                     COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Benton and Bray
Argued at Richmond, Virginia


SCOTT TRIBUZI, S/K/A
 SCOTT BRUCE TRIBUZI
                                                OPINION BY
v.   Record No. 1794-96-2                JUDGE JAMES W. BENTON, JR.
                                               JULY 22, 1997
COMMONWEALTH OF VIRGINIA

            FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                   Ernest P. Gates, Judge Designate

             William H. Parcell, III (Phillips, Webb &
             Wallerstein, P.C., on brief), for appellant.
             Steven A. Witmer, Assistant Attorney General
             (James S. Gilmore, III, Attorney General;
             Kimberley A. Whittle, Assistant Attorney
             General, on brief), for appellee.



        Scott Bruce Tribuzi was convicted of embezzling an amount of

money greater than $200 from his employer, the Richmond Memorial

Hospital, during the period of July 14, 1995 through July 17,

1995.     See Code § 18.2-111.    Tribuzi argues on appeal that (1)

the evidence was insufficient to support the conviction, and (2)

the evidence was insufficient to prove that venue was proper in

the Circuit Court of the City of Richmond.        For the reasons that

follow, we reverse the conviction and dismiss the indictment.

                                    I.

        The evidence proved that Tribuzi was the Director of Support

Services at Richmond Memorial Hospital.        One of his duties was to

count the money the food service cashiers deposited into one of

the safes at the hospital.       Tribuzi shared this responsibility

with June Walton and Glenda Moody, both of whom also had access
to the safe.   After counting the money, a deposit slip would be

completed and recorded.   The money would be placed into a bank

bag and given to a member of the hospital's security staff for

deposit.

     Latina Thomas, one of the cashiers, testified that she

worked as a cashier from July 14, 1995 through July 17, 1995.

Thomas testified that at the end of her shift she would count the

money in the register, record the total on a "face sheet," and

attach a register receipt to the face sheet.    The register

receipt was used to "verify the information contained in the

[face] sheets."   Although the amount indicated on the face sheet

should match the amount reported on the cash register receipt,

Thomas testified that the amounts sometimes differed.    The

discrepancies on Thomas' sheets for the four days varied from one

dollar to several hundred dollars.     Thomas could not explain the

discrepancies.
     Several other cashiers also testified that the cash register

receipts and the face sheets often contained discrepancies.    One

cashier testified that the cash register receipt attached to her

face sheet contained no indication of the cash she collected.

She testified that at the end of her work shift she "counted what

was in the register and [the register tape] didn't actually tell

you how much you made."

     Glenda Moody, the Cash Operations Manager for Nutrition

Services, testified that she shared with Tribuzi the




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responsibility for counting the money in the safe.   Moody stated

that the money was counted the morning after it was put in the

safe and that the individual who counted the money would fill out

a deposit slip and a cash register reconciliation sheet.    Moody

also testified that she and Tribuzi had discussed the cashiers'

discrepancies in the past and that after Tribuzi ceased working

at the hospital the discrepancies continued to appear.

     Kenneth Taylor, the Director of Security, testified that he

and his security staff had access to the safe where the cashiers

deposited the money.   Taylor stated that on July 20, 1995 he

found the cashiers' face sheets pertaining to the period of July

14, 1995 through July 17, 1995 in the trash can in Tribuzi's

office.    Taylor also testified that $1,800 had been taken from

another hospital safe after Tribuzi ceased working at the

hospital.
     Timothy Patterson, the Internal Auditor for the hospital,

was involved in the investigation of Tribuzi conducted by the

hospital.   Patterson determined that for the days of July 14 to

July 17, a discrepancy of $1,010 existed between the amount of

money the cashiers reported and the amount of money deposited in

the bank.

     June Walton, a Department Supervisor, testified that she was

with Tribuzi when he counted the money on July 17 and 18.      Walton

testified that she did not see Tribuzi do anything improper or

illegal.    She also testified that the amount reported on a




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cashier's face sheet and the amount of money the cashier put in

the safe would sometimes differ.    She further testified that

Tribuzi initially was given the responsibility to count the money

"[b]ecause the variances [detected in the cashiers' reports] were

coming so close together, that money looked like it was missing."

     At the conclusion of the Commonwealth's evidence, Tribuzi

moved to strike the evidence on the grounds that the Commonwealth

failed to prove venue and that the evidence was insufficient to

prove embezzlement beyond a reasonable doubt.    The trial judge

offered to allow the assistant Commonwealth's attorney to reopen

the case-in-chief to offer evidence concerning venue.    The

assistant Commonwealth's attorney stated that venue had been

proved and declined the opportunity.     The trial judge overruled

Tribuzi's motions.
     Tribuzi testified that the discrepancy problems in the

cashiers' reconciliations were long standing.    He said that he

had sought to identify "whether it was a cashier problem, a cash

register problem, or a theft."    He had attempted to correct the

problems through in-service training.

     Tribuzi denied embezzling money.     He testified that he

counted the money the cashiers deposited during the period of

July 14, 1995 through July 17, 1995 and noticed large

discrepancies.   Tribuzi testified that he planned to discuss the

problem with Moody when she returned from her vacation leave.

     Tribuzi also testified that he routinely placed papers in




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his trash can and that he "used [his] trash can as a filing

system" until he was sure that the papers were no longer needed.

He further testified that his office remained locked and that

the security director was the only person who had a key to his

office.    He stated that the housekeeping staff could only enter

his office when he was present.

     At the close of Tribuzi's evidence, Tribuzi renewed his

motions.   The trial judge overruled the motions and convicted

Tribuzi of embezzlement.
                                  II.

     "To establish the statutory crime of embezzlement under Code

§ 18.2-111, it is necessary to prove that the accused wrongfully

appropriated to [his] use or benefit, with the intent to deprive

the owner thereof, the property entrusted to [him] by virtue of

[his] employment or office."    Waymack v. Commonwealth, 4 Va. App.

547, 549, 358 S.E.2d 765, 766 (1987) (footnote omitted).   In

addition, the following principles are applicable to cases, such

as this case, that are based on circumstantial evidence:
          All necessary 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. To accomplish that the chain
          of circumstances must be unbroken and the
          evidence as a whole must be sufficient to
          satisfy the guarded judgment that both the
          corpus delicti and the criminal agency of the
          accused have been proved to the exclusion of
          any other reasonable hypothesis and to a
          moral certainty.



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                 *    *   *    *    *      *      *

               A bookkeeper cannot be held criminally
          liable for embezzling funds merely because
          the funds received had not been deposited
          where there is an obvious lack of internal
          control and where persons other than the
          accused received funds and made some entries
          in the accounts in the absence of a showing
          that he converted the funds to his own use.


Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29-30

(1963).

     The evidence proved that Tribuzi was not the only employee

who had access to the money in the safe.       The security staff had

access to the safe.   In addition, Glenda Moody testified that she

and June Walton, who were also responsible for counting the money

deposited by the cashiers, had access to the safe.      Thus, the

Commonwealth failed to disprove the reasonable hypothesis that

another individual who had access to the safe removed money from

the envelopes.
     The evidence also established that the information reported

by the cashiers contained numerous internal discrepancies.      The

total amount of money the cashiers reported often did not match

the amount reported on the receipts produced by their registers.

To address this problem, Glenda Moody spoke to the cashiers to

"re[inforce] accuracy . . . and . . . to make sure they [weren't]

making errors in things like counting."    This evidence supports a

reasonable hypothesis that the amount of money the cashiers

actually placed into the envelopes did not match the amount of

money the cashiers reported on their face sheets.      Simply put,


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the evidence failed to exclude the reasonable hypothesis that the

discrepancy was caused by counting errors committed by the

cashiers.

        Based on this evidence, we hold that the Commonwealth failed

to "overcome the presumption of innocence and establish

[Tribuzi's] guilt beyond a reasonable doubt."     Id. at 34, 129

S.E.2d at 29.    Accordingly, we reverse the conviction and dismiss

the indictment. 1
                                           Reversed and dismissed.




    1
     Because we hold that the evidence was insufficient to support
the embezzlement conviction, we need not address Tribuzi's
contention that the evidence was insufficient to prove venue under
Code § 19.2-244. Tribuzi's argument that the evidence failed to
prove that the alleged offense occurred in the City of Richmond
raises an issue of venue and does not constitute an allegation
that the circuit court lacked jurisdiction, or inherent power, to
decide this case. See Southern Sand and Gravel Co. v. Massaponax
Sand and Gravel Corp., 145 Va. 317, 328, 133 S.E. 812, 815 (1926)
("'That the action is tried in a county other than that declared
by statute the proper county for its trial does not go to the
jurisdiction, and does not invalidate the judgment.'") (citation
omitted); cf. Garza v. Commonwealth, 228 Va. 559, 565-66, 323
S.E.2d 127, 130 (1984) (stating that "all circuit courts have
jurisdiction over all felonies committed in the Commonwealth").



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