COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judge McClanahan and Senior Judge Coleman Argued at Salem, Virginia

PAMELA RUTH HATFIELD MEMORANDUM OPINION * BY v. Record No. 1972-07-3 JUDGE ELIZABETH A. McCLANAHAN NOVEMBER 4, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF TAZEWELL COUNTY Henry A. Vanover, Judge Wade T. Compton (Compton & Compton, P.C., on brief), for appellant. Joanne V. Frye, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Pamela Ruth Hatfield appeals her convicti on of embezzlement and argues her conviction violated double jeopardy prin ciples. We disagree and a ffirm the trial court. Hatfield was indicted in Russell County and Tazewell County for embezzlement from her employer, Community Health Clinic, which operated medical clinics in both counties. The Russell County indictment, dated February 13, 2 006, charged Hatfield with embezzlement of property having a value of $200 or more in Russell County from April 1, 2005 through September 30, 2005. The Tazewell County indi ctment, dated February 14, 2006, charged Hatfield with embezzlement of property having a value of $200 or more in Tazewell County from April 4, 2005 through September 22, 2005. Hatfield pled guilty to the Russell County indictment and moved to quash the Tazewell Co unty indictment on the ground it violated her constitutional protection against double jeopardy. The tria l court denied her motion, and

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - Hatfield pled guilty to the T azewell County indictment subject to her right to appeal on the double jeopardy ground. Double jeopardy principles protect “against a second prosecution for the same offense after either an acquittal or a conviction of th at offense and against multiple punishments for the

same offense.” Coleman v. Commonwealth , 261 Va. 196, 199, 539 S.E.2d 732, 733 (2001). Hatfield admits she embezzled money from her employer at both the Russell County clinic and the Tazewell County clinic on dates during the time periods contained in the indictments. She argues, though, Code § 19.2-245 1 allowed the Commonwealth to prosecute her wholly in Russell County for the embezzlement at both clinics because she took the embezzled funds from Tazewell County into Russell County. 2 Code § 19.2-245 certainly subjects a defendant to prosecution in a county other than the county in which the embezzlement was initially committed if defendant takes the stolen pr operty into the other county. Hatf ield, however, failed to offer evidence to show the Commonwealth in fact pr osecuted her in Russell County for property she embezzled in Tazewell County or that the embe zzlement to which she pled guilty in Russell County included any property she embezzled in Tazewell County. 3 And “[t]he burden is on the

1 Code § 19.2-245 provides, in pertinent part, that if any person shall commit larce ny or embezzlement within this Commonwealth and take the stolen property into any county or city other than the county or city within which the same was committed he shall be liable to prosecution and punishment for such larceny or embezzlement in any such county or city into which he shall have taken the property as if the same had been wholly committed therein.

2 There is no evidence in the record, however, that substantiates Hatfield’s claim that she took the money she embezzled at the Tazew ell County clinic into Russell County.

3 At the argument on Hatfield’s motion to dismiss the Tazewell County indictment, the Commonwealth asserted the inves tigating officer’s testimony would establish “[t]he indictment in Russell County did not in any way deal w ith the funds that were taken from Tazewell County.” Counsel for Hatfield agreed he read the officer’s report a nd “that may be [his]- 3 - defendant to substantiate [her] allegation [of doub le jeopardy] and establis h the identity of the offenses material to [her] plea.” Cooper v. Commonwealth , 13 Va. App. 642, 644, 414 S.E.2d 435, 435 (1992) (internal quotations and citation om itted). Because Hatfield did not prove the Russell County conviction encompassed the same embezzlement for which she was indicted in Tazewell County, the trial court did not err in denyi ng her motion to quash the indictment. 4 For the foregoing reasons, we affirm the judgment of the trial court.

Affirmed.

testimony” but argued part of the embezzlemen t could not take place in Tazewell County and part in Russell County because under the statute, “it is as if it all was committed in Russell County.”

4 Although not argued in the trial court, Hatfield argued on brie f and at oral argument that the Commonwealth’s prosecution of her in Russ ell County for the embezzlement in Tazewell County is evidenced by the fact that the Common wealth in Russell County sought restitution for amounts taken in both Russell County and Tazewell County. At her sentencing in Tazewell County, Hatfield’s probation officer testified that with regard to restitution sought by the employer, the employer submitted a memora ndum to the Russell County Circuit Court estimating a total amount taken by Hatfield in bo th counties combined since there was no way to determine how much was taken in each county. Even if the trial court in Russell County considered the amounts taken in Tazewell Count y when it sentenced Hatfield and ordered restitution, double jeop ardy does not bar prosecution for crim inal conduct previously considered at sentencing for a separate crime. See Witte v. United States , 515 U.S. 389 (1995) (upholding sentencing enhancements based on uncharged conduc t). Hatfield was indicted for and pled guilty to taking property with a value over $200 in Russell County. Any amount of restitution ordered by the court in Russell County wa s not an element of that offense, McCullough v. Commonwealth , 38 Va. App. 811, 568 S.E.2d 449 (2002) (am ount of restitution that may be imposed is not an element of offense that must be proved during guilt phase of trial), and thus, could not bar prosecution of Hatfield for the separate offense of em bezzlement in Tazewell County.