COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Elder 

Argued at Richmond, Virginia 

GRETA MARY NESTLE 

 OPINION 

v. Record No. 2439-94-2 BY JUDGE JOSEPH E. BAKER 

 APRIL 30, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY 

Thomas V. Warren, Judge 

 Joseph D. Morrissey (Morrissey, Hershner & 

 Jacobs, on brief), for appellant. 

 Steven A. Witmer, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on brief), 

 for appellee. 

 Greta Mary Nestle (appellant) appeals from a judgment of the 

Circuit Court of Nottoway County (trial court) that approved her 

jury conviction of embezzlement in violation of Code § 18.2-111. 

 Appellant contends that the evidence is insufficient to support 

her conviction; that the trial court erred when it refused to 

grant an instruction of petit larceny; that the trial court erred 

in admitting evidence relating to money or securities recovered 

before the provisions of Code § 19.2-270.2 were complied with; 

and erred concerning the admission of evidence and instruction to 

the jury concerning pastoral privilege. 

 Upon familiar principles, we state the evidence in the light 

most favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). 
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 The indictment, pursuant to which appellant was convicted, 

charged that during 1983, in violation of Code § 18.2-111, 

appellant wrongfully and fraudulently embezzled money having a 

value of $200 or more by virtue of her employment with Nottoway 

County High School (NHS). 

 On March 1, 1993, appellant became employed as a bookkeeper 

at NHS. Problems appeared concerning the books and bank 

deposits. On October 22, 1993, Patricia Harris (Harris), NHS 

principal, discussed with Dr. James Blevins (Blevins), the 

Superintendent of Nottoway County Schools, the problem areas she 

had observed. They discussed the fact that appellant previously 

had been charged with writing a bad check and decided to order an 

internal audit. The audit was conducted on October 25, 1993, and 

the auditor reported several "substantial irregularities in the 

accounts." 

 On the evening of October 26, Blevins left a letter 

concerning the audit under Harris' door. When Harris arrived at 

the office on October 27, she found the letter open and placed on 

her desk. Appellant admitted opening the letter but said she had 

not read it. On occasion, appellant would open envelopes 

containing Harris' mail, but would not remove the contents. 

 The letter listed seventeen questions that needed to be 

answered. Harris testified to three in particular. First, 

appellant had written a check to herself for $250 on the first 

day of school and it was never redeposited. The purpose of the 
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$250 check was to have one-dollar and five-dollar bills available 

to give change for book fees on the first day of school. Second, 

$822.50 of football game receipts, for which appellant was 

responsible, had not been deposited into the bank. Third, a 

deposit slip for $1,086 had been stapled to the fund ledger 

account but no deposit had been made. 

 On the morning of October 27, Harris and appellant met to 

discuss the letter. When Harris mentioned the missing $250, 

appellant stated "I've got that right here" and pulled the money 

out of a filing cabinet. Harris testified that the $250 was not 

in the filing cabinet on October 25 when she and the auditor went 

through the files. Appellant also produced the deposit for the 

$822.50 in football game receipts. Harris stated that appellant 

claimed to have deposited the $1,086, but when appellant was 

confronted with evidence that no deposit had been made, she 

produced the funds later that day. 

 On October 29, Blevins ordered an external audit. 

 On or about November 9 through 12, 1993, appellant took a 

week's leave to go to Charlottesville, where her child was in the 

hospital. The external audit was conducted during that time. 

After reviewing the audit report, Harris and Blevins drove to 

Charlottesville to meet with appellant. At the meeting, 

appellant resigned from her position and agreed to meet with 

Blevins on Monday, November 15, at 9:00 a.m. to discuss the 

discrepancies. Appellant failed to keep the appointment. 
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 On Tuesday, November 16, appellant's pastor, Reverend Zolton 

Phillips, III (the pastor), called Blevins to say that he had 

found a bag of checks and money belonging to NHS in his car. 

Blevins retrieved the bag from the pastor. An inventory of the 

contents of the bag revealed that it contained 438 checks, made 

payable to "Nottoway High School," totalling over $14,000 and 

cash in the amount of $1,300.10. 

 Relevant to this appeal was NHS check 411, dated August 20, 

1993, payable to appellant in the sum of $2,150. Using a check 

writer, appellant prepared the check and presented it to Harris 

for her signature. Harris signed the check and returned it to 

appellant. On August 23, 1993, appellant deposited that check 

into her personal bank account. Appellant's deposit slip 

indicated $215 as the amount deposited, rather than the $2,150 

actually deposited. 

 Appellant testified that check 411 was supposed to be a 

reimbursement check in the amount of $21.50 and that she "set" 

the check writing machine to reimburse herself for that amount 

but it malfunctioned, as she claimed it had on another occasion. 

Sufficiency

 At the time appellant deposited the $2,150 check into her 

account, the balance in that account was $122.45. Between August 

23 and August 27, 1993, she made no other deposits, yet she 

withdrew cash in the total sum of $485. In addition to the cash 

withdrawals during the four-day period, checks issued by 
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appellant in the sum of $709.67 cleared her account. Excluding 

the $2,150, those sums totaled more than her balance even if the 

alleged $215 deposit was added to the $122.45. It is clear that 

appellant intended to and did convert the $2,150 to her own use. 

 To establish the statutory crime of embezzlement, the 

Commonwealth must prove that the accused wrongfully appropriated 

to her use or benefit, with the intent to deprive the owner 

thereof, the property entrusted to her by virtue of her 

employment or office. Waymack v. Commonwealth, 4 Va. App. 547, 

549, 358 S.E.2d 765, 766 (1987). The intent to deprive the owner 

can be inferred from all the facts and circumstances of the case. 

Chiang v. Commonwealth, 6 Va. App. 13, 17, 365 S.E.2d 778, 780 

(1988). The evidence contained in this record clearly proved 

beyond a reasonable doubt appellant's guilt of the crime of 

embezzlement. 

Petit Larceny Instruction

 Appellant further argues that the trial court erroneously 

refused a petit larceny instruction because the jury could have 

concluded that appellant only intended to steal $193.50. This 

argument is based upon appellant incorrectly listing $215 as the 

deposit amount. Appellant asserts that because she was owed 

$21.50, deducting that sum left only a balance of $193.50 as the 

sum stolen, an amount less than the amount necessary to support a 

felony charge. 

 Appellant's argument is without merit. The amount of 
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withdrawals and checks drawn on her account disclose only an 

intent to steal a larger amount. The trial court did not err 

when it refused to grant the petit larceny instruction requested 

by appellant. 

Code § 19.2-270.2

 Exhibit 17, introduced into evidence over appellant's 

objection, disclosed that 438 checks and some cash had been 

discovered in the backseat of a car owned by the pastor of a 

church of which both appellant and Blevins were members. The 

pastor turned those items over to Blevins, who caused them to be 

photocopied. The copies remained with the sheriff and the checks 

and cash were deposited to the NHS account. 

 Code § 19.2-270.2 permits the police authorities to retain 

monies and securities pending trial or appeal, or to release the 

items when good cause is shown and does not involve the 

admissibility of the items as evidence. The statute had no 

application to the introduction into evidence of the money and 

checks, or copies thereof. Accordingly the trial court did not 

erroneously admit Exhibit 17 into evidence. 

Pastoral Privilege

 Appellant contends that the trial court erred when, in the 

presence of the jury, the prosecutor asked appellant on 

cross-examination whether she knew Reverend Zolton Phillips and 

had been counseled by him as her pastor. That inquiry was made 

only after appellant testified on her own behalf that she had not 
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stolen any money from NHS. After responding in the affirmative, 

appellant objected to further questions concerning that 

relationship. Out of the presence of the jury, appellant 

successfully prevailed on the trial court to bar any further 

pastoral-related questions because she was "exercising" her 

"Priest Penitent Privilege." After sustaining appellant's 

objection, the trial court instructed the jury as follows: 

THE COURT: All right, ladies and 

gentlemen, while you were out the Court heard 

matters regarding conversations with [the 

pastor] while she was counseling with him. 

The evidence is he was at that time her 

pastor, thereby creating a Pastor Penitent 

relationship that all of Virginia recognizes 

a privilege that one has when counseling with 

her pastor or priest. And it allows the 

person the privilege that he or she may 

exercise as to any conversation, anything 

that was said by or to the priest during that 

relationship. The defendant has exercised 

her right of privilege, and, therefore, there 

will be no further inquiry in the 

conversations with [the pastor] during that 

relationship. 

That instruction did not accurately state the law in Virginia. 

 Code § 19.2-271.3 states: 

Communications between ministers of religion 

and persons they counsel or advise.--No 

regular minister, priest, rabbi or accredited 

practitioner over the age of eighteen years, 

of any religious organization or denomination 

usually referred to as a church, shall be 

required in giving testimony as a witness in 

any criminal action to disclose any 

information communicated to him by the 

accused in a confidential manner, properly 

entrusted to him in his professional capacity 

and necessary to enable him to discharge the 

functions of his office according to the 

usual course of his practice or discipline, 
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where such person so communicating such 

information about himself or another is 

seeking spiritual counsel and advice relative 

to and growing out of the information so 

imparted. 

 We hold that under Virginia law, the priest-penitent 

privilege belongs to the clergyman, not the layman. Our 

conclusion is guided by Seidman v. Fishburne-Hudgins Educ. 

Found., Inc., 724 F.2d 413 (4th Cir. 1984), in which the United 

States Court of Appeals for the Fourth Circuit decided the 

identical issue, as it relates to the priest-penitent privilege 

for civil cases. In Seidman, the defendant contended that the 

confidential communications made to her priest enjoyed the 

protection of the priest-penitent privilege. The Court analyzed 

Code § 8.01-400, which is the civil counterpart to Code 

§ 19.2-271.3, and which utilizes the same operative language 

found in Code § 19.2-271.3. The Court held that while most 

priest-penitent statutes "explicitly prohibit the clergyman from 

disclosing the contents of a confidential communication without 

the consent of the person making the communication," the language 

in Virginia's civil priest-penitent privilege statute "plainly 

invests the priest with the privilege and leaves it to his 

conscience to decide when disclosure is appropriate." Id. at 

415, 416 (quotation omitted). The Court buttressed its 

conclusion by contrasting Code § 8.01-400's statutory language 

with other code sections, such as Code § 8.01-399 

(physician-patient privilege) and Code § 8.01-400.2 
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(psychologist-client privilege). According to those provisions, 

the communicant must request or consent to the elicitation of the 

privileged testimony. Id. at 416 n.2. 

 The privilege granted to confessors1 appears to have been 

established by the Roman Catholic Church as early as the Fifth 

Century. See The Code of Canon Law in English Translation, 

Canons 983, 984 (Collins, Trans. 1983). While the common law 

history of the priest-penitent privilege is less than clear, most 

scholars agree that pre-Reformation England, out of respect for 

the Catholic church and the Seal of Confession, recognized a 

privilege protecting communications made to a confessor. With 

the advent of the Reformation and the rise of the Anglican Church 

in England, however, the privilege was greatly abrogated, if not 

completely abolished. Blackstone makes no mention of the 

privilege in his famed commentaries on the common law, and the 

case law, what little there is, appears unanimous in denying the 

privilege. Thus, most scholars conclude that the priest-penitent 

privilege is not a part of England's common law legacy. In fact, 

a privilege protecting confessional communications is not 

recognized in England today. 

 The priest-penitent privilege has fared much better in the 

 

 1Confessor. A priest who receives auricular confessions of 

sins from persons under his spiritual charge, and pronounces 

absolution upon them. The secrets of the confessional were not 

privileged communications at common law, but are so classified by 

statute, court decision or court rule in most states. Black's 

Law Dictionary, 297 (6th ed. 1990). 
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United States. The privilege was first recognized in the United 

States in 1813. See People v. Phillips, (N.Y. Ct. Gen. Sess. 

1813) (abstracted in 1 W.L.J. 109, 112-13 (1843)). In Phillips, 

the defendant had been charged with trafficking in stolen goods. 

 Prior to trial, Phillips confessed the offenses to his Catholic 

priest and gave him the stolen property so that it might be 

returned. When called upon at trial, the priest would not 

testify, refusing to violate the canons of his church. The 

court, relying upon the priest's freedom of religion as 

guaranteed by New York's constitution, held that he, in fact, 

could not be forced to reveal that which he had heard during the 

administration of the sacrament of Penance. 

 Four years later, in 1817, a New York court denied the 

privilege to a Protestant minister who refused to testify 

regarding confessions made to him by the defendant. See People 

v. Smith, 2 N.Y. City Hall Rec. 77 (1817). The court, 

distinguishing its case from Phillips, noted that the clergy in 

Phillips had been a Roman Catholic priest, bound by the rules of 

the Catholic church, while the clergy before it was Protestant 

and, as such, not bound by the seal of the confessional. 

 In 1828, partly in response to Smith, the New York 

legislature became the first state to enact a statute providing a 

privilege to confessional communications made to clergy. The 

statute read: 

No minister of the gospel, or priest of any 

denomination whatsoever, shall be allowed to 

disclose any confessions made to him in his 
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professional character, in the course of 

discipline enjoined by the rules or practice 

of such denomination. 

N.Y. Rev. Stat. § 72, pt. 3, ch. VII, tit. III, art. 8 (1828). 

 Currently, all fifty states have a statute recognizing some 

form of the priest-penitent privilege. Virginia first enacted a 

statute granting the privilege in civil trials in 1962 (Code 

§ 8.01-400, enacted as § 8-289.2) and further enacted Code 

§ 19.2-271.3 in 1985, granting the privilege in criminal trials. 

 As stated earlier, Code § 19.2-271.3 does not give the 

privilege to the accused. See generally O'Dell v. Commonwealth, 

234 Va. 672, 704, 364 S.E.2d 491, 509, cert. denied, 488 U.S. 871 

(1988). Because the privilege does not extend to the layman, the 

trial court erred by extending the pastoral privilege to 

appellant. That error, however, favored appellant, not the 

Commonwealth, because appellant was not required to disclose her 

communication to her pastor. 

 Unless by her actions appellant waived her Fifth Amendment 

right against self-incrimination, that remedy would be available 

to her to prevent the prosecutor from requiring her to reveal the 

contents of her pastoral counseling. Here, however, appellant 

testified on her own behalf and denied that she had stolen any 

money belonging to NHS. Appellant cannot testify on her own 

behalf and also claim the right to be free from cross-examination 

on matters raised by her own testimony on direct examination. 

See Brown v. United States, 356 U.S. 148, 154-56 (1958). Because 
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Code § 19.2-271.3 grants no privilege to a criminal defendant, 

the error committed by the trial court in excluding evidence 

favored appellant and, therefore, was harmless. 

 For the reasons stated, the judgment of the trial court is 

affirmed. 

Affirmed.