                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and Beales
Argued at Richmond, Virginia


MICHAEL WAYNE FRYE
                                                            MEMORANDUM OPINION * BY
v.     Record No. 0412-07-2                             CHIEF JUDGE WALTER S. FELTON, JR.
                                                                 AUGUST 12, 2008
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                                   James Luke, Judge

                 Charles L. Weber, Jr. for appellant.

                 Craig W. Stallard, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General, on brief), for appellee.


       Following a bench trial, Michael W. Frye (“appellant”), tried jointly with Jeffrey Kidd

(Kidd), was convicted of embezzlement, in violation of Code § 18.2-111.1 On appeal, appellant

contends the trial court erred in denying his motion to strike the Commonwealth’s evidence at the

close of its case-in-chief and in finding him guilty of embezzlement, arguing the evidence was

insufficient to convict him of violating Code § 18.2-111. 2 For the following reasons, we affirm


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
          Appellant was also indicted for construction fraud, in violation of Code § 18.2-200.1.
At the close of the Commonwealth’s case-in-chief, the trial court granted appellant’s motion to
strike the Commonwealth’s evidence as to that indictment, finding the Commonwealth failed to
prove that Edwin Anderson, the victim, gave written notice by certified mail to appellant
demanding the return of the payment made to him, an element of the offense.
       2
         Appellant did not present evidence, and accordingly did not waive his right to rely on
his motion to strike made at the close of the Commonwealth’s case-in-chief. See Hargraves v.
Commonwealth, 219 Va. 604, 605, 248 S.E.2d 814, 815 (1978) (by introducing evidence,
accused waives right to rely on motion to strike made at conclusion of Commonwealth’s
case-in-chief).
appellant’s conviction. Because the parties are familiar with the record below, we cite only those

facts necessary to the disposition of the appeal.

        “When considering on appeal the sufficiency of the evidence presented below, we ‘presume

the judgment of the trial court to be correct’ and reverse only if the trial court’s decision is ‘plainly

wrong or without evidence to support it.’” Burrell v. Commonwealth, 50 Va. App. 72, 84-85, 646

S.E.2d 35, 41 (2007) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875,

876-77 (2002)). The “reviewing court does not ‘ask itself whether it believes that the evidence at

the trial established guilt beyond a reasonable doubt.’” Myers v. Commonwealth, 43 Va. App. 113,

118, 596 S.E.2d 536, 538 (2004) (emphasis in original) (quoting Crowder v. Commonwealth, 41

Va. App. 658, 662-63, 588 S.E.2d 384, 386-87 (2003)). It asks whether “‘any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” Kelly v.

Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). “‘This familiar standard gives full play to the responsibility of

the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.’” Id. at 257-58, 584 S.E.2d at 447 (quoting

Jackson, 443 U.S. at 319). “Thus, we do not ‘substitute our judgment for that of the trier of fact’

even if our opinion were to differ.” Burrell, 50 Va. App. at 85, 646 S.E.2d at 42 (quoting Wactor v.

Commonwealth, 38 Va. App. 375, 380, 564 S.E.2d 160, 162 (2002)).

        To establish the crime of embezzlement, the Commonwealth must prove that the accused

wrongfully appropriated to his own benefit property entrusted or delivered to the accused with

the intent to deprive the owner thereof. See Zoretic v. Commonwealth, 13 Va. App. 241, 243,

409 S.E.2d 832, 833-34 (1991). Although the Commonwealth need not establish the existence of

a formal fiduciary relationship, it must prove that the appellant was entrusted with the property

of another. See Chiang v. Commonwealth, 6 Va. App. 13, 17, 365 S.E.2d 778, 780 (1988).

                                                    -2-
Additionally, the Commonwealth must prove that the defendant had the specific intent of

depriving the rightful owner of property entrusted to him. See Waymack v. Commonwealth, 4

Va. App. 547, 549-50, 358 S.E.2d 765, 766 (1987). Such intent “may be, and often must be,

shown by circumstantial evidence.” Whitley v. Commonwealth, 223 Va. 66, 73, 286 S.E.2d 162,

166, cert. denied, 459 U.S. 882 (1983); see Stegall v. Commonwealth, 208 Va. 719, 723, 160

S.E.2d 566, 569 (1968).

       Proof of the “‘[u]authorized and wrongful exercise of dominion and control over

another’s personal property, to the exclusion of or inconsistent with [the] rights of the owner’” is

sufficient to establish such intent. Evans v. Commonwealth, 226 Va. 292, 297, 308 S.E.2d 126,

129 (1983) (quoting Black’s Law Dictionary 300 (5th ed. 1979)). “[I]f the [accused] divert[ed]

funds to benefit another, that action is sufficient to establish the wrongful appropriation of the

property to his . . . own use.” Chiang, 6 Va. App. at 17, 365 S.E.2d at 781.

       Here, the evidence proved that, in November 2005, Edwin Anderson (Anderson) contracted

with appellant and Kidd, who had previously done work for him, to perform construction work at

his home and an adjoining property. On November 21, Kidd and appellant informed Anderson that

they had consolidated the materials needed to perform the work at a Lowe’s home improvement

store and that they needed $2,295 to purchase the materials. Anderson gave them a check for

$2,295, payable to appellant, and wrote the words “Material Payment” on the memo line of the

check. From the evidence presented, the trial court found that Anderson gave the check to appellant

and Kidd specifically “for the purchase of materials,” and for no other purpose.

       Anderson contacted Kidd when the men did not show up at his property with the materials

to begin work on November 22. The record shows that appellant cashed the check at the bank on

which it was drawn on November 23. 3 Later that day he and Kidd arrived at Anderson’s home with


       3
           The record contains a copy of the check, endorsed by appellant.
                                                -3-
only a portion of the materials they were to purchase with the funds from the check. They presented

Anderson with a receipt from Lowe’s for the materials purchased, showing a total cost of $561.25.

Anderson asked them “where the rest of the stuff was,” and demanded that they return to him the

remaining proceeds from the $2,295 check. Kidd gave Anderson $559 that he had in his pocket.

Later that day, Kidd admitted to Anderson that he had used approximately $800 of the $2,295 check

proceeds given to him by appellant to pay for repairs to his van. No accounting of more than $300

of the original check proceeds was ever made by appellant or Kidd.

       When Anderson asked appellant about the misappropriated funds, he denied knowing that

Kidd was going to use those funds to pay for repairs to the van, even though the appellant was

dependent on Kidd for transportation to and from the work site. Appellant later promised to do

work on the construction project, but failed to appear to perform the work and did not remain in

contact with Anderson. Appellant failed to contact the police officer assigned to investigate the

incident, despite three telephone messages left by the officer for appellant to contact him.

       The trial court found the Commonwealth’s evidence credible, that Anderson made the

$2,295 check payable to appellant for the limited purpose of purchasing materials which appellant

and Kidd represented to him had been set aside at Lowe’s for the construction project and that

Anderson specifically limited the use of the proceeds of the check made payable to appellant,

writing “Material Payment” on the memo line of the check when he gave them the check.

       From the record on appeal, we conclude the trial court reasonably concluded that appellant

misappropriated Anderson’s funds when he cashed the check, and failed to purchase the materials

for which the check was given. The trial court could also reasonably conclude from the

Commonwealth’s evidence that appellant permitted Kidd to use approximately $800 from the check




                                                 -4-
proceeds to pay for repairs to the van and that he failed to account for more than $300 of the check

proceeds.

       For the reasons stated above, we affirm appellant’s conviction. 4

                                                                                      Affirmed.




       4
          For the first time on appeal, appellant argues that “Anderson’s decision to rescind the
contract without adequate grounds did not trigger an absolute duty to return the money entrusted
to” appellant and that “[a]ny debt potentially owed to Anderson by [appellant] [was] ambiguous
and subject to offsetting claims.” Rule 5A:18 provides that “[n]o ruling of the trial court . . . will
be considered as a basis for reversal unless the objection was stated together with the grounds
therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals
to attain the ends of justice.” Consistent with Rule 5A:18, we address only arguments that were
timely and specifically presented to the trial court. Thomas v. Commonwealth, 44 Va. App. 741,
750, 607 S.E.2d 738, 742, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005).
Appellant did not request that we invoke the ends of justice exception to Rule 5A:18, and “[t]his
Court will not consider, sua sponte, an ends-of-justice argument under Rule 5A:18.” Widdifield
v. Commonwealth, 43 Va. App. 559, 564, 600 S.E.2d 159, 162 (2004) (en banc).
                                                 -5-
