COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Bray 

Argued at Richmond, Virginia 

SCOTT TRIBUZI, S/K/A 

 SCOTT BRUCE TRIBUZI 

 OPINION BY 

v. Record No. 1794-96-2 JUDGE JAMES W. BENTON, JR. 

 JULY 22, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Ernest P. Gates, Judge Designate 

 William H. Parcell, III (Phillips, Webb & 

Wallerstein, P.C., on brief), for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(James S. Gilmore, III, Attorney General; 

Kimberley A. Whittle, Assistant Attorney 

General, on brief), for appellee. 

 Scott Bruce Tribuzi was convicted of embezzling an amount of 

money greater than $200 from his employer, the Richmond Memorial 

Hospital, during the period of July 14, 1995 through July 17, 

1995. See Code § 18.2-111. Tribuzi argues on appeal that (1) 

the evidence was insufficient to support the conviction, and (2) 

the evidence was insufficient to prove that venue was proper in 

the Circuit Court of the City of Richmond. For the reasons that 

follow, we reverse the conviction and dismiss the indictment. 

 I. 

 The evidence proved that Tribuzi was the Director of Support 

Services at Richmond Memorial Hospital. One of his duties was to 

count the money the food service cashiers deposited into one of 

the safes at the hospital. Tribuzi shared this responsibility 

with June Walton and Glenda Moody, both of whom also had access 
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to the safe. After counting the money, a deposit slip would be 

completed and recorded. The money would be placed into a bank 

bag and given to a member of the hospital's security staff for 

deposit. 

 Latina Thomas, one of the cashiers, testified that she 

worked as a cashier from July 14, 1995 through July 17, 1995. 

Thomas testified that at the end of her shift she would count the 

money in the register, record the total on a "face sheet," and 

attach a register receipt to the face sheet. The register 

receipt was used to "verify the information contained in the 

[face] sheets." Although the amount indicated on the face sheet 

should match the amount reported on the cash register receipt, 

Thomas testified that the amounts sometimes differed. The 

discrepancies on Thomas' sheets for the four days varied from one 

dollar to several hundred dollars. Thomas could not explain the 

discrepancies. 

 Several other cashiers also testified that the cash register 

receipts and the face sheets often contained discrepancies. One 

cashier testified that the cash register receipt attached to her 

face sheet contained no indication of the cash she collected. 

She testified that at the end of her work shift she "counted what 

was in the register and [the register tape] didn't actually tell 

you how much you made." 

 Glenda Moody, the Cash Operations Manager for Nutrition 

Services, testified that she shared with Tribuzi the 
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responsibility for counting the money in the safe. Moody stated 

that the money was counted the morning after it was put in the 

safe and that the individual who counted the money would fill out 

a deposit slip and a cash register reconciliation sheet. Moody 

also testified that she and Tribuzi had discussed the cashiers' 

discrepancies in the past and that after Tribuzi ceased working 

at the hospital the discrepancies continued to appear. 

 Kenneth Taylor, the Director of Security, testified that he 

and his security staff had access to the safe where the cashiers 

deposited the money. Taylor stated that on July 20, 1995 he 

found the cashiers' face sheets pertaining to the period of July 

14, 1995 through July 17, 1995 in the trash can in Tribuzi's 

office. Taylor also testified that $1,800 had been taken from 

another hospital safe after Tribuzi ceased working at the 

hospital. 

 Timothy Patterson, the Internal Auditor for the hospital, 

was involved in the investigation of Tribuzi conducted by the 

hospital. Patterson determined that for the days of July 14 to 

July 17, a discrepancy of $1,010 existed between the amount of 

money the cashiers reported and the amount of money deposited in 

the bank. 

 June Walton, a Department Supervisor, testified that she was 

with Tribuzi when he counted the money on July 17 and 18. Walton 

testified that she did not see Tribuzi do anything improper or 

illegal. She also testified that the amount reported on a 
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cashier's face sheet and the amount of money the cashier put in 

the safe would sometimes differ. She further testified that 

Tribuzi initially was given the responsibility to count the money 

"[b]ecause the variances [detected in the cashiers' reports] were 

coming so close together, that money looked like it was missing." 

 At the conclusion of the Commonwealth's evidence, Tribuzi 

moved to strike the evidence on the grounds that the Commonwealth 

failed to prove venue and that the evidence was insufficient to 

prove embezzlement beyond a reasonable doubt. The trial judge 

offered to allow the assistant Commonwealth's attorney to reopen 

the case-in-chief to offer evidence concerning venue. The 

assistant Commonwealth's attorney stated that venue had been 

proved and declined the opportunity. The trial judge overruled 

Tribuzi's motions. 

 Tribuzi testified that the discrepancy problems in the 

cashiers' reconciliations were long standing. He said that he 

had sought to identify "whether it was a cashier problem, a cash 

register problem, or a theft." He had attempted to correct the 

problems through in-service training. 

 Tribuzi denied embezzling money. He testified that he 

counted the money the cashiers deposited during the period of 

July 14, 1995 through July 17, 1995 and noticed large 

discrepancies. Tribuzi testified that he planned to discuss the 

problem with Moody when she returned from her vacation leave. 

 Tribuzi also testified that he routinely placed papers in 
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his trash can and that he "used [his] trash can as a filing 

system" until he was sure that the papers were no longer needed. 

 He further testified that his office remained locked and that 

the security director was the only person who had a key to his 

office. He stated that the housekeeping staff could only enter 

his office when he was present. 

 At the close of Tribuzi's evidence, Tribuzi renewed his 

motions. The trial judge overruled the motions and convicted 

Tribuzi of embezzlement. 

 II. 

 "To establish the statutory crime of embezzlement under Code 

§ 18.2-111, it is necessary to prove that the accused wrongfully 

appropriated to [his] use or benefit, with the intent to deprive 

the owner thereof, the property entrusted to [him] by virtue of 

[his] employment or office." Waymack v. Commonwealth, 4 Va. App. 

547, 549, 358 S.E.2d 765, 766 (1987) (footnote omitted). In 

addition, the following principles are applicable to cases, such 

as this case, that are based on circumstantial evidence: 

 All necessary circumstances proved must be 

consistent with guilt and inconsistent with 

innocence. It is not sufficient that the 

evidence create a suspicion of guilt, however 

strong, or even a probability of guilt, but 

must exclude every reasonable hypothesis save 

that of guilt. To accomplish that the chain 

of circumstances must be unbroken and the 

evidence as a whole must be sufficient to 

satisfy the guarded judgment that both the 

corpus delicti and the criminal agency of the 

accused have been proved to the exclusion of 

any other reasonable hypothesis and to a 

moral certainty. 
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 * * * * * * * 

 A bookkeeper cannot be held criminally 

liable for embezzling funds merely because 

the funds received had not been deposited 

where there is an obvious lack of internal 

control and where persons other than the 

accused received funds and made some entries 

in the accounts in the absence of a showing 

that he converted the funds to his own use. 

Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29-30 

(1963). 

 The evidence proved that Tribuzi was not the only employee 

who had access to the money in the safe. The security staff had 

access to the safe. In addition, Glenda Moody testified that she 

and June Walton, who were also responsible for counting the money 

deposited by the cashiers, had access to the safe. Thus, the 

Commonwealth failed to disprove the reasonable hypothesis that 

another individual who had access to the safe removed money from 

the envelopes. 

 The evidence also established that the information reported 

by the cashiers contained numerous internal discrepancies. The 

total amount of money the cashiers reported often did not match 

the amount reported on the receipts produced by their registers. 

 To address this problem, Glenda Moody spoke to the cashiers to 

"re[inforce] accuracy . . . and . . . to make sure they [weren't] 

making errors in things like counting." This evidence supports a 

reasonable hypothesis that the amount of money the cashiers 

actually placed into the envelopes did not match the amount of 

money the cashiers reported on their face sheets. Simply put, 
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the evidence failed to exclude the reasonable hypothesis that the 

discrepancy was caused by counting errors committed by the 

cashiers. 

 Based on this evidence, we hold that the Commonwealth failed 

to "overcome the presumption of innocence and establish 

[Tribuzi's] guilt beyond a reasonable doubt." Id. at 34, 129 

S.E.2d at 29. Accordingly, we reverse the conviction and dismiss 

the indictment.1

 Reversed and dismissed. 

 

 1

Because we hold that the evidence was insufficient to support 

the embezzlement conviction, we need not address Tribuzi's 

contention that the evidence was insufficient to prove venue under 

Code § 19.2-244. Tribuzi's argument that the evidence failed to 

prove that the alleged offense occurred in the City of Richmond 

raises an issue of venue and does not constitute an allegation 

that the circuit court lacked jurisdiction, or inherent power, to 

decide this case. See Southern Sand and Gravel Co. v. Massaponax 

Sand and Gravel Corp., 145 Va. 317, 328, 133 S.E. 812, 815 (1926) 

("'That the action is tried in a county other than that declared 

by statute the proper county for its trial does not go to the 

jurisdiction, and does not invalidate the judgment.'") (citation 

omitted); cf. Garza v. Commonwealth, 228 Va. 559, 565-66, 323 

S.E.2d 127, 130 (1984) (stating that "all circuit courts have 

jurisdiction over all felonies committed in the Commonwealth").