COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Bumgardner 

Argued at Richmond, Virginia 

JEREMY DION DIMAIO 

 OPINION BY 

v. Record No. 2851-04-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 NOVEMBER 15, 2005 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF LUNENBURG COUNTY 

Leslie M. Osborn, Judge 

 G. Russell Stone, Jr. (Cary B. Bowen; Bowen, Champlin, Carr, 

Foreman & Rockecharlie, on brief), for appellant. 

 Denise C. Anderson, Assistant Attorney General (Judith Williams 

Jagdmann, Attorney General, on brief), for appellee. 

 Jeremy Dion DiMaio (appellant) was found guilty in a bench trial of computer fraud, 

computer trespass, embezzlement and attempted extortion in violation of Code §§ 18.2-152.3, 

18.2-152.4,1

 18.2-111, and 18.2-59, respectively. Appellant argues that the evidence was 

insufficient to prove: (1) the value of the computer records, (2) the value of the non-compete 

agreements, (3) that he attempted to commit extortion and (4) that he possessed the requisite 

criminal intent for each charged offense. We hold that the evidence was sufficient and affirm the 

decision of the trial court. 

 1

 While appellant contended in his brief that the evidence did not prove that property was 

damaged for the purpose of misdemeanor computer trespass, counsel conceded at oral argument 

that Code § 18.2-152.4 did not include such a requirement for a misdemeanor conviction. Thus, 

we need not address that issue. 
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I. BACKGROUND 

 We view the evidence in the light most favorable to the Commonwealth, regarding as 

true all credible evidence supporting the Commonwealth’s position. Summerlin v. 

Commonwealth, 37 Va. App. 288, 294-95, 557 S.E.2d 731, 735 (2002). 

So viewed, the evidence establishes that S & M Brands, Inc. (S & M) employed appellant 

as its human resource director. In 2003, appellant secured a $6,000 loan from S & M that he 

agreed to repay, by deductions from his paycheck, beginning in January 2004. 

 On April 7, 2004, appellant announced his resignation and gave an anticipated departure 

date of April 23, 2004. After appellant submitted his resignation, S & M discovered that on two 

occasions appellant had contacted the payroll department and directed them not to deduct the 

loan funds from his paycheck. This occurred once before the January 2004 deduction was 

scheduled to occur and once before the February 2004 deduction was to occur. S & M agreed to 

extend the period of repayment so long as appellant paid the company his vacation check and his 

last payroll check. However, appellant ordered the payroll department to make both checks 

directly payable to him. When S & M discovered this on April 15, S & M terminated appellant’s 

employment and ordered him to immediately leave the building. 

 After appellant announced his intention to resign, he transferred over 829 files from his 

computer at work to a secure third party server and deleted the files from his work computer. 

Appellant was the only person who knew the password to the server. Appellant testified that he 

did this so that he could organize the files at home to make the transition for the new human 

resource employee easier. He told at least one other employee in the office that he was moving 

the files. After appellant left, William Snell (Snell), vice-president and chief financial officer of 

S & M, assumed appellant’s position and discovered that all of the company’s essential human 

resource computer files were missing. The missing files included business forms and templates, 
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such as employee agreements, offer letters, sales manuals, insurance forms and non-compete 

agreements. 

 When Snell contacted appellant, Snell testified that appellant said “he would be willing to 

provide the files to the company under the right circumstances,” namely establishing an 

agreement to “return the files in exchange for forgiveness of the debt.” Appellant denied this 

conversation. Appellant also later met Mike Mills, the information technology director for 

S & M, and told him not to bother looking for the files on his work computer, because they 

would not be there. The appellant was not authorized to move the files to another computer. 

 When police officers came to appellant’s house to execute a search warrant, appellant 

gave them the password and allowed them to access the missing files on his home computer. 

The officers also found various human resource documents at his house, including seventy to 

ninety non-compete agreements and copies of S & M’s employee handbook.2

 The non-compete 

agreements were ordinarily located in each employee’s file at S & M, and appellant had to 

manually remove them from each file in order to transfer them to his house. Appellant had no 

permission to remove these files from the company. 

 At a bench trial on September 7, 2004, Stephen Bailey (Bailey), president of S & M, 

testified, inter alia, that employees were paid from $800 to $1,000 to sign the non-compete 

agreements; that the employee handbook was worth $5,000; that the value of a non-compete 

agreement would be about $6,000; that two particular computer files would cost $11,000; and 

that all of the computer files together would cost in excess of $100,000. He based these opinions 

on the replacement cost to the company. Snell also opined that it would cost tens of thousands of 

dollars to replace the missing employee files. 

 2

 At least two of the missing non-compete documents were never recovered by S & M. 
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 In addition to the testimony of the company’s president, E.W. Gee, III (Gee), in-house 

counsel for S & M since 2001, testified that the non-compete agreements were worth 

approximately $5,000 to $7,000, based on the cost to create the initial documents. When asked at 

what price he would sell the non-compete form, he answered “$5,000 or $6,000 or $7,000” 

simply for the documents. He also stated that the total cost to replace the computer files would 

be in excess of $50,000, and at the very least, to repurchase basic software would cost nearly 

$3,790. 

 After hearing this evidence, the trial judge found appellant guilty of computer fraud, 

computer trespass, embezzlement, and attempted extortion.3

 

II. ANALYSIS 

 Appellant argues that the evidence was insufficient to prove four separate items: the 

value of the computer records for the purposes of computer fraud; the value of the non-compete 

agreements and other human resource documents for embezzlement; that appellant threatened 

S & M for attempted extortion; and the criminal intent of the appellant for each offense. We 

disagree, and affirm the judgment of the trial court. 

 We review the evidence in the light most favorable to the Commonwealth, “‘granting to 

it all reasonable inferences fairly deducible therefrom’” and regarding as true all credible 

evidence supporting the Commonwealth’s position. Summerlin, 37 Va. App. at 294-95, 557 

S.E.2d at 735 (citations omitted). We will not disturb a factual finding unless it is “plainly 

wrong or unsupported by the evidence.” Riner v. Commonwealth, 268 Va. 296, 320, 601 S.E.2d 

555, 568 (2004). Further, the credibility of witnesses, the weight accorded to their testimony, 

 3

 The trial court reconsidered the issue of guilt as to the felony computer trespass on 

November 17, 2004, and determined that appellant was guilty of misdemeanor, and not felony, 

computer trespass. 
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and any inferences drawn from proven facts are matters “‘solely for the factfinder’s 

determination.’” Id. (citations omitted). 

A. COMPUTER FRAUD – VALUE 

Code § 18.2-152.3 distinguishes between two classes of computer fraud: “[i]f the value 

of the property or services obtained is $200 or more, the crime of computer fraud shall be 

punishable as a Class 5 felony,” but where the value is under $200, the crime is punishable as a 

Class 1 misdemeanor.4 Appellant contends that the trial court erred in convicting him of felony 

computer fraud because the evidence failed to prove the value of the files transferred from his 

computer at work to the third party server. 

Where the value of a thing “determines the grade of the offense, the value must be 

alleged and the Commonwealth must prove the value to be the statutory amount.” Wright v. 

Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954); see also Walls v. 

Commonwealth, 248 Va. 480, 481, 450 S.E.2d 363, 364 (1994) (“The value of the goods 

specified in the statute is an essential element of the crime, and the Commonwealth must prove 

that element beyond a reasonable doubt.”). This does not require an exact dollar amount to be 

proven, however. Wright, 196 Va. at 139, 82 S.E.2d at 607 (upholding the conviction where 

 4

 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. 

If the value of the property or services obtained is $ 200 or 

more, the crime of computer fraud shall be punishable as a Class 5 

felony. Where the value of the property or services obtained is less 

than $ 200, the crime of computer fraud shall be punishable as a 

Class 1 misdemeanor. 

Code § 18.2-152.3. 
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“neither the exact number of dollars stolen . . . nor the exact number of dollars received” was 

shown). The value of the item is measured as of the time of the fraud, and is assessed only as to 

the parts affected, and not the entire property of which the item is a part. Parker v. 

Commonwealth, 254 Va. 118, 121, 489 S.E.2d 482, 483-84 (1997). 

There are a number of ways to prove the value of an asset. It can be established by a lay 

opinion of the property’s fair market value, Crowder v. Commonwealth, 41 Va. App. 658, 664 

n.3, 588 S.E.2d 384, 387 n.3 (2003), by an expert’s opinion, Kern v. Commonwealth, 2 Va. App. 

84, 88, 341 S.E.2d 397, 399-400 (1986), or by traditional accounting principles, starting with the 

original cost of the item and then factoring in depreciation or appreciation, Dunn v. 

Commonwealth, 222 Va. 704, 705, 284 S.E.2d 792, 792 (1981). Where an item has no market 

value, its actual value must be shown. Lund v. Commonwealth, 217 Va. 688, 232 S.E.2d 745 

(1977). 

Generally, “the opinion testimony of the owner of personal property is competent and 

admissible on the question of the value of such property, regardless of the owner’s knowledge of 

property values.” Walls, 248 Va. at 482, 450 S.E.2d at 364. Another non-expert, non-owner, 

may testify “provided the witness possesses sufficient knowledge of the value of the property or 

has had ample opportunity for forming a correct opinion as to value.” Id. at 483, 450 S.E.2d at 

365. 

 Bailey, the president of S & M, testified that two particular computer files would cost 

$11,000 and that all of the computer files together would cost in excess of $100,000. Snell, 

vice-president and chief financial officer, opined that it would cost tens of thousands of dollars to 

replace the missing files. Gee, in-house counsel and drafter of a number of the documents in the 

computer files, stated that the total cost to replace the computer files would be in excess of 

$50,000. He testified that at a minimum, it would cost approximately $3,790 to replace the basic 
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software forms. All three men’s testimony was competent, as they had the requisite experience 

with the items to form a valid opinion as to value, and their opinions were uncontroverted. 

Bailey and Snell, as key executives, were familiar with the computer system and the value of 

items on that system. Gee wrote or reviewed many of the documents that were transferred, and 

thus had firsthand knowledge of their value. 

Appellant relies on Lund to support his argument that the Commonwealth failed to prove 

value. Lund is distinguishable from this case. In Lund, the Supreme Court reversed a larceny 

conviction because the goods taken “had no ascertainable monetary value.” 217 Va. at 693, 232 

S.E.2d at 748. The Court noted that the cost of producing the stolen items was not the proper 

method of valuation, but rather actual value was the proper measure. Id. at 692, 232 S.E.2d at 

748. In this case the computer files had actual value to the company. The president, 

vice-president, and in-house counsel to S & M all testified that the computer files, standing 

alone, were worth considerably more than the threshold felony amount of $200. Therefore, Lund

does not control the analysis in this case. 

The trial court weighed the credibility of those witnesses, the basis of their knowledge of 

the records and computer system, and their experience with the company, and found that their 

testimony established that the computer files that appellant removed from the company computer 

system were worth more than $200. The evidence supports the trial court’s finding beyond a 

reasonable doubt. 

B. EMBEZZLEMENT – VALUE 

Appellant next contends that the trial court erred in convicting him of felony 

embezzlement because the evidence was insufficient to prove that the value of the non-compete 

agreements and other human resource documents found at his home was greater than $200. 
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Embezzlement, like computer fraud, carries a greater punishment if the value of goods 

embezzled is more than $200. Code §§ 18.2-111, 18.2-95.5 

The analysis of value for the computer files is identical to the analysis for the 

non-compete agreements: the Commonwealth must prove that the value of the agreements was 

greater than $200 and can prove value in any probative way. Wright, 196 Va. at 139, 82 S.E.2d 

at 607. The Commonwealth proved both market and actual value. 

Bailey stated that the value of a non-compete agreement would be about $6,000. He 

testified that the employee handbook would cost “in excess of $10,000. We’re talking about fair 

market value at this point.” Gee, who drafted the non-compete agreement, testified that the 

non-compete agreements were worth $5,000 to $7,000, based on the cost to create the 

documents. However, in response to a question about how much one of the non-compete 

agreements would cost if it were to be sold to someone else, Gee remarked “the form itself, 

again, $5,000 or $6,000 just for the form.” Gee also noted that much of the value in the 

agreements was evidentiary—while the agreements could be enforced without the actual signed 

paper, it would be more difficult and more costly to do so. Both men were familiar with the 

 5

 Code § 18.2-111 provides that 

[i]f any person wrongfully and fraudulently use, dispose of, 

conceal or embezzle any money, bill, note, check, order, draft, 

bond, receipt, bill of lading or any other personal property, tangible 

or intangible, which he shall have received for another or for his 

employer, principal or bailor, or by virtue of his office, trust, or 

employment, or which shall have been entrusted or delivered to 

him by another or by any court, corporation or company, he shall 

be guilty of embezzlement. Proof of embezzlement shall be 

sufficient to sustain the charge of larceny. Any person convicted 

hereunder shall be deemed guilty of larceny and may be indicted as 

for larceny and upon conviction shall be punished as provided in 

§ 18.2-95 or § 18.2-96. 
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employee handbook, the non-compete agreements, and the cost to the company to replace the 

documents as well as what they were worth on the open market. 

Based on this evidence, the trial court determined that the value of the non-compete 

agreements and other human resource documents found at appellant’s house was more than 

$200. The evidence proves beyond a reasonable doubt the value of the non-compete agreements. 

C. ATTEMPTED EXTORTION 

Appellant next argues that the trial court erred in convicting him of attempted extortion, 

in violation of Code § 18.2-59, because the evidence was insufficient to prove that he made a 

threat. Code § 18.2-59 makes it a felony for any person to “threaten injury to the character, 

person, or property of another person . . . and thereby extort money, property, or pecuniary 

benefit.”6

 A threat is a communication relaying an intention to injure another’s person or 

property which, taken in context, reasonably causes the listener to believe that the speaker will 

carry out his intention. Summerlin, 37 Va. App. at 297, 557 S.E.2d at 736. “In determining 

whether words were uttered as a threat the context in which they were spoken must be 

considered.” Parnell v. Commonwealth, 15 Va. App. 342, 345, 423 S.E.2d 834, 836 (1992). 

The court, as a result, must view the totality of the circumstances under which the statement was 

made. A threat need not be direct—it may be a “‘veiled statement[] nonetheless implying injury 

to the recipient when viewed in all the surrounding circumstances.’” Keyes v. Commonwealth, 

39 Va. App. 294, 302, 572 S.E.2d 512, 516 (2002) (citations omitted). 

 6

 Code § 18.2-59 mandates that 

[i]f any person threaten injury to the character, person, or property 

of another person or accuse him of any offense and thereby extort 

money, property, or pecuniary benefit or any note, bond, or other 

evidence of debt from him or any other person, he shall be guilty 

of a Class 5 felony. 
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Snell testified that when he called appellant after his termination to discuss the missing 

files, appellant stated “he would be willing to provide the files to the company under the right 

circumstances” and that he would “return the files in exchange for forgiveness of the debt.” 

Appellant denied making those statements. The facts belie this assertion. Appellant had 

previously attempted to cancel his debt to S & M by directing payroll not to deduct the monthly 

payments from his paycheck on two separate occasions. Appellant told the information 

technology director “don’t bother looking for the files, because they’re not there.” However, 

appellant did not have permission to remove the files from the company. The computer files 

were, in fact, located on a third party server for which only appellant knew the password. S & M 

had no way of accessing any of their human resource documents, nor was S & M able to retrieve 

their employees’ non-compete agreements until a search warrant of appellant’s home was 

executed. Appellant, in effect, intended to keep the information and files hostage until his 

$6,000 debt was wiped out. 

“The credibility of the witnesses and the weight accorded the evidence are matters solely 

for the fact finder who has the opportunity to see and hear that evidence as it is presented.” 

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). The trial court, 

having heard the testimony of both witnesses, believed Snell and disbelieved appellant. Credible 

evidence proved beyond a reasonable doubt that appellant made threats to try to gain a pecuniary 

benefit. Given the words used in the context of appellant’s actions, it is clear that appellant 

demanded that his $6,000 debt be forgiven before he would allow S & M access to the computer 

files on the third party server or return the other documents. 

D. APPELLANT’S INTENT 

Lastly, appellant contends that the trial court erred in convicting him of any of the 

charges because the Commonwealth failed to prove the requisite criminal intent. 
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“Intent is the purpose formed in a person’s mind which may, and often must, be inferred 

from the facts and circumstances in a particular case. The state of mind of an accused may be 

shown by his acts and conduct.” Sandoval, 20 Va. App. at 137, 455 S.E.2d at 732 (citations 

omitted); see also Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d 570, 574 (1968). 

Circumstantial evidence is as competent as direct evidence. Wright, 196 Va. at 137, 82 S.E.2d at 

606. Furthermore, the inferences to be drawn from proved facts are within the province of the 

court trying the case, so long as they are reasonable. Johnson, 209 Va. at 295, 163 S.E.2d at 574. 

In order to prove attempted extortion, the Commonwealth was required to establish that 

the defendant had the specific intent to commit extortion. Johnson, 209 Va. at 293-94, 163 

S.E.2d at 573. Embezzlement requires the intent to deprive, as is evidenced by the exercise of 

unauthorized exercise of dominion and control over another’s property. Dove v. 

Commonwealth, 41 Va. App. 571, 577, 586 S.E.2d 890, 893 (2003). Larceny also requires the 

intent to permanently deprive the owner of possession. Smith v. Commonwealth, 222 Va. 646, 

649, 283 S.E.2d 209, 210 (1981). 

The evidence proved beyond a reasonable doubt appellant’s criminal intent in each 

instance. Appellant downloaded 829 human resource documents onto a third party server on the 

day he gave notice that he was going to resign. He had no authorization to remove the files. He 

then deleted all of the files from his work computer. He alone controlled any future access to the 

files, and he denied access to the files to any S & M representative. He told the information 

technology director as well as the person assuming his position that the files were not on the 

computer. He refused to return the data unless his loan was forgiven. The files were not 

recovered until the police executed a search warrant at appellant’s house. In addition, appellant 

manually removed the non-compete agreements from each employee’s file and took them home. 

Some agreements were never recovered. 
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In reviewing the evidence, the trial court noted that appellant’s “explanation for why he 

did all of these things, when you look at it in total, simply is unbelievable.” The trial judge noted 

that “it doesn’t make any sense” to transfer the files to a third party server and completely delete 

them from a work computer if appellant had any innocent purpose. The trial judge concluded 

that “I don’t think there is any question that there was criminal intent.” We agree. 

Viewed as a whole, the evidence clearly proves that appellant’s intent was to wrongfully 

remove and retain the records and files of S & M and to use the removal as a threat to the 

company to forgive his outstanding debt. Therefore, the trial court’s finding that the element of 

intent had been satisfied with regard to all charges is supported by evidence beyond a reasonable 

doubt. 

For the foregoing reasons, we hold that the evidence was sufficient to uphold appellant’s 

convictions. Thus, we affirm the judgment of the trial court. 

 Affirmed.