Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and 

Agee, JJ., and Carrico, S.J. 

JEREMY DION DIMAIO 

OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR. 

v. Record No. 052556 November 3, 2006 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we consider whether the Commonwealth 

presented sufficient evidence of value to support convictions 

for computer fraud in violation of Code § 18.2-152.3 and 

larceny in violation of Code § 18.2-111. 

 Jeremy Dion DiMaio was convicted in a bench trial of 

computer fraud in violation of Code § 18.2-152.3; computer 

trespass in violation of Code § 18.2-152.4(A); embezzlement in 

violation of Code § 18.2-111;1 and attempted extortion in 

violation of Code §§ 18.2-59 and -26. His convictions were 

affirmed by the Court of Appeals in DiMaio v. Commonwealth, 46 

Va. App. 755, 621 S.E.2d 696 (2005). We awarded DiMaio an 

appeal limited to the issues whether the Commonwealth 

established the value necessary for convictions of computer 

fraud and larceny. 

 Applying well-established principles of appellate review, 

we will consider the evidence and all reasonable inferences 

fairly deducible therefrom in the light most favorable to the 
Commonwealth, the prevailing party below. Rose v. 

Commonwealth, 270 Va. 3, 6, 613 S.E.2d 454, 455 (2005); 

Correll v. Commonwealth, 269 Va. 3, 6, 607 S.E.2d 119, 120 

(2005); Zimmerman v. Commonwealth, 266 Va. 384, 386, 585 

S.E.2d 538, 539 (2003); Phan v. Commonwealth, 258 Va. 506, 

508, 521 S.E.2d 282, 282 (1999). When a defendant contests 

the sufficiency of the evidence on appeal, this Court must 

give the judgment of the circuit court sitting without a jury 

the same weight as a jury verdict. Commonwealth v. Duncan, 

267 Va. 377, 384, 593 S.E.2d 210, 214 (2004); McCain v. 

Commonwealth, 261 Va. 483, 492, 545 S.E.2d 541, 547 (2001); 

Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 

(2001); Hickson v. Commonwealth, 258 Va. 383, 387, 520 S.E.2d 

643, 645 (1999). Upon review of the evidence, this Court will 

affirm the circuit court's judgment unless it is plainly wrong 

or without evidence to support it. Code § 8.01-680; Duncan, 

267 Va. at 384, 593 S.E.2d at 214; Jackson v. Commonwealth, 

267 Va. 178, 204, 590 S.E.2d 520, 535 (2004); McCain, 261 Va. 

at 492-93, 545 S.E.2d at 547; Tarpley, 261 Va. at 256, 542 

S.E.2d at 763; Phan, 258 Va. at 511, 521 S.E.2d at 284. 

 Jeremy Dion DiMaio was employed as the director of human 

resources for S&M Brands, Inc., trading as Bailey's 

 1

 Pursuant to Code § 18.2-111, embezzlement referred to in 

this statute is "deemed larceny." 

2
Cigarettes. William W. Snell served as vice-president and 

chief financial officer of S&M Brands. 

 In July 2003, S&M Brands made a loan of $6,500 to DiMaio, 

memorialized in a written loan agreement signed by DiMaio and 

Stephen Bailey, president of S&M Brands. DiMaio agreed that 

repayment for the loan, both principal and interest, would be 

by fixed deduction from his payroll checks commencing in 

January 2004. 

 DiMaio informed S&M Brands on April 7, 2004, that he 

planned to resign as director of human resources effective 

April 23, 2004. After DiMaio had submitted his letter of 

resignation, Bailey learned that DiMaio had contacted an 

employee in the company's payroll department and directed her 

to refrain from deducting loan payments from his payroll 

checks and that she had complied with his request. 

 DiMaio was required, pursuant to the terms of the loan 

agreement, to repay the balance due on the loan within five 

days from the date of resignation or termination of his 

employment from S&M Brands. Bailey agreed to extend the 

period of repayment provided DiMaio gave S&M Brands the 

proceeds from his final payroll check and return a check that 

had been issued to DiMaio for his unused vacation time. Even 

though DiMaio had agreed to this arrangement, he refused to 

comply. When Bailey learned that DiMaio had failed to honor 

3
this agreement, he fired DiMaio and asked him to leave the 

company's premises immediately. 

 Bailey appointed Snell to serve as the interim human 

resources director after DiMaio's termination. When Snell 

assumed the position, he discovered that certain files that 

had been located on the computer that S&M Brands had issued to 

DiMaio were missing. S&M Brands' entire human resource 

directory, including business forms and templates, had been 

removed from the computer. Approximately 829 personnel files 

were missing. Additionally, signed covenants not to compete 

that S&M Brands had executed with its employees had been 

physically removed from S&M Brands' premises. 

 Snell contacted DiMaio and inquired about the missing 

computer data. DiMaio responded that he had transferred the 

computer documents to an off-site server and that he would be 

"willing to provide the files to the company under the right 

circumstances." "[DiMaio] told me that the documents were not 

on the computer, and they were not on the server, which has 

designated password protection for confidential documents in 

the [human resources] area. I asked him where they were, and 

he told me that they were on a secure third-party server on 

the Internet. And that he had placed them there. I didn't 

have to worry because he had them in a secure location. I 

asked him how I was going to get a hold of them, and he said 

4
that he would be willing to provide the files to the company 

under the right circumstances. And he expressed some interest 

in establishing an agreement between himself and the company 

that would return the files in exchange for forgiveness of the 

debt that he had personally with S&M Brands." 

 DiMaio encountered Michael Mills, S&M's information 

technology director, at a social event. DiMaio told Mills: 

"[D]on't bother looking for the files, because they're not 

there." 

Subsequently, police officers executed a search warrant 

at DiMaio's home. The police officers conducted a search of 

DiMaio's computer and located data that DiMaio had taken from 

S&M Brands. The police officers also found original covenants 

not to compete, hidden in DiMaio's kitchen, that DiMaio had 

also taken from S&M Brands. The covenants not to compete were 

original documents that S&M Brands had executed with its 

employees. 

 Snell, who had experience in evaluating companies and 

properties, qualified as an expert witness, without objection, 

and was permitted to render opinions regarding the market 

value of the 829 personnel files that DiMaio had taken. He 

testified that the fair market value of the files exceeded 

$10,000. Snell also testified, over DiMaio's objection that 

is not the basis of an assignment of error in this appeal, 

5
that the value of the personnel files that DiMaio took "would 

be tens of thousands of dollars or worse . . . that the value 

of the documents of the company could be much greater." 

 Everett W. Gee, III, "in-house counsel" for S&M Brands, 

testified, without objection, that the fair market value of 

just the computer files that DiMaio took "would run you 

somewhere at $3,790 . . . for a HR software package that would 

cover a sliver of the forms that we had." Gee also testified, 

without objection, that the value of the covenants not to 

compete exceeded $5,000. He explained that he had researched 

the jurisprudence in ten states where S&M Brands has employees 

and that the covenants not to compete were created to comply 

with the employment laws of those states. He testified as 

follows: 

"The document itself, as a lawyer, I sell documents 

such [as] this inasmuch as I [bill] and collect it, 

$5,000 or $6,000 or $7,000 in time to draft a 

noncompete, a confidential information agreement 

which I have done, and over the years it has been 

many. 

 "But if you were talking about a sale of our 

business, if I was a potential purchaser of S&M 

Brands, I would want to ensure that when I was 

purchasing the company in this stock sale and asset 

sale, that there was some reasonable and covenant 

protection, so if I buy S&M Brands and all of a 

sudden S&M Brands employees don't go, you know, to 

the wind, because each particular sales rep that we 

have, the value to the company is extremely 

significant, on average, a little over a $100,000 a 

month." 

6
Gee also stated that he could receive "$5,000 to $6,000 just 

for the form" if he sold the form to a willing buyer. 

DiMaio argues that the Commonwealth failed to establish 

the value of the computer records and, therefore, as a matter 

of law, the evidence was insufficient to support a conviction 

of computer fraud.2 We disagree. 

 Proof that property has some value is sufficient to 

sustain a conviction of petit larceny, but when the value of 

the items stolen determines the grade of the offense, the 

value must be alleged, and the Commonwealth must prove, beyond 

a reasonable doubt, the value satisfies the statutory 

requirement for felony larceny. Robinson v. Commonwealth, 258 

Va. 3, 5, 516 S.E.2d 475, 476 (1999); Parker v. Commonwealth, 

254 Va. 118, 120-21, 489 S.E.2d 482, 483 (1997); Walls v. 

Commonwealth, 248 Va. 480, 481, 450 S.E.2d 363, 364 (1994); 

Knight v. Commonwealth, 225 Va. 85, 88, 300 S.E.2d 600, 601 

(1983); Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d 

792, 792 (1981); Wright v. Commonwealth, 196 Va. 132, 139, 82 

S.E.2d 603, 607 (1954). We have stated that "[t]he test is 

 2

 Code § 18.2-152.3 states in relevant part: 

 "Any person who uses a computer or computer 

network, without authority and: 

 "1. Obtains property or services by false 

pretenses; 

 "2. Embezzles or commits larceny; or 

 "3.Converts the property of another; is guilty of 

the crime of computer fraud." 

7
market value, and particularly retail value." Robinson, 258 

Va. at 5, 516 S.E.2d at 476. 

 The Commonwealth presented sufficient evidence to 

establish that the value of the computer records that DiMaio 

took exceeded $200.00. For example, Snell testified, without 

objection, that the fair market value of the 829 personnel 

files that DiMaio took had a fair market value in excess of 

$10,000.3 Gee testified, without objection, that the files had 

a value far in excess of $3,790. 

 DiMaio, relying upon a headnote appended to our decision 

in Lund v. Commonwealth, 217 Va. 688, 232 S.E.2d 745 (1977), 

argues that the Commonwealth failed to establish that the 

value of the computer files exceeded $200. We disagree. 

 Initially, we note that headnotes are not authoritative 

statements of the law of this Commonwealth. Headnotes are the 

"abstract of the points decided in each case" required by Code 

§ 17.1-322. However, the authoritative statements of case law 

are contained in the text of opinions issued by this Court. 

Additionally, our decision in Lund v. Commonwealth is not 

pertinent to the resolution of this appeal. The defendant in 

Lund was indicted for violation of statutes that related to 

 3

 In Walls v. Commonwealth, 248 Va. 480, 482-83, 450 

S.E.2d 363, 364-65 (1994), we discussed the admissibility of 

opinion testimony to establish value in a larceny prosecution. 

8
larceny by false pretense. In Lund, we emphasized that the 

defendant was charged with certain crimes related to the use 

of a computer and the unauthorized use of the computer, but at 

that time, those acts did not constitute the crime of larceny. 

217 Va. at 692, 232 S.E.2d at 748. Additionally, we held that 

the Commonwealth failed to establish the value of the items 

that were purportedly taken. Id. at 692-93, 232 S.E.2d at 

748-49. In the appeal before this Court, unlike the situation 

in Lund, the Commonwealth established fair market value of the 

items taken through the testimony of Gee and Snell, and the 

current penal statutes prohibit the use of a computer in the 

commission of a felony. 

 DiMaio also argues that the Commonwealth failed to 

establish the value of the covenants not to compete and, 

therefore, his conviction for larceny cannot be sustained. We 

disagree. As we previously stated, Gee testified, without 

objection, that he had created a specialized form that 

complied with the laws of ten states when he drafted the 

covenants not to compete and that the market value of the form 

was between $5,000 and $7,000. DiMaio did not object to this 

testimony, and the admissibility of this testimony is not 

challenged in this appeal. This evidence of value is 

 

The litigants in this appeal do not raise any issues regarding 

the admissibility of the testimony of Snell and Gee. 

9
sufficient to satisfy the statutory requirement for the crime 

of larceny.4

 For the foregoing reasons, we will affirm the 

convictions. 

Affirmed. 

 4

 We do not consider DiMaio's argument that "in-house 

counsel" and the president of S&M Brands should not have been 

permitted to testify regarding the fair market value of the 

property DiMaio took. DiMaio did not object to the admission 

of such testimony, and he does not challenge the circuit 

court's reliance on such testimony with an assignment of 

error. 

10