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Full Opinion
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