Sales clerk’s discounts were embezzlement
By Deborah Elkins
Published: May 3, 2012
A former Macy’s sales clerk cannot overturn her conviction for embezzlement for giving unauthorized discounts and additional unpaid merchandise to a customer, even though the sales clerk did not personally benefit from those acts, the Court of Appeals says.
Defendant admitted she was stealing and knew it was wrong. She thought she could get away with it. There was no evidence she received any of the proceeds from the sale or that she received any of the merchandise. She says she had no fraudulent intent, that her only intent was to please the customer, whom she only knew from the store.
The plain language of the embezzlement statute, Va. Code § 18.2-111, does not require the employee to personally benefit in order to be guilty of embezzlement.
Defendant is bound by Jury Instruction No. 4ii, that the commonwealth need not prove defendant personally benefitted from the misappropriation, as she did not object at trial.
The company’s loss prevention manager testified that a sales associate, in order to mark down a sale price, must get permission from a manager, except in limited circumstances not applicable here. Defendant acknowledged this procedure and that in this case, she did not follow the procedure. Further, in addition to these unauthorized markdowns, defendant also gave away other shirts to the customer. There was sufficient evidence to convict defendant of embezzlement.
Defendant also contends her Jury Instruction F should have been granted. We note the first sentence of Instruction F is inconsistent with the commonwealth’s Instruction No. 4ii and should not have been allowed, as it is an incomplete statement of law.
Finally, the trial court did not err in declining to define the term “fraud,” in response to a question posed by the jury during deliberations. Contrary to defendant’s assertion, the terms “fraud” or “fraudulent” are plain, ordinary words commonly used in general discourse. If there was any error, such error was harmless. Defendant’s Instruction G defining a “fraudulent act” was available to the jury.
Wells v. Commonwealth (Frank) No. 0864-11-4, May 1, 2012; Fairfax Cir.Ct. (Kassabian) A. Mark Nicewicz for appellant; Eugene Murphy, Sr. AAG., for appellee. VLW 012-7-117, 11 pp.
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