Petition — Coleman v. Virginia

‘ee preme Court, U. & “yd

FILED

| MAR /

IN THE _— ~osanepeemananel

Supreme Court of the United States

OCTOBER TERM, 1977

Barsara CoLeMAN, Petitioner,

v.

CoMMONWEALTH OF Vincini4, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF VIRGINIA

Leo R. Anprews, Jr.

1400 N. Uhle St.

Arlington, Va.

Counsel for Petitioner

Davin Carty WoL

815 15th St., N.W.

Washington, D.C. 20005

Of Counsel

33 (NS

Page

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Statutory provision involved ...........s.ssccsccssssscssssssssssserees 2

eens ur OE. osiiisdnianiebaiasadiinandateatetaianies 2

Reasons for granting the Wit ...........csscssesssssesssesssssseees 8

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CITATIONS

Cases:

Bain v. Commonwealth, 215 Va 89, 205 S.E. 2d 641

II” Uaceseadaniaiaceshaeadlt saat chdieesbdatdiiamediaiindiahinbatei iste aint 27

Heaton v. State, 56 ND 357, 217 NW 581 ..................... 27

Lee v. Commonwealth, 200 Va 233, 105 S.E. 2d 152

CE ARRRESER PEGI nerve sein var eere nc ns ers SD CUO 17

Revell v. Commonwealth, 215 Va 708, 213 S.E. 2d 756

TI, iateesdiccensieeesneieliabteadineeiladaaiaiadablhieat ce ienleh tas enetedeaiaeadans 17

Wadley v. Commonwealth, 98 Va 803, 35 S.E. 452

IIIT chia iacannhahaietaibae hea temehatiatiadesdiiaaaiatdinsaadaeddiniisaeiae 25

Webb v. Commonwealth, 204 Va 24, 129 S.E. 2d 22

STITT sicetcheinsinhadnihtichibbiinaesacinaniditase dadanibideaddbiomiaceens 17, 26

Whitlaw v. Commonwealth, 184 Va 910, 37 S.E. 2d 18

RRR erertm ere ere rane ie Nea REE eRe 25

Miscellaneous :

I 25

I le 25

FG IERIE PCRS eee AEN RDO OCOD 16

a a a ccnminnenissbaiminunbende’ 27

APPENDIX

Appendix A—Judgment of the Supreme Court of

Virginia of January 23, 1978 ..........ccccccsssscescsrescssecseeees 29

Appendix B—Denial by Supreme Court of Virginia of

RE nT 31

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

Bs cctiiinabillineiaaiiniiins

BarBara Coteman, Petitioner,

Vv.

CoMMONWEALTH oF Virern14, Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF VIRGINIA

The petitioner Barbara J. Coleman respectfully prays

that a writ of certiorari issue to review the judgment of.

the Supreme Court of Va. entered in this proceeding on

January 23, 1978.

JURISDICTION

The judgment of the Supreme Court of Va. was en-

tered on January 23, 1978. A timely petition for rehearing

was denied on March 3, 1978, and this petition for certiorari

was filed within 90 days of that date. This Court’s juris-

diction is invoked under the provisions of the Fifth, Sixth

and Fourteenth Amendments to the U.S. Constitution.

QUESTION PRESENTED

Whether the evidence against petitioner was sufficient td

show that she embezzled petty cash funds from her em-

ployer. If not, petitioner was wrongfully convicted in

violation of her rights under the Fifth, Sixth and Four-

teenth Amendments to the U.S. Constitution.

2

STATUTORY PROVISION INVOLVED

Section 18.2-111 Code of Virginia, 1950, as amended.

Embezzlement and Fraudulent Conversion

Embezzlement deemed larceny ; indictment ; Statement from

attorney for the Commonwealth.

If any person wrongfully and fraudulently uses, disposes

of, conceals or embezzles any money, bill, notes, 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, principle or bailiff 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 deemed guilty

of larceny thereof and may be indicted as for the larceny,

and proof of embezzlement under this section shall be suffi-

cient to sustain the charge. On the trial of every indictment

for larceny however, the defendant if he demands it shall

be entitled to a statement in writing from the attorney for

the Commonwealth designating the statute he intended to

rely upon to ask for conviction. Code 1950 18.1-109 (1960)

Ch. 358 1975 ce 14, 15.

STATEMENT OF THE FACTS

Petitioner, Barbara Coleman, was convicted of two counts

of grand larceny embezzlement in Criminal Numbers C-11,

302 and C-11, 303 after a jury trial in Arlington County

Circuit Court.’ Upon her convictions of the above two

The indictment in C-11, 302 read that between the dates of

April 1, 1975 and September 30, 1975, . . . Barbara Coleman did

wrongfully and fraudulently use, dispose of, conceal or embezzle

money having a value of $100.00 or more, which she had received

“3

charges, she was sentenced to imprisonment for six months

and a $1000.00 fine for each charge. It is from these two

convictions that petitioner takes this appeal.

References will be to the transcript made before the

trial court (Tr.).

The main witness for the prosecution was Lee Sims, the

President of the Arthur Murray Studio. He testified that

during the period covered by the two indictments, Barbara

Coleman worked for the studio as a bookkeeper. (Tr. 3-5).

He described her duties as ‘‘taking care of the books . . . and

whatever was to be done, whatever was to take to Silver

Spring.’’ (Tr. 5). She was also responsible to take care

of the ‘‘petty cash and the cash box.’’ (Tr. 6). Mr. Sims

stated that Arthur Murray Studio in Arlington also had a

studio in Silver Spring, Maryland and a subsidiary in

Bethesda, Maryland. (Tr. 4). In describing the petty cash

setup, Mr. Sims stated that receipts were required to

account for disbursements from the petty cash. (Tr. 7-8).

Studio checks were cashed, and the money would then go

into the petty cash box. (Tr. 9). He stated that he and his

wife had permission to sign such checks, and that Mrs.

Coleman was also given approval for signing such checks.

(Tr. 10-11). He admitted that he never reviewed the bank

statements from the bank concerning the checks, nor both-

for her employer by virtue of her employment by Amsod of

Arlington, Inc., trading as Arthur Murray School of Dancing of

Arlington—a violation of Section 18. 1-109, Code of Virginia, 1950,

as amended. The indictment in C-11, 303 read the same, except the

dates for the period of the alleged embezzlment were from October

1, 1975 to March 2, 1976. Also, the violation alleged was Section

18. 2-111, Code of Virginia, 1950, as amended.

+

ered to check the receipts concerning petty cash dispersal.

(Tr. Ll, 245-246).

Mr. Sims stated that the studio had Tuesday night cham-

pagne parties and ‘‘regular staff parties’’ on Fridays. (Tr.

12). He also stated that generally there were prizes given

‘and which we had to purchase.’’ (Tr. 14). Although he

couldn’t estimate what an amount of money would be spent

for Tuesday night parties, he approximated that ‘‘some-

where around $18.00 to $20.00 was spent on Friday Nights.”’

(Tr. 15-16). He also testified as to additional parties at

the studios during the Spring and Fall Festivals. (Tr. 16).

There were also other nights when the staff would get

together to ‘‘make plans for our party, which would be

in May, and we would be discussing the parties, the different

parties that we were going to hold and then the different

meetings which were to be held mostly on a Wednesday

night, and that would be mostly with the staff but also

some food, some small things were purchased, like things

from G.(W). (sic.) Murphy were also purchased .. .’’ (Tr.

18-19).

Over rigorous objections, which was initially sustained,

(Tr. 22-25), Mr. Sims was allowed to testify as to the

amount that petty cash expenditures increased (in percent-

age figures) when Mrs. Coleman became a bookkeeper.’

According to Mr. Sims, however, after Mrs. Coleman left,

the increase in petty cash increased even further to 150

percent. (Tr. 25).

Mr. Sims was then shown a number of receipts attached

2 Mr. Sims testified that there was ‘‘an increase of over a hundred

percent.’’ (Tr. 25).

D

to carbons of checks representing checks written by Mr.

Sims, Mrs. Sims and Barbara Coleman, legally signing

Mr. Sims’ name, to provide money for the petty cash

funds. Mr. Sims then proceeded, through 188 pages of

transcript, to review the petty cash receipts, attempting to

identify what they were, and in some cases, concluding

whether certain receipts were ‘‘legitimate’’ or ‘‘illegiti-

mate.’’ (Tr. 31-219). He admitted on cross-examination,

however, that he was away from the Arlington Studio most

of the time, and never bothered to look at the petty cash

receipts. (Tr. 245-246).

Upon his later testimony, Mr. Sims indicated further

that the first time he examined the petty cash receipts was

with his accountant, when he suspected something was wrong

and asked his accountant to bring from Houston the carbons

of the checks with the receipts attached. He and the account-

ant then disassembled the receipts and re-arranged them as

to ‘‘illegitimate,’’ stapled in front of the checks, and ‘‘legiti-

mate,’’ stapled in back of the checks. He repeated the same

procedures when reviewing them with the prosecutor,

thereby further re-arranging the receipts. (Tr. 483-484).

Mr. Sims’ tesimony was eventually followed by the testi-

mony of Mrs. Judy Sims, Lee Sims’ wife. She testified that

she was an officer of the Arthur Murray’s Studio Corpora-

tion, ie. Secretary. (Tr. 323). She described her duties at

the school as training the dance instructors, being ‘‘re-

sponsible for the scenery in the studio . . . and for some 70

or 80 students.’’ (Tr. 339). She testified that the studio

had Tuesday night and Friday night parties, (Tr. 340) and

in connection therewith food and beverages would be pur-

chased—the food being mainly purchased at Grand Union.

(Tr. 341-342). She stated that the champagne was purchased

6

at the Safeway Store on Wilson Boulevard and other

‘‘random places’’ on Wilson Boulevard. (Tr. 349). She

admitted that several of the studio parties were on Satur-

days. (Tr. 350). Different staff members would make the

different purchases for the studio parties, as well as office

and decorations purchases. (Tr. 350-351). In reference to

the petitioner, Mrs. Sims stated that Mrs. Coleman ran

errands for the studio and used her car to do so. Mrs.

Coleman’s main errands were to make the bank deposits.

(Tr. 352). She also picked up Lee Sims’ prescriptions at

Peoples Drugs. (Tr. 353). Mrs. Sims testified that she

herself made purchases for the studio. (Tr. 353-354).

A number of other witnesses testified for the Common-

wealth. Robert Daymde, a Coca Cola route salesman, (Tr.

268), testified that he regularly delivered Cokes to the studio

and placed them in a vending machine located in the studio.

(Tr. 268-272). He stated that Mrs. Coleman would then pay

him for delivering the Coca Cola. (Tr. 272). He identified

one of the Coca Cola receipts, previously shown to Mr.

Sims, as an example of a paid receipt he would have given

to Mrs. Coleman. (Tr. 270).

Six present or former employees of the Arthur Murray

Studio in Arlington testified for the Commonwealth. Each

of them knew petitioner as the bookkeeper at Arthur

Murray Studio. Generally, they testified that they made

various purchases for the studio, presented receipts for the

purchases and were reimbursed from petty cash by Mrs.

Coleman. These witnesses were Charlton G. Bradshaw,

Elizabeth Harrison, Gina Viglous, William A. Stufflebeen,

Carol Baker and Thomas Snow.

The Commonwealth also presented the testimony of

7

several persons from stores in the Arlington area, who were

shown receipts introduced into evidence from their respec-

tive stores. These store representatives, by codes contained

on the receipts, were able to identify what the purchased

items were. The stores involved were Pier I, Best Products,

Hecht Co., and Sears. The items included women’s clothing

and apparel, (Tr. 421-427) jewelry, (Tr. 417-420) and hard-

ware supplies, (Tr. 505-513).

After the Commonwealth rested its case, the defense

moved to strike, based on the insufficiency of the evidence to

prove that petitioner had embezzled from her employer.

The motion was denied.

The defense presented the testimony of Mr. Jay Haas

(sic).* Mr. Hawkes testified that he met Mrs. Coleman while

both were employed at the Arthur Murray Dance Studio in

Arlington (Tr. 514-515), and that she was ‘‘the most im-

portant support employee of the staff.’’ (Tr.516). While Mrs.

Coleman was still employed at the Arlington Studio, Mr.

Hawkes moved to the Silver Spring studio. (Tr. 517). He

still maintained connection with the Ariington studio, how-

ever, because he ‘‘was the director and instructor for all

of their activities because we did team-up at parties and

contests and we would come in once in a while, we would

come in and join them and we would be at the Arlington

studio... and combine our parties.’’ (Tr. 518). In reference

to the Tuesday night parties, Mr. Hawkes stated that ‘‘there

have been champagne parties on Tuesday night for guests,

and they would bring friends for trial lessons, and the

students themselves would hold the dance instructions and

teach a little bit and do a bit of dancing and lessons them-

a

5 His actual name is Jay Hawkes.

selves, and there would be food and champagne to enjoy.’’

(Tr. 520). He also testified that he made various purchases

for the studio, such as refreshments, decorations, prizes,

supplies, and records. (Tr. 525). He also testified that he

was compensated for his gasoline for running errands for

the Arthur Murray Studio. (Tr. 523-533).

After resting his case, counsel for petitioner then renewed

his motion to strike for insufficient evidence, which motion

was denied.

REASONS FOR GRANTING THE WRIT

The decision of the Supreme Court of Virginia upholding

petitioner’s conviction in this case on evidence clearly in-

sufficient to establish her guilt violates her fundamental

rights under the fifth, sixth and fourteenth amendments of

the U.S. Constitution.

The trial judge erred in holding that the evidence was

sufficient to convict petitioner of grand larceny embezzle-

ment.

The main thrust of the Commonwealth, in its contention

that petitioner embezzled petty cash funds of Arthur

Murray Studio, was that many receipts covering purchases

made from petty cash funds were phony receipts—not rep-

resenting legitimate purchases connected with the mainten-

ance and operation of the studio. The Commonwealth relied,

as its sole source of proof in that regard, on the testimony

of Mr. Lee Sims, the President and owner of the Arthur

Murray Studio. Mr. Sims, throughout his testimony, did

little more than read each receipt shown to him as to the

amount of the receipt and identified the store involved.

Often he showed that he had no idea what the receipts were

9

for. For example, Mr. Sims testified in regard to Drug

Fair receipts:

‘** All right. One, that one is for $11.20; another one

for $11.95; another Drug Fair receipt, and this is for—

another one which is right after the other one—another

one for $8.05. I don’t know where it came from.’’*

(Tr. 36).

On other receipts, petitioner often merely added that they

were illegitimate without any further explanation. In regard

to several G. C. Murphy receipts, Mr. Sims was asked by the

prosecutor ; ‘‘ Now are all the receipts that are in your hand,

you claim them to be invalid?’’ To which, Mr. Sims replied,

‘‘That’s correct.’’ At another occasion, in identifying Com-

monwealth’s Exhibit B as being illegitimate, Mr. Sims

stated ;

‘*What is Exhibit B? This is a bad one, and that is

about it. There is nothing to indicate what the money

was used for. It just says visitor’s expenditures.’’

(Tr. 45).

In regard to a Coke machine receipt for Cokes placed in

the studio Coke machine, the trial judge asked Mr. Sims why

he considered the receipt ‘‘bad.’’ Mr. Sims gave the incred-

ible answer that ‘‘(T)here is nothing to indicate what it is

for, whether it is for business or not.’’ (Tr. 52).

In fact, after the lunch break and before Mr. Sims con-

tinued his testimony, the trial judge indicated that Mr. Sims

testimony to that point had not proven ‘‘any larceny here,”’

because of the conclusionary nature of Mr. Sims’ testimony,

such as ‘‘we don’t buy this from Peoples and we did buy

* See also Tr. 40 (Hair Shop) ; 41 (Grand Union) ; 44-45 (Drug

Fair) ; 48 (Peoples Drug) ; 133 (Grand Union).

10

some, but then there is some crepe paper that was bought.’’

(Tr. 54-55). The judge was also troubled that in some cases

not only could Mr. Sims not say with particularity why the

receipts were ‘‘bad,’’ but he could not identify what some

receipts were. The Judge stated:

‘* And, for example, here you have 5-F,, and you don’t

know where that was from and—how ‘re you going to

say where that is from?’’ (Tr. 56).

The following colloquy between the prosecutor and the

Court then took place:

MR. MELSON: Well, I can show that the checks were

invalid. Now, looking further to the Fourth Circuit, .. .

and that is in connection with reasonable evidence

which may be admissible to the discrepency of embezzle-

ment, but the evidence will show that the employment is

admissible because it is the only way to show the em-

bezzlement until we have all of our witnesses.

THE COURT: Yes, but he is the witness for that and

his testimony is not good enough.

MR. MELSON: But that is not the only witness, that is

not all of the evidence that I have.

THE COURT: But I don’t know, you don’t know who

the receipts are and all it does is to show and state the

amount, so—how are you going to say, what are you

going to say about that? (Tr. 57-58).

Despite the Court’s misgivings concerning the adequacy

of Mr. Sims’ testimony, Mr. Sims continued, in his ‘‘run-

down’’ of each receipt, to read each receipt, stating in some

cases they were ‘‘bad’’ or ‘‘illegitimate.’’ ®

Seg. Tr. 77-78; Tr. 82:

Q. And what does that indicate on that receipt?

A. I don’t know, but. . . is $2.84 and ... the 5th of June, 1975.

ll

The unreliability of Mr. Sims conclusionary testimony

showed through in several ways as the trial developed. First

of all, it became clear that Mr. Sims had very little touch

with the day to day operation of the Arlington studio,

particularly the purchasing of food, beverages and supplies.

For instance, when asked by the prosecutor about a Giant

Food receipt for $32.96, Mr. Sims responded that ‘‘it would

be more than we would spend for a party at that particular

time and which we would have bought everything.’’ He

further added, however, ‘‘It is a guess, I know, and I am

not even sure that we would shop there, but it would be

more than we would spend for one of our parties. (Tr. 156-

157). The Court then asked: ‘‘How do you know where you

THE COURT: What is wrong with it?

THE WITNESS : It is on a Saturday.

THE COURT: Well, you don’t know?

THE WITNESS: I don’t know. (Tr. 105).

Q. Would you go on, please?

A. Yes, (b) Exhibit (b) is $1.55, that is for Lerner’s Shop.

Do you want me to say it is unauthorized?

THE COURT: You tell me if it is unauthorized.

THE WITNESS: Well, I don’t buy ladies apparel or hosiery.

THE COURT: Well, it is hosiery?

THE WITNESS: Well, whatever they sell, whatever they sell

at Lerner’s Shops, I have no need for it. (Tr. 105).

Also Tr. 128, 133 (Grand Union) ; 151 (Safeway) ; Tr. 155:

‘*Exhibit (m)—well, it looks to me like it might be an illegiti-

mate receipt from Virginia Hardware’’.. .

A. Here they are for keys for $2.98, and then there is $3.33,

so that would be for doors, or it looks like the whole thing

came out to $13.33.

THE COURT: Have you any personal knowledge?

THE WITNESS: I have no personal knowledge.

THE COURT: You have no ideas, none at all ?

THE WITNESS: No, none whatsoever. (Tr. 154-155).

Also see Tr. 189, 193, 238.

12

would shop?’’ Mr. Sims responded; ‘‘Well, generally we

would shop in the area. I don’t know, because the employees,

not being—they would go together and pick up whatever I

wanted and whatever liquor. Also, they would go to the

closest place that they can get.’’ (Tr. 157). He admitted he

didn’t go out to purchase food for the studio and that he

did not ‘‘on a regular basis’’ purchase other items, such as

liquor. (Tr. 229). He also admitted the janitor often went

out for studio supplies, and that Mr. Sims didn’t know

where he went to get them. (Tr. 240). He admitted that he

never bothered to review the receipts and daily expenditures

from the petty cash fund. He added that ‘‘I never noticed

whether there was a problem or not. I was running three

schools at the same time.’’ He admitted that he was out of

the Arlington school most of the time. (Tr. 246).

Secondly, Mr. Sims’ testimeny concerning studio pur-

chases was contradicted by other witnesses on a number of

occasions. For instance, Mr. Sims, in reviewing receipts,

particularly involving food and drink purchases, ‘‘disal-

lowed’’ such receipts when purchased on Saturdays, or any

other day except Tuesdays or Fridays when they had their

regular studio parties. For instance, Mr. Sims testified at

one point on direct examination:

‘*Well, I would say this is from Safeway, this is a

Safeway receipt for $10.96. I would say that was from

the 17th of May, that would have been on a Saturday,

and we have no reason to have a transaction on a

Saturday.’’ (Tr. 62).

At another point he stated ‘‘. .. we do not do anything from

our business on Saturday.’’ (Tr. 73). In reviewing another

receipt dated September 13, 1975, Mr. Sims stated, ‘‘ Your

Honor, again this is on a Saturday—I don’t know.”’ (Tr.

13

145). On cross-examination, he stated, ‘‘ We do not buy food

at Grand Union on Saturday,’’ and that as ‘‘a general rule’’

no food was bought on Thursday. However, Mr. Sims was

then shown a food receipt for Thursday, April 3, 1975,

identified by Miss Gina’s handwriting as being her purchase.

(Tr. 257). Since Miss Gina regularly purchased food for

the studio, (Tr. 101-102; 230), Mr. Sims had to accept that

receipt as ‘‘legitimate.’’ (Tr. 257). He also had to accept

as ‘‘legitimate’’ another Thursday Grand Union food re-

ceipt, since it had his handwriting on it—that receipt was

also torn—a factor that seemed to convince Mr. Sims that

other receipts were ‘‘illegitims.te.’’ (Tr. 280-281; 46; 51-52).

He was shown another Grand Union food receipt, with Miss

Gina’s handwriting on it, for Wednesday, April 16, 1975.

He had to reconsider it as ‘‘legitimate’’ because it had her

handwriting on it. (Tr. 281-282). He was then shown another

Thursday food receipt (April 10th), and asked whether he

considered the receipt to be ‘‘legitimate’’ or ‘‘illegitimate.’’

He responded, ‘‘I don’t have the least idea.’’ Another

Thursday food receipt was shown to him (April 17th) and

he concluded that the receipt was ‘‘borderline.’’ (Tr. 282-

283).

In regard to Saturday studio purchases that Mr. Sims

testified never were made, his wife, Judy Sims, admitted

that the studio operated on Saturdays, and that purchases

were made if there was a party. (Tr. 350). She denied that

the staff would make studio purchases on Saturdays. (Tr.

350). However, Mr. Bradshaw, called as a Commonwealth

witness, went much further in his testimony about Saturday

purchases. He testified on direct examination that ‘‘there

were other times on a Saturday and then sometimes on a

Sunday we would usually get together and food would have

14

to be purchased on a Saturday.’’ (Tr. 387). He also testified

about Wednesday parties and D.U. (Destination Unknown)

parties on Friday and Saturday nights.* (Tr. 402). Mr.

Bradshaw’s testimony, it is submitted, is particularly reli-

able since he was an assistant manager under Mr. Sims at

the Arlington studio and ‘‘purchased everything’’ for the

studio, including liquor, champagne, food, hardware sup-

plies, ete. (Tr. 385-386). Mrs. Elizabeth Harrison, the night

receptionist, remembered decorations purchased on Satur-

days (Tr. 414) ; another reliable witness, Gina Viglous (Miss

Gina), the person who regularly purchased food and drinks

for the studio, testified as to purchases on Saturdays, ‘‘be-

cause we have some parties there on Saturday.’’ She also

admitted, contrary to Judy Sims, that staff rallies took place

on Saturdays when beer would be purchased. (Tr. 438).

William Stufflebeen, another dance instructor, also testified

as to Saturday food purchases for special parties. Tr.

444-445).

On several occasions, Mr. Sims’ testimony was incon-

sistent within itself. At one point he is shown a Peoples

Drug receipt, and asked what items the studio would pur-

chase there. He responded that ‘‘the main thing that would

be purchased would be paper or something like that, and I

myself personally would not purchase any of these items.

Mrs. Coleman would have made that purchase for me.’’

(Tr. 48-49). At another point, he states that he can’t think

of anything that would have been purchased from Peoples

Drug. (Tr. 53). It was this inconsistency that the Judge

commented upon in his remarks to counsel outside the

* He also testified about studio picnics and outings for 90 people,

and cookouts ‘‘in the parking lot.’’ (Tr. 402, 396).

15

presence of the jury. (Tr. 54). At one point, the prosecutor

showed Mr. Sims a particular check made out for petty cash

and asked him if his signature was on the check. He said no.

He was then asked ‘‘about the signature on any of those

checks (all of the other numerous petty cash checks in

evidence). He stated ‘‘not authorized.’’ But when the Court

asked him ‘‘ Are you saying now that you did not authorize

your signature to be used?’’ Mr. Sims quickly admitted that

‘*T would have to say—because I did authorize Mrs. Cole-

man to go ahead and write my signature.’’ (Tr. 59-60).

Another interesting feature of Mr. Sims testimony, which

points out the vague and arbitrary character of the testi-

mony, was his sitting down, first with his accountant and

then with the prosecutor, months after Mrs. Coleman had

left his employ, to review all the receipts from April 1975,

to March 1976, and decide which receipts were ‘‘legitimate,’’

‘‘illegitimate,’’ or ‘‘borderline.’’ (Tr. 308-310; 483-484). On

cross-examination, concerning his ‘‘selection process,’’ he

was questioned about receipts from Giant Food. It was

pointed out to him that some Giant Food receipts were in the

‘‘legitimate’’ pile (stapled to the front of the petty cash

check carbons) and others were in the ‘‘illegitimate’’ pile

(stapled to the backs of the check carbons). He responded:

‘*Yes, some of them are considered good and some of

them are considered borderline and some of them are

considered impossible.’’

When asked how could he make these distinctions, he

replied :

‘*By —.e amount, the date, the fact that we don’t always

purchase for parties every week and at much less than

the checks have been written two days apart, two days

apart on each one of them.’’

16

(Tr. 285). This is the ‘‘authoritative’’ testimony from one

who was hardly at the Arlington studio, (Tr. 246) who had

earlier responded that he wasn’t sure whether his employees

shopped at Giant (Tr. 156-157), and that he wasn’t sure how

much was spent for the Tuesday guest parties. (Tr. 14-16).’

His wife, Judy Sims, added very little to show that Mrs.

Coleman had embezzled the petty cash funds. She admitted

she never bothered to look at the petty cash checks with the

receipts attached for any irregularities before she signed

the checks.* (Tr. 332). In fact, incredibly, she testified that

she never knew that her husband gave Mrs. Coleman author-

ity to sign his name to checks—which Mrs. Coleman was

doing, not only for petty cash checks but for payroll checks

—in order to get the employees paid on time. (Tr. 356, Tr.

225-226). Mrs. Sims explained that ‘‘whenever we have a

bookkeeper, I try as much as possible, I try to stay away

from that part and I don’t have anything to do with the

bookkeeper.’’ (Tr. 356).

As stated in 26 Am Jur 2d, Sec. 48, ‘‘the burden of proof

at a trial for embezzlement rests, as in other criminal cases,

upon the prosecution to establish every material allegation

against the defendant beyond a reasonable doubt. . . . The

law presumes a defendant on trial to be innocent of an

embezzlement alleged, and nothing is presumed or taken

by implication against him.’’ (At p. 601). To constitute the

statutory crime of embezzlement, it is necessary to prove

that an accused wrongfully appropriated to his own use or

7 When asked by the prosecutor what was spent for the parties,

he testified that he couldn’t ‘‘check that because there is no approxi-

mate as to the cost.’’ Tr. 15).

§ Mr. and Mrs. Sims had the authority to sign the studio checks.

(Tr. 10).

17-

benefit, with the intent to deprive the owner thereof, the

propery of another which has been entrusted to him by

reason of his employment or office. (emphasis added).

Revell v Commonwealth, 215 Va. 708, 213 S.E. 2d 756, 757

(1975) ; Webb v Commonwealth, 204 Va. 24, 34, 129 S.E. 2d

22, 30 (1963) ; Lee v Commonwealth, 200 Va. 233, 235, 236,

105 S.E. 2d 152, 154 (1958). It is submitted that the Com-

monwealth has failed to prove that petitioner converted

petty cash funds to her own use. The Commonwealth has

failed to prove that the ‘‘illegitimate’’ or ‘‘borderline’’

receipts were Mrs. Coleman’s receipts and that she placed

these receipts in the petty cash account to cover up a conver-

sion of the funds. With the exception of two gasoline

receipts with her license tags written on the receipts (Tr.

108-110), (Tr. 149), the Commonwealth failed to show that

petitioner supplied any of the receipts in evidence. One

woman from Discount Drugs testified that she had seen

Mrs. Coleman several times in Discount Drugs but thought

that it had been recently—within the last four or five

months from the date of her testimony (She testified on

April 7, 1977). Barbara Coleman had left the employ of

Arthur Murray Studio in early March 1976. (Tr. 316, Tr.

5).° Furthermore, a great number of the ‘‘illegitimate’’

receipts were food and beverage receipts. Most of those

receipts were from Grand Union, the place where employees

of Arthur Murray Studio frequently shopped for the studio

parties and staff meetings. (Tr. 429, 447). There were also

receipts from several grocery stores in the area, including

Safeway, A & P, and Giant. Champagne was often bought

at both Safeway and Grand Union ‘‘and other random

® She also testified that Mrs. Coleman was not a regular customer,

and had seen her four or five times. (Tr. 317-318).

18

places on Wilson Boulevard.”’ (Tr. 349, 446). Mr. Bradshaw,

the Assistant Manager at the Arlington studio when peti-

tioner worked there, remembered that on Tuesday evenings

‘‘between $20.00 and $35.00 would be spent on champagne

for the guest parties. He added that ‘‘we had pretty good

guest parties.’’ (Tr. 386). Mr. Bradshaw further stated that

food was bought for Friday night, ‘‘sometimes for the staff

if we had a get-together,’’ that there were other times ‘‘ food

would have to be purchased on a Saturday,’’ and that during

the two promotional times of the year ‘‘there was about

$50.00 worth of food . . . depending on the size of the party,

some $60.00 worth or even $40.00 worth of food.’’ (Tr. 387).

He also mentioned going over to a Giant store in the area

for ice.’ (Tr. 398) Miss Gina testified that just for the

Tuesday night parties, anywhere from $40.00 to $50.00

would be spent for the food. (Tr. 433). Certainly, all of the

grocery receipts determined ‘‘illegitimate’’ by Mr. Sims

were consistent with the amount of grocery shopping done

by various persons for the studio for their parties, festivals,

staff meetings, outings and what-not.

In regard to the Coca Cola receipts, the Commonwealth

totally failed to show that these receipts were ‘‘illegiti-

mate.’’ The Coca Cola salesman testified that most of the

time he would hand Mrs. Coleman a bill for the cases of Coke

that he had just placed in the studio Coke machine. She

would then pay him the total amount of the bill, assumedly

from petty cash, and he would leave the bill with her as the

receipt. Most of the time he would not touch the money in the

machine, so that, assumedly, Mrs. Coleman would later place

10 Mr. Sims admitted there was food bought by the studio from

Giant. (Tr. 285).

19

the money from the Coke machine into the petty cash box.

Once in a while, when she was too busy, she would ask him

to get the money and bring it to her. He would ds so, but

what she did with that money, he couldn’t say. All he knew

was that he was paid what was owed to him. (Tr. 272-273,

276-277). At certain times he would add the rental cost on

the bill, and of course the money to pay that had to come

out of petty cash. (Tr. 274-275). Certainly, if she were plac-

ing the money from the Coke machine into petty cash to

reimburse it, and there was no evidence to say she was not,

there was no wrongful conversion of money.

There were a number of receipts from G. C. Murphy’s.

Murphy’s was very close to the studio and easily accessible

to all of the staff. (Tr. 399, 448-449). It was also clear from

the testimony that a variety of items were frequently bought

from Murphy’s, including office supplies, pencils, pads,

prizes, and decorations. Mr. Bradshaw, who now heads up

the Bethesc> Arthur Murray Studio and has been associated

with Arthur Murray as a ‘‘dance instructor, director, coun-

selor, and assistant manager’’ (Tr. 385-386), stated that he

‘‘used to decorate the studio, quite frequently, at the ten-

cent store (G. C. Murphy) and Hechts.’’ (Tr. 399). Mrs.

Elizabeth Harrison remembered that the studio staff bought

‘*streamers of all kinds, all kinds of gimmicks and things like

that.’’ She added, ‘‘it seems to me that they were always

decorating’’ and that decorations were obtained from vari-

ous places. (Tr. 413-414). Mr. Stufflebeen purchased door

prizes at Murphy’s and ‘‘ali kinds of garbage.’’ (Tr. 448).

In view of the above mentioned testimony, it borders on the

ridiculous for Mr. Sims to ‘‘disallow’’ receipts from G. C.

Murphy—even receipts as small as 73 cents. (Tr. 146-147).

From the testimony of several of the employees, it was

20

also clear that the petitioner purchased prescribed medi-

cines for Mr. Sims—particularly at Peoples Drug on Wilson

Boulevard. Mrs. Sims so stated (Tr. 353) as did Mr. Brad-

shaw (Tr. 394-395). Although Mr. Sims stated he paid for

the drugs out of his pocket, there were a number of drug

receipts from Peoples in petty cash. (Tr. 294-295). It should

be kept in mind, however, that Mr. Sims also was reimbursed

from petty cash for his beers and food at Keyhole Restau-

rant and Little Dell Restaurant, as well as a personal trip

to Forth Worth, Texas. (Tr. 343, 344, 302)."’ Mr. Sims also

admitted that paper supplies may have been purchased at

Peoples. (Tr. 49).

It is also clear from the testimony that hardware supplies

for the maintenance of the studio had to be purchased. Mr.

Sims admitted that the janitor would buy maintenance

supplies for the studio, and that Mr. Sims didn’t know where

the janitor went to buy these supplies. (Tr. 240). Initially,

Mr. Sims answered, when asked whether there were any

receipts from Sears which were authorized, ‘‘i would say

probably not.’’ In the next breath, however, he admitted that

Mr. Stufflebeen went to Sears to buy some supplies. (Tr.

293). He admitted that ‘‘at one time”’ studio floodlights were

purchased at Sears. (Tr. 293-294). In fact, the Common-

wealth had to withdraw several of the ‘‘illegitimate’’ Sears

receipts '? which reflected studio maintenance supplies. (Tr.

508-510). Such flip-flopping by the Commonwealth as what

11 When asked about the trip to Fort Worth, Mr. Sims responded,

‘*T believe I have the right to take money from the corporation.’’

(Tr. 302).

12 Tnitially dubbed ‘‘illegitimate,’’ of course, by Mr. Sims.

21

may be legitimate, borderline, or illegitimate receipts shows

the tenuous nature of their evidence.”

In regard to other receipts from Pier I, Evans Jewelers,

and other stores, it was also established in the Common-

wealth’s case that prizes in connection with studio parties

were bought—some expensive and some cheap. Mr. Sims

admitted prizes were purchased by the studio and that he

sometimes gave checks for their purchase. (Tr. 243-244).

He admitted that his wife purchased a door prize at Pier I

on One occasion,* and that other purchases, particularly a

camera and record album were purchased at Evans Jew-

elers.° (Tr. 287). At first hand he denied jewelry was

bought, but then when he was shown receipt from the

‘‘legitimate’’ pile for $20.00 for two rings from Steins, next

door to the studio, he conceded that the receipt may be

‘“borderline,’’ because it was purchased ‘‘right near our

victory party.’’ (Tr. 287-288). Mrs. Sims testified that if any

of the instructors had a need to purchase jewelry, they

would get the money from petty cash. (Tr. 358). Jay Hawkes

also mentioned that prizes were bought. (Tr. 525).

There were a number of ABC liquor receipts, most of

which were considered by Mr. Sims to be ‘‘legitimate.”’

There was abundant testimony that a jot of liquor was

bought during the year, particularly on Friday nights. (Tr.

‘8 The prosecutor removed from further consideration one receipt

as being ‘‘ possible’’ (legitimate). (Tr. 509).

14 Miss Gina also recalled going to Pier I on one occasion for

decorations. (Tr. 435). Mrs. Harrison testified the staff would go

to Pier I for studio decorations. (Tr. 414). Pier I was located just

behind the studio. (Tr. 383).

** Mr. Sims had earlier testified that he had never authorized

any purchases from Evans. (Tr. 166-167).

22

429, 386). Yet Mr. Sims ‘‘disallowed’’ any liquor purchases

in D.C., despite the fact that several instructors bought

liquor for the studio in D.C.—across Key Bridge,’* (Tr.

435-436, 468) and Mr. Hawkes and Mr. Bradshaw traveled

to Arlington frequently from the Bethesda and Silver

Spring studios, and also purchased food and beverages,

particularly for the combined parties of the three studios.

(Tr. 395, 522-525). Quite possibly the D.C. liquor receipts

were theirs, or Mr. and Mrs. Sims, who also traveled in

D.C., between the Arlington and Silver Spring studios.

(Tr. 295-296 ; Tr. 337).

There were several receipts from Lerners and Hechkts for

clothes. Mr. Bradshaw stated that occasionally clothing

would be bought for party skits or for the show case. (Tr.

390; 398). Mr. Hawkes also testified about clothes for skits

or costume parties, such as the hobo party. He added that

when ‘‘the holiday time came, there was enough clothes so

that we could carry it through.’’ (Tr. 521). Even Mr. Sims

mentioned something about the ‘‘clothes for my studio.’’

(Tr. 236). Of course, the Commonwealth never precluded

the possibility that several of the clothing items, particular-

ly from Hechts and Sears, did not represent personal pur-

chases by Mrs. Sims. The Hecht Company purchases were

in Arlington and Silver Spring, where two of the studios

are located. (Tr. 421-427). Additionally, Mrs. Sims made

the curious statement that ‘‘normally we (Mr. and Mrs.

Sims) don’t write anything for our personal business

through our corporate account (which includes petty cash).

Normally that is done through our personal account. (em-

16 Thomas Snow testified he never purchased the liquor at the

Virginia ABC store, but that generally he purchased the liquor

in D.C. (Tr. 468).

phasis added.) (Tr. 345). Such testimony implies that occa-

sionally the Sims made personal purchases charged to the

corporate account. The Commonwealth never did show

those particular receipts to Mrs. Sims for her to deny that

they were personal items purchased by her. In addition,

both Mr. and Mrs. Sims admitted that the receipts from

petty cash were used as a basis for obtaining tax deductions

for studio expenses, so that their personal expenditures,

included among the genuine business expenditures, would

represent a tax benefit. (Tr. 304-305; Tr. 345). Mrs. Sims

stated:

‘*Well, as far as our corporation is concerned, we

may write a check for whatever we choose to and then

“ur accountant at the end of the year dves the taxes

and he decides what is deductible and what is not.

Normally we don’t write anything for our personal

business through our corporation account. Normally

that is done through our personal account.’’ (Tr. 345).

It was also clear that electronic equipment and music

(records and tape decks) were purchased at various and

sundry locations. (Tr. 386). Mr. Bradshaw testified that he

purchased records and sometimes he would buy things for

the studio when he was out of the Arlington area. (Tr. 388,

395-396). Mr. Sims, on the other hand, ‘‘disallowed’’ a re-

ceipt for the purchase of records because ‘‘I don’t buy

records at Lord and Taylor.’’ (Tr. 187).

In regard to the gasoline receipts, the evidence strongly

supported the fact that appellant ran a lot of errands for the

studio and Mr. Sims. She made the bank deposits for the

studio (Tr. 352) ; she picked up Mr. Sims’ prescriptions at

Peoples and his drycleaning; (Tr. 353; 458) and she went to

the printers. (Tr. 353). Mr. Bradshaw testified that Mrs.

24

Coleman ran errands between the Arlington, Bethesda and

Silver Spring studios. (Tr. 391-392). Mr. Hawkes testified

that many times she helped Mr. Hawkes ‘‘solve and clean

up’’ his problems even when he was the dance director at

the Silver Spring studio. (Tr. 517-518). Mr. Bradshaw testi-

fied that in conversations with petitioner, she felt she was

entitled to gas reimbursements ‘‘because she did do a lot

of traveling back and forth.’’ (Tr. 393). He added that

‘*there were many, many little things that she (petitioner)

would be doing on the way by there, on the way to the bank,

and she would stop and pick them up or even make an extra

trip to pick them up for the studio.’’ (Tr. 394). On re-direct

examination by the Commonwealth, Mr. Bradshaw stated

that he thought Mrs. Coleman said ‘‘she had made some

definite arrangements to get a couple of dollars for gaso-

line... .’’ He testified that she had said at some later point

that she is ‘‘getting it now’’ (gasoline reimbursement).

(Tr. 403-404).

To lend credence to the fact that Mrs. Coleman was

allowed to purchase gasoline to reimburse her use of her

own car for studio business, several other employees testi-

fied that they were reimbursed for gas for errands run for

the studio. Carol Baker testified that Miss Gina received

$5.00 extra for going to the store on Fridays. (Tr. 456-457).

Mr. Hawkes testified that he received gas money for errands

run for the studio. (Tr. 533). In view of all the errands that

petitioner did run for Mr. Sims and the studio, it is clear

that she was entitled to be reimbursed for her gas. Even if

Mr. Sims did not give his approval for such expenditures,

it is clear that petitioner was entitled to it. It has been held

that the conversion of property under a bona fide claim of

ownership is not embezzlement. To constitute embezzlement

there must be a fraudulent intent to deprive the owner of his

property. Wadley v Commonwealth, 98 Va. 803, 35 S.E. 452

(1900) ; Whitlow v Commonwealth, 184 Va. 910, 37 S.E. 2d

18 (1946). Here, there could be no fraudulent intent, if

petitioner felt she was entitled to reimbursement for gaso-

line for running errands for the studio and her boss. Again,

however, it should be stated that petitioner was only posi-

tively identified with two gasoline receipts. Whether Mr. or

Mrs. Sims or other instructors were responsible for the

other gasoline receipts was left open to conjecture.

In view of all of the above, it is submitted that the Com-

monwealth failed to show that petitioner acted with a

fraudulent intent ‘‘to deprive the other of his property.’’ A

criminal intent has been held to be essential. 26 Am. Jur.

2d, See. 19, p. 570. Also the Commonwealth has failed to

show a fraudulent conversion of property. 26 Am. Jur. 2d.,

Sec. 22, p. 572. As indicated before, the Commonwealth has

failed to prove that the receipts in evidence were petition-

er’s. It is clear from the evidence that many of the receipts

came from other studio staff members, as well as Mr. and

Mrs. Sims. There were many ABC Liquor tabs, but Mrs.

Coleman didn’t buy the liquor; there were many grocery

receipts, but Mrs. Coleman didn’t do the grocery shopping;

there were several grocery receipts for Saturdays, but Mrs.

Coleman didn’t work on Saturdays. In fact, Mrs. Coleman

left work on weekdays at 5:00 p.m. and was not involved in

the running of parties, festivals and the like. (Tr. 224). The

Commonwealth tried to show that every receipt came direct-

ly to Mrs, Coleman for her to scrutinize. But there was

testimony that a number of purchases were made in the

evening and receipts were left in envelopes or in Mrs.

Colman’s desk by the night receptionist. (Tr. 413, 437-438).

26

Of course, it was not likely that petitioner would question

receipts, particularly for personal items, turned over to her

by her employers, Mr. and Mrs. Sims.

The Commonwealth has failed also to show that any of

the receipts were illegitimate. It is submitted that for Mr.

Sims to sort and re-sort receipts as being ‘‘legitimate,’’

‘‘illegitimate’’ or ‘‘borderline,’’ based merely on his feel-

ings that a receipt does or doesn’t look right is not com-

petent evidence. Most if not all of the receipts were con-

sistent with the running of the studio.

In Webb v Commonwealth, 204 Va. 24, 129 S.E. 2d 22, an

embezzlement case involving a bookkeeper, this Court

stated:

Where the Commonwealth, in a criminal case, under-

takes to prove the guilt of the accused by circumstantial

evidence ... not only must it prove the circumstances,

but it must overcome the presumption of innocence and

establish his guilt beyond a reasonable doubt. All nec-

essary circumstances proved must be consistent with

guilt and inconsistent with innocence. It is not sufficient

that the evidence create a suspicion of guilt, however

strong, or even a probability of guilt, but must exclude

every reasonable hypothesis save that of guilt... at

p. 29. (emphasis added).

The Commonwealth never did exclude every reasonable

hypothesis of innocence. The grocery, liquor, hardware and

supplies purchases could have been legitimate receipts. The

few clothing and jewelry items purchased could have been

another’s, particularly Mrs. Sims; some could have been

items for the studio, such as costumes or door prizes. Others

were being compensated for running studio errands; why

27

couldn’t petitioner have arranged for compensation for

gasoline.”

The Commonwealth attempted to show irregularities in

the check ledger (Tr. 325-330), apparently to show Mrs.

Coleman’s intent to cover up her alleged embezzlement. But

such irregularities ** were few and far between, in view of

the numerous check entries that were written correctly. (Tr.

364). Such discrepencies had little or nothing to do with any

cover-up anyhow, since all petty cash checks and other

checks written by Mrs. Coleman were returned from the

bank and forwarded to Mr. Sims’ accountant. At any rate,

‘*the mere making of false entries in books of account is not

sufficient evidence of an act of conversion constituent to the

crime of embezzlement, regardless of the defendant’s fraud-

ulent intent at the time of making such a false entry. 26 Am.

Jur. 2d, Sec 56, at p. 609."*

Since the ‘‘mental element of the crime of embezzlement

is a fraudulent purpose to deprive the owner of his property

and to appropriate the same,’’” it is difficult to hold that

petitioner had the required intent to embezzle since there

was nothing covered up. The receipts were attached to their

checks for all the world to see. Some of the receipts even had

Barbara Coleman’s handwriting on them, identifying what

the purchases were. It is difficult to see how a receipt from

Posins Bakery with appellant’s handwriting describing the

17 A staff member was compensated for gasoline for a trip to

Allentown, Pennsylvania in connection with studio business. (Tr.

217).

18 Listing several checks in the ledger differently than the way

they were actually written.

1 See also State v. Heaton, 56 N.D. 357, 217 N.W. 531.

2° Bain v. Commonwealth, 215 Va. 89, 205 S.E. 2d 641 (1974).

28

receipt as ‘‘pigs in a blanket for festival party’’ could be

anything but that.”

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the judgment of the Supreme Court of Virginia

Respectfully submitted,

Leo R. AnpreEws, Jr.

1400 N. Uhle St.

Arlington, Va.

Counsel for Petitioner

Davip Carey WoLL

815 15th St., N.W.

Washington, D.C. 20005

Of Counsel

21 Mr. Sims dubbed that receipt ‘‘illegitimate.’’ (Tr. 300). Al-

though Mrs. Coleman used studio checks to pay for two personal

flower deliveries, Mr. Hawkes testified that he had billed several

flower purchases to the studio, and then subsequently reimbursed

the studio. (Tr. 368-377; 526). There was no evidence offered by

the Commonwealth that Mrs. Coleman did not do the same thing.

APPENDIX A

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Monday the

23rd day of January, 1978.

The petition of Barbara Coleman for a writ of error to

judgments rendered by the Cireuit Court of Arlington

County on the 25th day of April, 1977, in prosecutions by

the Commonwealth against the said petitioner for felonies,

having been maturely considered and transcripts of the

records of the judgments aforesaid seen and inspected, the

court being of opinion that there is no reversible error in

the judgments complained of, doth reject said petition and

refuse said writ of error, the effect of which is to affirm

the judgments of the said court, which court shall allow

counsel the sum of $175 as compensation for services ren-

dered if appointed to represent the petitioner on this ap-

peal, and also his necessary direct out-of-pocket expenses.

And it is ordered that the Commonwealth recover of the

plaintiff in error the costs to be taxed by the clerk of

this court.

Record No. 771172

A Copy,

Teste:

ALLEN L. Luoy, Clerk

(s) By: Ricuarp R, Brinx

Deputy Clerk

30

Costs due the Commonwealth

by plaintiff in error in

Supreme Court of Virginia:

Attorney’s fee $175.00 plus his costs and expenses

Teste:

AuEN L. Lucy, Clerk

(s) By: Ricuarp R. Briyxk

Deputy Clerk

31

APPENDIX B

VIRGINIA:

In the Supreme Court of Virginia held at the Supreme

Court Building in the City of Richmond on Friday the 3rd

day of March, 1978.

Record No. 771172

Barpara CoLEMAN, Appellant,

against

CoMMONWEALTH OF VIRGINIA, Appellee.

Upon a Petition for Rehearing

On mature consideration of the petition of the appellant

to set aside the judgment rendered herein on the 23rd day

of January, 1978, and grant a rehearing thereof, the prayer

of the said petition is denied.

A Copy,

Teste:

AuuEnN L. Lucy

Clerk