COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Annunziata and 

 Senior Judge Overton 

Argued at Chesapeake, Virginia 

SUE ANN McCULLOUGH 

 OPINION BY 

v. Record No. 1564-01-1 JUDGE ROSEMARIE ANNUNZIATA 

 AUGUST 27, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK 

Rodham T. Delk, Jr., Judge 

 Christopher P. Reagan, Assistant Public 

Defender (Office of the Public Defender, on 

brief), for appellant. 

 Eugene Murphy, Assistant Attorney General, 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellee. 

 At a bench trial, Sue Ann McCullough was convicted of two 

counts of misdemeanor welfare fraud and sentenced to twelve 

months incarceration, all suspended. In addition, pursuant to 

Code § 19.2-305(B), the trial court ordered McCullough to make 

restitution in the amount of $5,054.07 as a condition of her 

probation. McCullough appeals the trial court's imposition of 

this condition. For the reasons that follow, we affirm the 

trial court's decision. 

Background

 A grand jury indicted McCullough for welfare fraud in 

excess of $200, a felony. At trial, the Commonwealth proved 
beyond a reasonable doubt that Sue Ann McCullough committed 

welfare fraud against the Suffolk Department of Social Services. 

However, the Commonwealth failed to prove beyond a reasonable 

doubt the amount by which McCullough was overpaid as a result of 

her fraudulent conduct. She was accordingly convicted only of 

two counts of petit larceny, in violation of Code § 18.2-96, 

which defines "petit larceny" as the "commi[ssion] of simple 

larceny not from the person of another of goods and chattels of 

the value of less than $200." Code § 18.2-96. Notwithstanding 

the failure of proof during the guilt phase of the trial 

regarding the amount by which the Department was defrauded, the 

trial court at sentencing ordered restitution in the amount of 

$5,054.07, noting a different burden of proof applied to the 

determination of restitutionary amounts and holding that the 

Commonwealth proved the damages sustained by the agency by a 

preponderance of the evidence. The parties do not dispute these 

facts. 

Analysis

 McCullough contends that by ordering restitution in an 

amount greater than that proved in the guilt phase of the trial, 

the trial court erred as a matter of law. This question is one 

of first impression in Virginia. For the reasons that follow, 

we hold that the trial court did not err in the imposition of 

restitution in an amount greater than that proved in the guilt 

phase of the trial and affirm the decision of the trial court. 

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 The trial court conditioned McCullough's probation on 

payment of restitution to the agency in the amount of $5,054.07 

pursuant to Code § 19.2-305(B), which provides, in pertinent 

part: 

A defendant placed on probation following 

conviction may be required to make at least 

partial restitution or reparation to the 

aggrieved party or parties for damages or 

loss caused by the offense for which the 

conviction was had. 

In addition, Code § 19.2-305.1(A1) provides that one convicted 

of a crime "shall make at least partial restitution for any 

property damage or loss caused by the crime . . . ." Under 

these statutes, the trial court has "'wide latitude' and much 

'discretion . . . to [apply the] remedial tool [of restitution] 

. . . in the rehabilitation of criminals' . . . ." Deal v. 

Commonwealth, 15 Va. App. 157, 160, 421 S.E.2d 897, 899 (1992) 

(quoting Nuckoles v Commonwealth, 12 Va. App. 1083, 1085-85, 497 

S.E.2d 355, 356 (1991)). As such, the statutory provisions are 

to be liberally construed. Id.; Bazemore v. Commonwealth, 25 

Va. App. 466, 468, 489 S.E.2d 254, 255 (1997). 

 The statutory scheme for ordering restitution was 

established by the Virginia legislature as a conjunct of 

suspended sentences. Its purpose is to help make the victim of 

a crime whole. See generally, Alger v. Commonwealth, 19 

Va. App. 252, 450 S.E.2d 765 (1994); see also Russnak v. 

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Commonwealth, 10 Va. App. 317, 322, 392 S.E.2d 491, 493 (1990).1 

Although historically denominated a criminal penalty,2

restitution under Virginia law may be more accurately 

characterized as quasi-civil in nature. Restitution is a 

monetary amount that reflects the "damages" or "loss" caused by 

the crime. Code § 19.2-305(B). Part of the sentencing phase of 

trial, the amount is determined following conviction and is a 

matter resting within the sole province of the sentencing judge. 

See Code § 19.2-305.1(C) ("At the time of sentencing, the court, 

in its discretion, shall determine the amount to be repaid by 

the defendant and the terms and conditions thereof."); Frazier 

v. Commonwealth, 20 Va. App. 719, 721-22, 460 S.E.2d 608, 609 

(1995) (noting that restitution "is a well established 

sentencing component . . ."). It is based on facts proved 

either at the trial of the offense or at the sentencing hearing, 

 1

 Restitution may also serve the other purposes of 

sentencing, including deterrence, rehabilitation and 

retribution. See Note, Victim Restitution in the Criminal 

Process: A Procedural Analysis, 97 Harv. L. Rev. 931, 937-41 

(1984). 

2

 According to one legal scholar, "[i]n ancient societies, 

before the conceptual separation of civil and criminal law, it 

was standard practice to require an offender to reimburse the 

victim or his family for any loss caused by the offense. The 

primary purpose of such restitution was not to compensate the 

victim, but to protect the offender from violent retaliation by 

the victim or the community. It was a means by which the 

offender could buy back the peace he had broken." See id. at 

933-34 (citations omitted). 

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where both the defendant and the Commonwealth have an 

opportunity to present relevant evidence on the issue. Cf.

Deal, 15 Va. App. at 159-61, 421 S.E.2d at 898-900 (considering 

evidence from both the offense trial and the sentencing hearing 

to determine whether the imposed amount of restitution was 

reasonable). Clearly, then, the amount of restitution that may 

be imposed as a condition of probation is not an element of the 

offense that must be proved during the guilt phase of the trial, 

and its determination may properly be viewed as distinct from 

the determination of guilt. See Code § 19.2-295.1 (mandating 

separate proceedings for conviction and sentencing of felonies); 

Deal, 15 Va. App. at 160, 421 S.E.2d at 899 ("Following 

conviction in a criminal proceeding, trial courts are 

specifically vested with the authority to suspend the sentence 

in whole or part, suspend [its] imposition and . . . place the 

accused on probation, all under such conditions as the court 

shall determine. Among such conditions, restitution for 

'damages or loss' caused by the offense is expressly recognized 

and approved in several statutes." (internal quotations 

omitted)). 

 In addition to the principles enunciated above, different 

rules of procedure apply, further confirming that restitution is 

to be treated as distinct and separate from the trial and 

conviction for the offense. Such rules do not and need not 

mirror those required for conviction. See Hollis v. Smith, 571 

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F.2d 685, 693 (2d Cir. 1978) ("There is no authority binding 

upon us which holds that the procedure in proceedings relating 

solely to punishment even when an additional fact has to be 

established, must conform precisely to those in proceedings 

relating to guilt, and we see no basis in principle for so 

holding."). For example, hearsay evidence is admissible during 

sentencing and may be used to establish an appropriate amount of 

restitution. See Alger, 19 Va. App. at 259 n.2, 450 S.E.2d at 

769 n.2 (holding that Victim Impact Statement contained in 

pre-sentence report prepared by probation officer was properly 

considered by the court to determine restitution). In addition, 

the right to a jury determination of the amount does not attach. 

Boyd v. Commonwealth, 28 Va. App. 537, 540, 507 S.E.2d 107, 109 

(1998). Finally, and most importantly, the "damages" or loss 

incurred by an aggrieved party as a result of the offense need 

only be proved by a preponderance of the evidence. Bazemore, 25 

Va. App. at 468, 489 S.E.2d at 255; Alger, 19 Va. App. at 258, 

450 S.E.2d at 768. 

 The acceptance of the preponderance standard to establish 

the restitutionary amount, in itself, supports the conclusion 

that the Commonwealth's failure to prove the entire amount of 

loss caused by the offense during the guilt phase of the present 

offense, where a higher standard of proof prevailed, did not 

preclude the imposition of a greater amount upon proper proof 

during the sentencing phase. To adopt the converse and view the 

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restitution issue as partaking of the guilt phase of criminal 

prosecutions "would turn sentencing hearings into second 

trials." United States v. Fatico, 603 F.2d 1053, 1057 (2d Cir. 

1979). 

 In summary, the distinction made between restitution and 

the elements of the offense under Virginia law, which includes 

the application of a lowered burden of proof and relaxed rules 

of evidence, when viewed together with the primary purpose 

restitution has been instituted by the Virginia legislature, 

supports the conclusion that the amount of restitution the trial 

court may impose as a condition of probation is not limited to 

the proof put forth during the guilt phase of the trial. 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," Deal, 15 Va. App. at 160-61, 421 

S.E.2d at 899, the determination of the trial court will not be 

reversed. 

 In this case, the trial court found that the Commonwealth 

proved by a preponderance of the evidence that McCullough's 

actions caused $5,054.07 in damages to the agency. Therefore, 

it ordered McCullough to pay restitution in that amount. We 

find no error and affirm the trial court's determination of 

restitution. 

Affirmed. 

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