                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges Elder and Petty
UNPUBLISHED


              Argued at Richmond, Virginia


              JODI LYNN BOLEY
                                                                            MEMORANDUM OPINION ∗ BY
              v.     Record No. 0033-12-2                                    JUDGE WILLIAM G. PETTY
                                                                                  APRIL 16, 2013
              COMMONWEALTH OF VIRGINIA


                            FROM THE CIRCUIT COURT OF THE CITY OF FREDERICKSBURG
                                              Gordon F. Willis, Judge

                               John D. Mayoras (Spencer, Mayoras, Koch & Cornick, on brief), for
                               appellant.

                               Elizabeth C. Kiernan, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Appellant, Jodi Lynn Boley, was convicted by a jury of five counts of embezzlement in

              violation of Code § 18.2-111. Boley was sentenced to seven years in prison and ordered to pay

              $1,405,000 in restitution to the victim, VTS Productions, Inc. On appeal, Boley argues that the

              trial court abused its discretion in calculating the restitution amount. We reverse and remand for

              further proceedings to calculate the appropriate amount of restitution.

                                                                I.

                     Because the parties are fully conversant with the record in this case and this

              memorandum opinion carries no precedential value, we recite below only those facts and

              incidents of the proceedings as are necessary to the parties’ understanding of the disposition of

              this appeal. “On appeal, ‘we review the evidence in the light most favorable to the

              Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.’” Archer v.


                     ∗
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v.

Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)).

                                                  II.

       Boley contends that the trial court abused its discretion by ordering restitution based

solely on figures listed in a victim impact statement, without evidence that the amount of loss

alleged was actually caused by Boley’s crimes. We agree.

       We review a trial court’s decisions on restitution and other sentencing matters under an

abuse of discretion standard. See Burriesci v. Commonwealth, 59 Va. App. 50, 55, 717 S.E.2d

140, 143 (2011); Alger v. Commonwealth, 19 Va. App. 252, 257, 450 S.E.2d 765, 768 (1994).

“On appeal, where the restitutionary amount is supported by a preponderance of the evidence

and is ‘reasonable in relation to the nature of the offense,’ the determination of the trial court will

not be reversed.” Burriesci, 59 Va. App. at 55-56, 717 S.E.2d at 143 (quoting McCullough v.

Commonwealth, 38 Va. App. 811, 817, 568 S.E.2d 449, 451-52 (2002)). An abuse of discretion

occurs “when a relevant factor that should have been given significant weight is not considered;

when an irrelevant or improper factor is considered and given significant weight; and when . . .

the court, in weighting those factors, commits a clear error of judgment.” Turner v.

Commonwealth, 284 Va. 198, 206, 726 S.E.2d 325, 329 (2012) (quoting Landrum v.

Chippenham & Johnston-Willis Hosps., Inc., 282 Va. 346, 352, 717 S.E.2d 134, 137 (2011)).

Although it is within the trial court’s discretion, the scope of restitution is limited “to payments

for ‘damages or losses caused by the offense.’” Howell v. Commonwealth, 274 Va. 737, 740,

652 S.E.2d 107, 108 (2007) (citing Code §§ 19.2-303, -305(B)). Those “[c]osts that result only

indirectly from the offense, that are a step removed from the defendant’s conduct, are too remote

and are inappropriate for a restitution payment.” Id. at 741, 652 S.E.2d at 109.




                                                 -2-
       The Commonwealth’s argument relies on this Court’s holding in Alger that “the

legislature intended that the victim impact statement be used by the trial judge to determine the

amount of restitution.” 19 Va. App. at 259, 450 S.E.2d at 769. However, Alger does not hold

that these statements are conclusive proof of the appropriate restitution amount. Nor does it

relieve the trial judge from determining whether, by a preponderance of the evidence, the

damages or loss claimed were in fact caused by the offense for which Boley was convicted. The

dispute in Alger involved the use of insurance payout figures in a victim impact statement to

determine the value of specific items taken in the robbery for which the defendant was convicted.

Thus, there was an obvious causal connection between the defendant’s crime and the losses

listed in the victim impact statement. Furthermore, the figures were accompanied by testimony

from the probation officer who prepared the report that “he had personally contacted each

insurance company or its agents and obtained the actual value of the property stolen, recovered,

claimed on insurance, and reimbursed through insurance coverage.” Id. at 258, 450 S.E.2d at

768.

       After this case was argued we decided Sigler v. Commonwealth, ___ Va. App. ___, ___

S.E.2d ___ (Apr. 2, 2013), involving the issue of the appropriate amount of restitution for items

taken in a theft. In that case, however, it was undisputed that the value of the property stolen was

a legitimate basis for an award of restitution. The dispute was over quantum of proof necessary

to establish the value of the property taken, not whether the victim’s loss was caused by the theft.

The victim who prepared the figures testified at sentencing, stating she had prepared a list of

each missing item and estimated its value and that she had provided this same list to her

insurance company—subjecting her to the risk of nonpayment on her claim or prosecution for

insurance fraud if the amounts were false or inflated. Id.; see also Burriesci, 59 Va. App. at 54,

717 S.E.2d at 142 (upholding a restitution award where the trial court was “presented a 12-page

                                               -3-
exhibit indicating that appellant had received [improper] reimbursements from [Virginia’s

Medicaid administrator] totaling $180,082”).

       Unlike Alger and Sigler, here there is no evidence from which the trial court could

determine whether the claimed damages were caused by Boley’s embezzlement. 1 A significant

portion of the restitution award consists of tax liabilities incurred by the victim corporation

during the time of Boley’s embezzlement scheme. It is not clear from this record if this amount

reflects only fines and penalties for late payment, which would be appropriate for a restitution

award, or whether it includes the company’s original unpaid tax liability, which arose

independently of Boley’s embezzlement. To the extent that Boley embezzled funds that were

intended to pay the corporation’s payroll tax liability, it is appropriate that she be ordered to

return those funds, and to take responsibility for any penalties and interest that accrued because

of her deception regarding whether the taxes were paid. 2

       Nevertheless, the company’s original obligation to remit payroll taxes to the Internal

Revenue Service was not “caused by” Boley’s embezzlement; it arose as a result of the operation

of the Internal Revenue Code. See Howell, 274 Va. at 741, 652 S.E.2d at 109 (“[T]he

installation of a security system, while related to Howell’s burglary, was not caused by the

offense as required by Code §§ 19.2-303, -305(B), -305.1(A).”). Boley was already ordered to

return the money she diverted from tax payments into her personal accounts, which the

       1
          The trial court based the restitution award of $1,405,000 on a victim impact statement
prepared by Chris Chandler, appellant’s brother and president of VTS Productions. Chandler
itemized the damages suffered due to appellant’s embezzlement as follows: an “estimated
$750,000” owed to the “IRS & State of Virginia;” an “estimated $350,000” in “VTS Theft;”
$250,000 in a “Trust Fund Penalty;” and $55,000 in legal and accounting fees. The total amount
of loss according to Chandler was $1,405,000. Chandler provided no supporting documentation
that detailed how he arrived at these figures.
       2
        The victim impact statement also includes an amount the victim paid for attorneys and
accountants to unravel Boley’s embezzlement scheme. To the extent these payments were made
to uncover the extent of the crime, they would be considered a loss caused by Boley’s
embezzlement.
                                               -4-
corporation could then remit to the IRS to cover its tax liabilities. To require Boley to return the

embezzled money and assume liability for the company’s unpaid payroll taxes would constitute

a double payment.

       There is also a large discrepancy between the amount of money that was proven to be

embezzled at trial—approximately $156,000—and the amount attributed to “theft” on the victim

impact statement—$350,000. We recognize that the standard of proof is different at sentencing,

and a restitution award is not restricted to the amount proven at trial. See McCullough, 38

Va. App. at 817, 568 S.E.2d at 451 (“[F]ailure to prove the entire amount of loss caused by the

offense during the guilt phase . . . did not preclude the imposition of a greater amount upon

proper proof during the sentencing phase.”). Without any evidence of how this additional

amount was calculated, or how it relates to Boley’s crimes, there is no basis for the trial court to

make such an award.

       Because there was no evidence to show how the amounts on the victim impact statement

were derived, or how the losses were caused by Boley’s embezzlement, we hold that the trial

court abused its discretion in ordering the amount of restitution.

                                                 III.

       For the foregoing reasons, we reverse and remand for further proceedings to determine

the appropriate restitution award consistent with this opinion.

                                                                           Reversed and remanded.




                                                -5-
