunn’s indorsement appeared on the back of the check.    Upon
examining Gunn’s receipt book and determining that it
contained no corresponding entry for the  $30 payment from
the College, the Franklin High School principal reported
the matter to the school system’s superintendent.
3




In a meeting with school officials, Gunn admitted she
had cashed the check and offered to repay the  $30.    During
questioning by a City of Franklin police officer, Gunn
stated she  “thought the check was hers” and that it was a
“reimbursement check” received in connection with classes
she was taking at the College through Old Dominion
University.    Gunn also acknowledged to the police officer
that she had not recorded the sale of the football-program
advertisement to the College in her receipt book.
At trial, Gunn testified she had received the check in
her school mailbox and thereafter deposited it in her
account at the credit union.    Gunn gave this explanation
for her actions:
I didn’t know what it was.                                      [The check] just came to
me, it was a Commonwealth of Virginia check.    It  .  .  .
looked like something you’d get from your tax return.
And it didn’t say why I was receiving it.    And so I
just cashed it.    I just assumed  - at the time I had
been taking classes at Paul D. Camp.    I just assumed
that maybe I had overpaid my tuition.
In her defense, Gunn sought to introduce several
checks drawn on her personal bank account to establish that
she had expended her own funds to purchase items for her
students and cheerleaders.    Gunn claimed such expenditures
negated any suggestion that she would  “steal  $30 from the
school system.”    Finding the evidence not relevant, the
4




circuit court sustained the Commonwealth’s objection to the
admission of the checks.
On cross-examination, Gunn acknowledged the check in
question was made payable to Franklin High School and that
she fully understood the letters  “C/O” on the face of the
check meant  “care of.”    Gunn further admitted the check
came into her possession via her school mailbox and not at
her home address, and that her signature appeared on the
indorsement line on the back of the check.    Finally, Gunn
stated that, when the check was presented to her, she
“realized that it obviously wasn’t something that was
supposed to be for me.”
At the close of the Commonwealth’s case-in-chief and
at the close of all the evidence, Gunn moved to strike the
evidence.    In denying the motions, the circuit court
reasoned that  “[t]he proof required is that the defendant
used or disposed of the public funds in her charge knowing
that such use or disposition was a misuse or
misappropriation of the funds or not in accordance with the
law.”    The circuit court further found  “there was a knowing
use of these funds for misappropriation when those funds
were deposited into  [Gunn’s] checking account.”    Thus, the
circuit court found Gunn guilty and sentenced her to
incarceration for a term of two years, which the court
5




suspended, placing Gunn on supervised probation for a
period of two years.
In denying Gunn’s petition for appeal, the Court of
Appeals concluded Gunn had custody of the funds because she
actually possessed the check, indorsed it, and kept the  $30
when she cashed the check.    Gunn v. Commonwealth, Record
No.  2580-04-1, slip op. at  2  (June  9,  2005).    The Court of
Appeals also concluded the circuit court could reasonably
infer, from the evidence presented, that Gunn knowingly
misappropriated the funds.    Id. at  3.
ANALYSIS
On appeal, Gunn challenges the sufficiency of the
evidence to sustain her conviction and the circuit court’s
refusal to admit the checks drawn on her personal bank
account.    We will address the issues in that order.
With regard to the sufficiency of the evidence, Gunn
first argues that the Commonwealth failed to prove that she
had custody of funds belonging to or under the control of
the City of Franklin School System.    Gunn asserts that, by
merely having possession of the check payable to Franklin
High School, she did not have custody of funds belonging to
Franklin High School.    Citing Code  §  8.3A-403(a), Gunn
further reasons that her indorsement of the check was
ineffective to cause the drawer’s funds to be paid by the
6




drawee  (the payor bank) and that no funds of Franklin High
School were implicated because there was never a proper
indorsement of the check.    We do not agree with Gunn’s
argument.
As the Commonwealth points out, Gunn’s position
ignores the plain language of Code  §  18.2-112.    The statute
makes it a Class  4 felony for  “any  .  .  . employee of  .  .  .
any city, town, county, or any other political subdivision,
.  .  . having custody of public funds, or other funds coming
into his custody under his official capacity  [to] knowingly
misuse or misappropriate the same or knowingly dispose
thereof otherwise than in accordance with law.”    Code  §
18.2-112  (emphasis added).    In light of the emphasized
language, the Commonwealth was not required to prove that
Gunn had possession of public funds or funds belonging to
Franklin High School.    Nor did the indictment in this case
charge Gunn with knowingly misusing or misappropriating the
funds of Franklin High School.
Instead, the provisions of Code  §  18.2-112 are in the
disjunctive and plainly encompass two distinct situations  -
when a public employee has custody of public funds or when
a public employee comes into custody of  “other funds  .  .  .
under his official capacity.”    The evidence in this case
established Gunn’s conduct violated the latter portion of
7




the statute.    Gunn was an employee of the City of Franklin
School System.    The check for payment of the College’s
advertisement in the football program came into her custody
in her official capacity as a teacher and cheerleading
coach at Franklin High School, and she received the check
in her school mailbox.    Her official duties required her to
turn the check over to the school bookkeeper.    When she
failed to do so but instead indorsed the check and
deposited it into her personal account at the credit union,
she misappropriated the funds represented by the check.
Those funds were  “other funds” within the meaning of Code
§  18.2-112.    Whatever legal effect Gunn’s unauthorized
indorsement of the check had under the provisions of the
Uniform Commercial Code is irrelevant.    While the
provisions of Code  §  18.2-112 clearly apply only to certain
public officers, agents and employees, the statute just as
clearly addresses not only custody of public funds but also
“other funds” that come into the custody of those public
officials in their official capacity.
Although penal statutes are to be strictly construed
against the Commonwealth, Harward v. Commonwealth,  229 Va.
363,  365,  330 S.E.2d  89,  90  (1985), courts are nevertheless
bound by the plain meaning of unambiguous statutory
language and  “may not assign a construction that amounts to
8




holding that the General Assembly did not mean what it
actually has stated.”    Williams v. Commonwealth,  265 Va.
268,  271,  576 S.E.2d  468,  470  (2003); accord Alger v.
Commonwealth,  267 Va.  255,  259,  590 S.E.2d  563,  565  (2004).
Furthermore,  “the plain, obvious, and rational meaning of a
statute is to be preferred over any curious, narrow, or
strained construction.”    Turner v. Commonwealth,  226 Va.
456,  459,  309 S.E.2d  337,  338  (1983)(citing Tiller v.
Commonwealth,  193 Va.  418,  420,  69 S.E.2d  441,  443  (1952)).
To adopt Gunn’s position in this case would be tantamount
to deleting the language in Code  §  18.2-112 stating  “or
other funds coming into  [the public employee’s] custody
under his official capacity.”
Gunn, nevertheless, cites the decision in Ratliff v.
Commonwealth,  20 Va. App.  43,  455 S.E.2d  259  (1995), as
controlling authority for the proposition that the
Commonwealth had to prove she had possession of funds
belonging to Franklin High School.    There, the defendant,
Arvil Ray Ratliff, was convicted of misusing public funds
in his custody in violation of Code  §  18.2-112.    Id. at  45,
455 S.E.2d at  259.    Acting in his capacity as a member of
the Buchanan County Board of Supervisors, Ratliff signed
and submitted a voucher for mileage expenses he allegedly
incurred over a period of several months.    Id. at  45,  455
9




S.E.2d at  260.    The reimbursement check Ratliff eventually
received was issued by the county treasurer and was drawn
on the Buchanan County general fund.    Id.    The evidence
showed that Ratliff had no authority over that account and
could not withdraw funds from it.    Id.
The issue on appeal was whether the evidence was
sufficient to prove that Ratliff had custody of the funds
within the meaning of Code  §  18.2-112.    Id. at  46,  455
S.E.2d at  260.    The Court of Appeals concluded  “Ratliff did
not have custody of the county funds.”    Id.    The Court of
Appeals reasoned that Ratliff  “had neither physical
possession of the funds nor control over the means with
which to dispose of or  [disburse] the funds” because he did
not have personal control over the county’s general fund
account upon which his reimbursement check was drawn, he
could not draw funds from that account, and he could not
cause a check to be written on the account.    Id. at  48,  455
S.E.2d at  261.    In reaching its decision, the Court of
Appeals explained that, if a person charged with violating
Code  §  18.2-112 does not have physical possession of the
funds at issue,  “the term custody requires proof that the
person had the authority to dispose of or distribute the
funds.”    Id. at  47,  455 S.E.2d at  261.
10




Ratliff is inapposite to the case at bar.    There is no
question here that Gunn, unlike Ratliff, had  “custody” both
of the  $30 check and the funds represented by it.    The
issue raised by Gunn is whether the Commonwealth proved the
funds in her custody were public funds or funds of Franklin
High School.    As we have already explained, the
Commonwealth had to prove only that Gunn had custody of
“other funds” by virtue of her official capacity.4
In her challenge to the sufficiency of the evidence,
Gunn also argues that the Commonwealth failed to prove that
she knowingly misused or misappropriated the funds at
issue, i.e., that Gunn disposed of the funds knowing both
that they belonged to Franklin High School and that her
disposition of the funds was improper and not in accordance
with law.    Gunn asserts that the Commonwealth presented no
evidence inconsistent with her claim of mistake.    Relying
on Whitlow v. Commonwealth,  184 Va.  910,  37 S.E.2d  18
(1946), Gunn further contends that the circuit court had to
4 Gunn’s reliance on Gardner v. Commonwealth,  262 Va.
18,  546 S.E.2d  686  (2001), is also misplaced.    The issue
there was whether money obtained by false pretenses was the
property of a bank or property belonging to the defendant’s
grandfather as alleged in the indictment.    Id. at  19-20,
546 S.E.2d at  686-87.    As already stated, the indictment in
the case at bar did not allege that Gunn misappropriated
funds belonging to Franklin High School.
11




consider  “factors other than the check itself” in
determining whether she had the requisite scienter.
In Crider v. Commonwealth,  206 Va.  574,  145 S.E.2d  222
(1965), the defendant was convicted of knowingly misusing
or misappropriating public funds in violation of Code
§  18.1-110, the predecessor statute to Code  §  18.2-112.
Id. at  575,  145 S.E.2d at  223.    We discussed the criminal
intent necessary to sustain the conviction and explained,
“While the detention of public funds may be done with
fraudulent intent, the latter is not a necessary element of
the offense created by  §  18.1-110.”    Id. at  580,  145 S.E.2d
at  226.    A public official need not be  “prompted by a
criminal intent” in order to violate the statute.    Id. at
580,  145 S.E.2d at  227.    Instead, the proof required to
establish a  “knowing” misuse or misappropriation was  “that
the defendant used or disposed of the public funds in her
charge knowing that such use or disposition was a misuse or
misappropriation of the funds or not in accordance with the
law.”    Id.
Viewed in the light most favorable to the
Commonwealth, the evidence and all reasonable inferences
drawn therefrom establish that Gunn possessed the requisite
intent under Code  §  18.2-112.    Her own testimony showed
that she acted knowingly in her misuse or misappropriation
12




of the funds at issue.    Gunn admitted the check was made
payable to Franklin High School and that she understood the
meaning of the phrase  “C/O Robin Gunn” on the face of the
check.    Gunn initially stated she thought the check was
either a tax refund or a tuition reimbursement, but she
later admitted that she knew it was neither.    As the
circuit court noted, Gunn’s recognition that the check was
payable to Franklin High School is inconsistent with her
initial assertion that she assumed the check was a tax
refund or tuition overpayment.    Furthermore, she received
the check in her school mailbox, not at her home address,
and never recorded the payment from the College for its
advertisement in her receipt book.    Contrary to Gunn’s
argument, the circuit court considered several factors in
addition to the check itself in deciding that she knowingly
misused or misappropriated the funds.    While  “[t]here can
be no embezzlement where the property is taken  ‘under an
honest belief that  .  .  . the accused had a bona fide claim
of right to do so,’  ” Whitlow,  184 Va. at  918,  37 S.E.2d at
21  (citation omitted), no evidence in the case at bar shows
Gunn had an honest belief that she had a bona fide claim of
right to the  $30 check.
Our conclusion that Gunn knowingly misused or
misappropriated the funds is not altered by the fact she
13




included the College on the list of businesses that had not
paid for their advertisements in the football program or
because the check arrived unexpectedly in her school
mailbox before an invoice was sent to the College.    This
evidence created factual and credibility issues the circuit
court had to resolve as the fact-finder in this case.    See
Mercer v. Commonwealth,  259 Va.  235,  242,  523 S.E.2d  213,
217  (2000)  (within the province of the fact-finder to
assess credibility of witnesses).    The factual
determinations of the circuit court, like those of a jury,
are binding on this Court unless they are plainly wrong or
without evidence to support them.    Id. at  243,  523 S.E.2d
at  217.    We cannot say that the circuit court’s conclusion
that Gunn acted  “knowingly” was plainly wrong or without
evidence to support it.
Finally, Gunn assigns error to the circuit court’s
refusal to admit her personal checks showing expenditures
on behalf of her students and cheerleaders.    On appeal,
Gunn asserts the checks were admissible to show that she
was  “in the specific habit of spending her personal funds
for the benefit of her students and the school system  .  .  .
thus bearing upon the issue of the credibility of her
defense of mistake.”    The record, however, shows that at
trial Gunn did not argue the checks were evidence of her
14




“specific habit.”    Instead, she made the following argument
in response to the Commonwealth’s objection:
The relevance  .  .  . is that as a teacher she
would expend her own funds in excess of what she
was paid.    It’s contrary to the thought that she
would also then, at the same time, steal  $30 from
the school system.
Since Gunn failed to argue  “specific habit” in the
circuit court, we will not address the argument for the
first time on appeal.    See Rule  5:25; Buck v. Commonwealth,
247 Va.  449,  452-53,  443 S.E.2d  414,  416  (1994)
(defendant’s failure to raise certain arguments before the
trial court precluded him from raising them for the first
time on appeal).    Furthermore, we conclude that the circuit
court did not abuse its discretion in refusing to admit the
checks.    See Smith v. Irving,  268 Va.  496,  501,  604 S.E.2d
62,  65  (2004)  (“A court’s decision regarding the admission
or exclusion of evidence is discretionary in nature and,
thus, will not be overturned on appeal unless the record
shows an abuse of that discretion.”)    Gunn’s expenditure of
personal funds on behalf of her students and cheerleaders
was not relevant to whether she knowingly misused or
misappropriated  “other funds” that came into her custody in
her official capacity as a public employee.    Code  §  18.2-
112.
CONCLUSION
15




For these reasons, we will affirm the judgment of the
Court of Appeals.
Affirmed.
16

Download 1052242.pdf

Virginia Law