COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Annunziata 

Argued at Salem, Virginia 

PATRICK D. ROONEY, III, a/k/a 

 FRANCIS PATRICK ROONEY, III 

 OPINION BY 

v. Record No. 1402-97-3 JUDGE SAM W. COLEMAN III 

 JUNE 30, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY 

William N. Alexander, II, Judge 

 H. Victor Millner, Jr., (Charles J. 

Strauss; H. Victor Millner, Jr., P.C., on 

brief), for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Code §§ 57-35.15 and 57-35.21 require that a cemetery 

company deposit into a trust account certain percentages of 

receipts from the sale of preneed and perpetual care burial 

property and services.1 Failure of a cemetery company to deposit 

receipts into the preneed and perpetual care trust accounts is a 

Class 1 misdemeanor. Code § 57-35.35. 

 

 1Code § 57-35.15 provides that "[e]ach cemetery company 

shall deposit a minimum of ten percent of the receipts from the 

sale of graves and above-ground crypts and niches . . . in [a] 

perpetual care trust fund within thirty days after the close of 

the month in which such receipts are paid to it." 

 Code § 57-35.21 provides that a cemetery company "deposit 

into a trust fund forty percent of the receipts from the sale of 

property or services pursuant to a preneed burial contract, when 

the delivery thereof will be delayed more than 120 days." Code 

§ 57-35.11 defines "preneed burial contracts" as agreements 

pertaining to burial property or services that are contracted for 

at any time other than the time of death or while death is 

imminent. 
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 Rooney Enterprises, Inc. (corporation) operated a cemetery 

in Franklin County. Upon receiving payments pursuant to preneed 

and perpetual care burial contracts, the corporation failed to 

make deposits into the preneed and perpetual care trust accounts. 

 Based upon the corporation's inaction, the president of the 

corporation, Patrick D. Rooney, III, was convicted under Code 

§ 57-35.35 for the corporation's failure to make deposits into 

trust accounts in accordance with Code §§ 57-35.15 and 57-35.21, 

and for embezzlement in violation of Code § 18.2-111. We hold 

that Rooney is not personally criminally liable for the 

corporation's failure to make the mandatory trust deposits and 

that the evidence is insufficient to support the embezzlement 

conviction. Accordingly, we reverse the convictions and dismiss 

the indictments. 

BACKGROUND

 The parties entered into a stipulation of facts, which 

stated that the corporation operated several cemeteries in 

Virginia and West Virginia. Rooney was the president of the 

corporation. On November 10, 1990, the corporation purchased 

Cedar Lawn Burial Park, Inc., a cemetery company which operated a 

Franklin County cemetery. The corporation operated the cemetery 

until May 6, 1991, when the Franklin County Circuit Court placed 

the corporation in receivership pending dissolution. 

 The corporation's accounting sheets, submitted by Rooney in 

his defense, indicated that the corporation received payments for 
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preneed and perpetual care burial property and services during 

the time period in question.2

 The parties stipulated that the 

corporation made no deposits into the cemetery's preneed and 

perpetual care trust accounts during its entire period of 

operation. They further stipulated that the corporation 

deposited all receipts into its central corporate account and 

used them to pay routine business expenses and salaries. Rooney 

testified that he was unaware of the statutory trust 

requirements. 

 On this evidence, the trial court convicted Rooney for 

violating Code §§ 57-35.15 and 57-35.21 by failing to deposit 

receipts into the preneed and perpetual care trust accounts and 

for embezzlement of the amounts withheld from the trust accounts. 

FAILURE TO MAKE PRENEED AND PERPETUAL CARE TRUST DEPOSITS

 Rooney contends the trial court erred by convicting him for 

the corporation's failure to deposit the requisite receipts in 

trust. He reasons that the statute does not impose strict 

criminal liability on a corporate officer for the corporation's 

 

 2The trial court held that the Commonwealth was 

"time-barred" from prosecuting Rooney for receipts that should 

have been placed in the trust accounts before April 28, 1991. 

Because the corporation was in receivership on May 6, 1991, the 

court's ruling relegated the Commonwealth to prosecuting Rooney 

for the corporation's failure to deposit receipts into the trust 

accounts on April 30, 1991 with respect to preneed and perpetual 

care payments received in March 1991. See Code §§ 57-35.15 and 

57-35.21 (requiring trust deposits to be made "within thirty days 

after the close of the month in which such receipts are paid" to 

the cemetery company). 
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violations of the trust provisions.3

 Criminal statutes are strictly construed against the 

Commonwealth and applied only to the classes of persons or 

entities which the legislature clearly intended to be within the 

statute's ambit. See King v. Commonwealth, 6 Va. App. 351, 

354-55, 368 S.E.2d 704, 706 (1988). Because Code § 57-35.35, 

making it a Class 1 misdemeanor to breach Code § 57-35.15 or 

57-35.21, is criminal in nature, it must be strictly construed, 

and any ambiguity or reasonable doubt as to its meaning or scope 

shall be resolved in favor of the defendant. See Mason v. 

Commonwealth, 16 Va. App. 260, 262, 430 S.E.2d 543, 543-44 

(1993); Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 

761 (1979). 

 We find that Code §§ 57-35.15 and 57-35.21 do not clearly 

specify that a corporate officer shall be criminally responsible 

for the corporation's failure to make deposits into the trust 

accounts. Those statutes place the responsibility of making the 

deposits on a "cemetery company." Code 57-35.11 defines a 

"cemetery company" as "any person engaged in the business of" 

selling certain burial property or services. The statutes are 

 

 3Rooney also argues that the evidence failed to prove that 

funds were received during the time period for which the 

corporation was required to make deposits into the trust 

accounts. Our review of the record indicates that Rooney failed 

to raise this issue to the trial court in arguing his motion to 

strike the evidence or his motion to dismiss. Thus, Rule 5A:18 

precludes our review of whether the corporation was required to 

make the deposits in the first instance. 
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clear that a corporation, individual or individuals operating as 

a cemetery company are strictly liable for failing to make the 

required trust deposits as a "person" engaged in the business of 

selling burial plots and services. See Landmark Communications, 

Inc. v. Commonwealth, 217 Va. 699, 702-03, 233 S.E.2d 120, 123 

(1977) (corporation may be "person" within meaning of criminal 

statute). It does not follow, however, that a corporate officer 

may be held personally liable under the statutes when the 

corporation is the "person" who violates the trust provisions. 

Cf. Code § 18.2-232 (imposing liability for criminal 

misrepresentation upon "[a]ny person, firm, association or 

corporation or officer, agent or employee thereof") (emphasis 

added); Code § 18.2-348 (proscribing "[a]ny person or any 

officer, employee or agent of any firm, association or 

corporation" from aiding prostitution or illicit sexual 

intercourse) (emphasis added). Accordingly, we hold that the 

statutes do not make corporate officers criminally liable for the 

corporation's failure to make the statutory trust deposits. 

 The Commonwealth argues that even if the statute does not 

provide for personal liability for corporate officers, the 

"responsible corporate officer" doctrine should apply to uphold 

the trial court's ruling that Rooney failed to make the requisite 

trust deposits. See United States v. Park, 421 U.S. 658 (1975); 

United States v. Dotterweich, 320 U.S. 277 (1943). In 

Dotterweich, the United States Supreme Court held that a 
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corporate officer may be held personally liable for the 

corporation's violation of strict liability provisions of the 

Federal Food, Drug and Cosmetic Act because the officer had a 

"responsible share in furtherance of the transaction which the 

statute outlaws." 320 U.S. at 284. In so holding, the Court 

found that the purposes of the FDCA "touch the lives and health 

of people which, in circumstances of modern industrialism, are 

largely beyond self-protection." Id. at 280. The Court also 

noted that the statute "dispenses with the conventional 

requirement for criminal conduct -- awareness of some 

wrongdoing." Id. at 281. Recognizing that "the only way a 

corporation can act is through the individuals who act on its 

behalf," the Court held that "[i]n the interest of the larger 

good [the FDCA] puts the burden of acting at hazard upon a person 

otherwise innocent but standing in a responsible relation to a 

public danger." Id. (emphasis added). Reaffirming Dotterweich, 

the Court in Park elaborated on Dotterweich's "responsible 

relation" test and held that strict liability under the FDCA may 

be imputed to a corporate officer who "had, by reason of his 

position in the corporation, responsibility and authority either 

to prevent in the first instance, or promptly to correct, the 

violation complained of, and that he failed to do so."4

 Park, 

 

 4The "responsible relation" standard of corporate officer 

liability developed in Dotterweich and Park has become commonly 

referred to as the "responsible corporate officer doctrine." 

See, e.g., United States v. MacDonald & Watson Waste Oil Co., 933 

F.2d 35, 50 (1st Cir. 1991); In Re Dougherty, 482 N.W.2d 485, 

489-90 (Minn. Ct. App. 1992). 
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421 U.S. at 673. 

 Assuming, without deciding, that the "responsible corporate 

officer" doctrine is applicable, as the Attorney General argues, 

to the preneed and perpetual care trust requirements of Code 

§§ 57-35.15 and 57-35.21,5

 we find the evidence, viewed in the 

light most favorable to the Commonwealth, see Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975), 

failed to prove that Rooney had a "responsible relation" to the 

corporation's obligation and failure to make the trust deposits. 

 Although a corporate president has overall responsibility for 

the duties and obligations of the corporation and the 

responsibility to ensure compliance with legal requirements, the 

responsible corporate officer doctrine imposes criminal 

responsibility only upon the officer or officers who are directly 

responsible or accountable for the corporation's compliance. 

Whether a corporate officer has a direct responsibility to 

fulfill or comply with a legal obligation "depends 'on the 

 

 5See United States v. Cordoba-Hancapie, 825 F. Supp. 485, 

508 (1993) ("In cases involving matters traditionally within the 

public-welfare realm -- dangerous food, misbranded 

pharmaceuticals, toxic substances and the like -- the strong 

public interests in enforcing the regulations at issue may 

arguably be viewed as justifying imposition of a strict duty of 

supervision and control upon corporate officers [as in Park and 

Dotterweich]."); Dougherty, 482 N.W.2d at 489-90 (applying 

responsible corporate officer doctrine to state hazardous waste 

laws that "pervasively affect activities which threaten human 

health and safety"). See also Norman Arbams, Criminal Liability 

of Corporate Officers for Strict Liability Offenses -- A Comment 

on Dotterweich and Park, 28 UCLA L. Rev. 463, 475-77 (1981) 

(discussing implications of Dotterweich and Park). 
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evidence produced at trial and its submission -- assuming the 

evidence warrants it -- to the jury under appropriate guidance.'" 

Park, 421 at 669 (quoting Dotterweich, 320 U.S. at 284). Here, 

the stipulation of 
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facts stated only that Rooney was the president of the 

corporation. However, the Supreme Court made clear that an 

officer's direct responsibility to fulfill a legal duty may not 

be predicated solely on the basis of the officer's title or 

position in the corporation. See Park, 421 U.S. at 674 

(upholding jury instruction which "did not permit the jury to 

find guilt solely on the basis of respondent's positions in the 

corporation [but rather] fairly advised the jury to find guilt it 

must find respondent had a responsible relationship to the 

situation"); Dotterweich, 320 U.S. at 285 (declining to "define 

or even to indicate by way of illustration the class of employees 

which stands in . . . a responsible relation" to a corporation's 

misconduct). The Commonwealth produced no evidence describing 

Rooney's duties, powers, and responsibilities as president of the 

corporation, or that he had an accounting responsibility or 

direct corporate responsibility for withholding or depositing the 

funds in trust. Compare United States v. New England Grocers 

Supply Co., 488 F. Supp. 230, 233-34 (D. Mass. 1980) (government 

failed to prove responsible relation where evidence merely showed 

that accused was chief executive officer of corporation), with

Park, 421 U.S. at 663 n.7, 664 (relying upon description of 

president's duties and powers in corporation's bylaws and 

defendant's concession that conduct in question was something 

that he was "responsible for in the entire operation of the 
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company"), and United States v. Acri Wholesale Grocery Co., 409 

F. Supp. 529, 535 (S.D. Iowa 1976) (officers' testimony and 

statements to inspectors regarding responsibility and authority 

established responsible relation to corporation's misconduct). 

 Thus, even if the "responsible corporate officer" doctrine 

applies, Rooney may not personally be held criminally liable for 

the corporation's violation of Code §§ 57-35.15 and 57-35.21 

because the evidence failed to prove that Rooney had a 

"responsible relation" to the corporation's obligation to make 

preneed and perpetual care trust deposits. 

EMBEZZLEMENT

 Rooney next contends the evidence is insufficient to support 

the embezzlement conviction. When the sufficiency of the 

evidence is challenged on appeal, we determine whether the 

evidence, viewed in the light most favorable to the Commonwealth, 

and the reasonable inferences fairly deducible from that evidence 

support each and every element of the charged offense. See Moore 

v. Commonwealth, 254 Va. 184, 186, 491 S.E.2d 739, 740 (1997); 

Derr v. Commonwealth, 242 Va. 413, 424, 410 S.E.2d 662, 668 

(1991). Under familiar principles of appellate review, we will 

not reverse the judgment of the trial court, sitting as the 

finder of fact in a bench trial, unless it is plainly wrong or 

without evidence to support it. See Martin v. Commonwealth, 4 

Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 
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 To establish the crime of embezzlement,6

 the Commonwealth 

must prove that the accused wrongfully appropriated to his or her 

own benefit property entrusted or delivered to the accused with 

the intent to deprive the owner thereof. See Zoretic v. 

Commonwealth, 13 Va. App. 241, 243, 409 S.E.2d 832, 833-34 

(1991). Although the Commonwealth need not establish the 

existence of a formal fiduciary relationship, it must prove that 

the defendant was entrusted with the property of another. See

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

(1988). Furthermore, the Commonwealth must prove that the 

defendant had the specific intent of depriving the rightful owner 

of property entrusted to him or her. See Waymack v. 

Commonwealth, 4 Va. App. 547, 549-50, 358 S.E.2d 765, 766 (1987). 

 

 6Code § 18.2-111 provides, in pertinent part, that 

 [i]f any person wrongfully and fraudulently 

use, dispose of, conceal or embezzle any 

money . . . , which he shall have received 

for another . . . or by virtue of his office, 

trust, or employment, or which shall have 

been entrusted or delivered to him by another 

. . . he shall be guilty of embezzlement. 
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 The evidence is insufficient to support the embezzlement 

conviction in two respects. First, the evidence failed to prove 

that either Rooney or the corporation was "entrusted" with the 

property of another. Code §§ 57-35.15 and 57-35.21 required the 

corporation to deposit certain percentages of receipts from the 

sale of certain burial property and services into the preneed and 

perpetual care trust accounts. The monies paid to the 

corporation as consideration for preneed and perpetual care 

property and services belonged to the corporation; they were not 

"entrusted" to the corporation with the expectation that the 

corporation would return the monies or deliver them to a third 

person. Cf. Gwaltney v. Commonwealth, 19 Va. App. 468, 475-76, 

452 S.E.2d 687, 691-92 (1995) (finding monies paid by customers 

of convenience store to be "entrusted" to store's cashiers). The 

monies were paid to the corporation as consideration for property 

or services that the corporation would provide the purchaser in 

the future. The statute governs the corporation's management of 

its own property in order to ensure that it will have adequate 

monetary resources to deliver future burial property or services. 

 Thus, the evidence failed to establish that receipts from the 

sale of preneed and perpetual care property and services were 

property that belonged to another and were "entrusted" to the 

corporation or to Rooney. 

 Second, even assuming the corporation's failure to fund the 

trust accounts constituted embezzlement, the evidence is 
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insufficient to impute personal criminal liability to Rooney. 

 [T]he general rule is that where the crime 

charged involves guilty knowledge or criminal 

intent, it is essential to the criminal 

liability of an officer of a corporation that 

he actually and personally did the acts which 

constitute the offense, or that they were 

done under his direction or with his 

permission. 

Bourgeois v. Commonwealth, 217 Va. 268, 274, 227 S.E.2d 714, 718 

(1976); see 26 Am.Jur.2d Embezzlement § 30 at 380 (1987) ("An 

officer of a corporation may be held criminally liable for the 

embezzlement or larceny of the property of a third person through 

a corporate act, if the act is done by the individual officer, at 

her direction, or with her permission."). In the present case, 

the only proof of Rooney's involvement with the funds is the 

stipulation that he was the corporation's president. The record 

is devoid of any evidence that Rooney misappropriated the funds 

for his personal use or for non-corporate purposes or that he 

directed or approved such misappropriation. Cf. Compton v. 

Commonwealth, 22 Va. App. 751, 756, 473 S.E.2d 95, 97 (1996). 

 For the foregoing reasons, we reverse the convictions and 

dismiss the charges. 

 Reversed and dismissed.