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For Publication IN THE SUPREME COURT OF THE VIRGIN ISLANDS RIISE E. S. RICHARDS, ) S.Ct. Crim. No. 2017-0009 Appellant/Defendant, ) Re: Super. Ct. Crim. No. 344/2004 (STT) ) v. ) ) PEOPLE OF THE VIRGIN ISLANDS, ) Appellee/Plaintiff. ) na ) ) si On Appeal from the Superior Court of the Virgin Islands - Division of St. Thomas & St. John : Superior Court Judge: Hon. Denise M. Francois nd — © Considered: April 9, 2019 Filed: April 9, 2021 Cite as: 2021 VI6 BEFORE: MARIA M. CABRET, Associate Justice; HAROLD W.L. WILLOCKS, Designated Justice; and DOUGLAS A. BRADY, Designated Justice. APPEARANCES: Kelechukwu C. Onyejekwe, Esq. Appellate Public Defender St. Thomas, U.S.V.I. Attorney for Appellant, Dionne G. Sinclair, Esq. Assistant Attorney General St. Thomas, U.S.V.I. Attorney for Appellee. OPINION OF THE COURT CABRET, Associate Justice. UdAS a} + se Lund Ski Richards v. People 2021 VI 6 S. Ct. Crim. No. 2017-0009 Opinion of the Court ql Riise Richards (“Richards”) appeals a judgment of the Superior Court convicting her of embezzlement in violation of Title 14, Section 1089 of the Virgin Islands Code. In this appeal, Richards argues that the Appellate Division of the District Court of the U.S. Virgin Islands lacked jurisdiction to hear an earlier appeal of her case, and therefore this Court does not have jurisdiction to hear the present appeal. Richards also argues that her conviction should be vacated due to insufficient evidence. For the reasons explained below, we reverse the Superior Court’s order with directions to enter a judgment of acquittal. I. FACTUAL AND PROCEDURAL BACKGROUND q2 Richards was the Director of Planning and Research for the Virgin Islands Police Department (“VIPD”). In this role, Richards was responsible for collecting data, preparing department policies for her division, and other duties assigned to her by the VIPD Commissioner. As the Director of Planning and Research, she was under the supervision of VIPD Commissioner Franz Christian, Sr., and later his successor, Elton Lewis. %3 While Richards was the Director of Planning and Research for the VIPD, the VIPD funded an account with a private travel agency named “Global Tours” for the purpose of purchasing airline tickets for the work-related travel of VIPD employees. Richards had authority as the Director of Planning and Research to use the VIPD Global Tours account to purchase airline tickets for work- related travel, but the travel requests first had to be approved by the Commissioner. The Commissioner also had to approve cash advance requests for travel expenses. A travel request letter with the reason for the travel had to be submitted by the VIPD employee to the Commissioner’s office to receive a cash advance. If approved by the Commissioner, a disbursement voucher was prepared, which was necessary to generate a check from the Richards v. People 2021 VI6 S. Ct. Crim. No. 2017-0009 Opinion of the Court Department of Finance. However, Commissioner Christian never authorized the pertinent cash advances for Richards through Global Tours. 94 On February 11, 2003, Richards sent two letters to Celia Daniel (“Daniel”), the owner of Global Tours, requesting a cash advance of $2500 for hotel expenses in Washington, D.C., and an advance of $900 for travel expenses for one Claudette Rhymer to attend a conference in Washington, D.C. Richards represented to the owner of Global Tours that Rhymer was an employee of the VIPD, when in fact Rhymer was not, and had never been an employee of the VIPD. Daniel initially questioned Richards’ cash advance requests because Daniel had never issued checks directly to Richards from the VIPD’s Global Tours account. However, based on Richards’ oral and written assertions to Daniel, that as a VIPD director Richards was entitled to the funds, Daniel issued the checks for $2500 and $900 payable to “Riise Richards.” There is no evidence that Richards submitted the required travel request form to the Commissioner, and Commissioner Christian testified that he never approved the release of the funds. 45 In May of 2003, VIPD Commissioner Lewis sent a letter to the Virgin Islands Inspector General’s Office requesting an investigative audit into certain areas of the VIPD. As the investigation went on, the Attorney General’s Office received an envelope containing a letter with “Riise Richards” typed at the bottom, dated March 22, 2004, and a check for $3400, dated March 23, 2004. As a result of the investigation, the Department of Justice charged Richards with embezzlement by public and private officers in violation of 14 V.LC. § 1089, the subject of this appeal, along with seven other charges. 16 Richards pled not guilty to the charges in the information, and the Superior Court held a two-day jury trial beginning on February 9, 2006. After the trial, the jury returned a verdict finding Richards guilty of only Count Four—embezzlement in violation of 14 V.1.C. § 1089, and the lesser Richards v. People 2021 VI6 S. Ct. Crim. No. 2017-0009 Opinion of the Court included offense of Count Seven—petit larceny in violation of 14 V.I.C. § 1084. Richards then filed motions for a judgment of acquittal, for a new trial, and for arrest of judgment. The court granted Richards’ motion of acquittal as to Count Four and denied her requests for a new trial and for arrest of judgment. On July 26, 2006, the People appealed the trial court’s acquittal on Count Four to the Appellate Division of the District Court of the Virgin Islands (the “Appellate Division”), the designated appellate court for the Territory at the time of that appeal. 97 The Appellate Division reversed the judgment of acquittal by the Superior Court and remanded the case for reinstatement of Richards’ conviction. On remand, the Superior Court issued an order reinstating Richards’ conviction on Count Four, and on January 11, 2017, orally sentenced Richards to a one-year suspended sentence with credit for time served and one year of supervised probation.' 14 V.LC. § 1089; 5 V.LC. § 3711(c). The court memorialized the judgment in a writing on January 19, 2017, and on the same day Richards filed a timely notice of appeal with this court.” Il. JURISDICTION AND STANDARD OF REVIEW q8 This Court may not consider the merits of an appeal unless it first determines that it has jurisdiction over the matter. V.. Gov't Hosps. & Health Facilities Corp. v. Gov't of the V.I., 50 V.I. 276, 279 (V.1. 2008). “The Supreme Court [has] jurisdiction over all appeals arising from final judgments, final decrees or final orders of the Superior Court.” V.I. CODE ANN. tit. 4, § 32(a). “It is well established that in a criminal case, the written judgment embodying the adjudication of ' For reasons not apparent in the record, the matter languished for a decade in the Appellate Division before the Superior Court could enter the judgment directed by the Appellate Division. 2? “Because (Richards) filed (her) notice of appeat before the Judgment... issued, this Court treats the notice as having been filed on the date the Superior Court entered the final order...,” January 19, 2017. Potter v. People, 56 V.L. 779, 787 n.10 (V.1. 2012). See also Fontaine v, People, 56 V.1. $71, 576 n.3 (V.1. 2012) (“A notice of appeal filed after the announcement of an order or judgment, but before the entry of a writing memorializing same, is ‘treated as if filed on the date of and after entry ... and is considered timely filed’ even though it is premature.”). Richards v. People 2021 VI6 S. Ct. Crim. No. 2017-0009 Opinion of the Court guilt and the sentence imposed based on that adjudication constitutes a final judgment for purposes of appeal.” Davis v. People, 69 V.I. 619, 626 (V.I. 2018) (citations omitted). Accordingly, the Superior Court's January 19, 2017, judgment constitutes a final judgment, and we have jurisdiction over this appeal. {<9 “When we consider challenges to the sufficiency of the evidence, we apply a particularly deferential standard of review.” Duggins v. People, 56 V.1. 295, 300 (V.1. 2012) (internal quotation marks omitted). After a criminal conviction, an appellant who challenges the sufficiency of the evidence bears a very heavy burden. Charles v. People, 60 V.1. 823, 831 (V.L. 2014). “[W]e view the evidence presented at trial in a light most favorable to the People.” Stevens v. People, 52 V.I. 294, 304 (V.I. 2009). A conviction should be affirmed if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Smith v. People, 51 V.1. 396, 398 (V.1. 2009). II. DISCUSSION q10 Richards alleges that her conviction for embezzlement under 14 V.1.C. § 1089 must be vacated because the last court to possess jurisdiction over this matter was the Superior Court when it entered a judgment of acquittal in 2006. She contends that when the People appealed the court’s judgment of acquittal, the Appellate Division lacked jurisdiction to hear the appeal when it reversed the Superior Court with directions to reinstate her conviction. Therefore, Richards argues, the Superior Court did not have the jurisdiction on remand to reinstate her conviction and sentence her in 2017, and on that theory this Court does not have jurisdiction over the allegedly null and void January 19, 2017, order of the Superior Court. Richards vy. People 2021 VI6 S. Ct. Crim. No. 2017-0009 Opinion of the Court 11 Richards maintains that the Appellate Division did not have the jurisdiction to hear the People’s appeal because the government filed the appeal after the Legislature created the Supreme Court of the Virgin Islands on October 29, 2004. Therefore, she contends that all appeals from courts of the Virgin Islands taken on and after that date must be filed in this Court, because the creation of the Supreme Court immediately divested jurisdiction over new appeals from the Appellate Division and vested the power of review in this Court. 912 But if this Court were to determine it has jurisdiction and reaches the merits, Richards argues that her conviction must nevertheless be reversed, as the evidence was legally insufficient for ajury to convict under 14 V.I.C. § 1089, styled “Embezzlement by public and private officers.” We consider each of Appellant’s arguments in turn. A. Jurisdiction 413 The Revised Organic Act (“ROA”) states that upon the establishment of the Supreme Court all appeals from decisions of the Superior Court not previously taken must be taken to the Supreme Court. See Revised Organic Act of 1954 § 23A(d) (emphasis added). Richards asserts that this Court was “established” within the meaning of the ROA on October 29, 2004, the date Act 6687 passed creating the Supreme Court of the Virgin Islands. Therefore, she alleges that the ROA mandates that all appeals of Superior Court decisions on and after October 29, 2004, must be taken to this Court, that appeals taken to the Appellate Division on or after October 29, 2004, were heard without jurisdiction, and that opinions and orders in those appeals are void (including the People’s 2006 appeal of this case). However, this argument fully ignores our holdings in V.. Gov't Hosps. and Hypolite v. People, 51 V.1. 97 (V.1. 2009), and would also produce absurd results for the administration of justice in the territory. For those reasons, we reject her argument. Richards v. People 2021 VI 6 S. Ct. Crim. No. 2017-0009 Opinion of the Court "27 Carmichael echoes the persuasive holding of Gov't of the V.I. v. Leonard, 548 F.2d 478 (3d Cir. 1977), a case also interpreting 14 V.I.C. § 1089. Both cases “reject() the notion that ‘mere access’ to an employer's property, without a showing of specific authority or control over that property, is sufficient to establish lawful possession for the purpose of an embezzlement conviction.” Carmichael, 46 V.1. at 399 (citing Leonard, 548 F.2d at 478). We agree with this holding. §28 In Leonard, the Third Circuit Court of Appeals reversed a conviction of aiding and abetting embezzlement because the prosecution failed to prove that the principal offender, a communications technician serving in a Civil Defense Office, committed embezzlement. 548 F.2d at 479. The technician had access to an office storeroom containing rolls of chicken wire. Id. Everyone in the office knew where the keys to the storeroom were kept, and the technician would enter the office several times at night and use the keys to pilfer rolls of the chicken wire to sell. Jd. The court posited that “the critical question is whether [the chicken wire] was under his ‘control’ by virtue of his trust.” /d. at 480. The communications technician was “not authorized to... remove [items] from the storeroom, or to exercise dominion over the contents of the storeroom in any way,” although he was authorized on at least one occasion to enter the storeroom to note its contents. /d. Williams “knew where the storeroom keys were located, but so did the secretaries and part-time volunteers, who also were not authorized to use the keys without permission.” /d. The court found that “mere access to the storeroom was not sufficient to invest ‘control’ in [the technician]” Jd. 929 Weare also guided by the Supreme Court of California’s decision in People v. Knott, 104 P.2d 33 (Cal. 1940), which interpreted that State’s officer embezzlement statute, CAL. PENAL CODE Richards v. People 2021 VI 6 S. Ct. Crim. No. 2017-0009 Opinion of the Court § 504,* which is substantially similar to our own, 14 V.1.C. § 1089.° Knott is nearly identical to the instant case, with one key difference: the defendant (a county auditor) had both access and authority over the funds at issue, resulting in her embezzlement conviction being affirmed. The accused’s argument on appeal was that she did not have the funds at issue in her possession or under her control by virtue of her trust. /d. at 35. One of her duties as the county auditor was to draw warrants on the county treasury, authorizing payments the county owed. /d. at 34. She “required no approval by any other public officer” to obtain payment on warrants she submitted to the county treasurer, including a $625 warrant she submitted to the county treasurer in the case. Id. “It was the duty of the county treasurer to pay such a warrant, regular on its face, upon presentation, provided there were funds available therefor.” Jd. The treasurer paid out on the $625 warrant “upon the pretext that it was due for (a certain payment obligation), although (it was actually already) paid under another warrant.” /d. Under these circumstances, the court found that the defendant auditor had control over the money of the county by virtue of her trust, and her embezzlement conviction was affirmed. /d. at 35-36. 430 Inthe present case, Richards’ taking was unlawful, as she did not have permission to obtain the cash advance funds and she instead procured them by subterfuge. The VIPD did not entrust Richards with custody or control of the funds. Richards had access to funds in the Global Tours 8 “Every officer of this state, or of any county, city, city and county, or other municipal corporation or subdivision thereof, and every deputy, clerk, or servant of that officer, and every officer, director, trustee, clerk, servant, or agent of any association, society, or corporation (public or private), who fraudulently appropriates to any use or purpose not in the due and lawful execution of that person’s trust, any property in his or her possession or under his or her control by virtue of that trust, or secretes it with a fraudulent intent to appropriate it to that use or purpose, is guilty of embezziement.” CAL. PENAL CODE § 504. 9 “When statutes from other jurisdictions are substantially similar to a Virgin Istands statute, this Court may look for guidance at how that jurisdiction's courts have interpreted the similar statute.” Oxtley v. Estate of Bell, 61 V.1. 480, 494 n.10 (V.I. 2014). Richards v. People 2021 V1 6 S. Ct. Crim. No. 2017-0009 Opinion of the Court account, but only to purchase airline tickets for travel, and that access was subject to approval of the Commissioner. Her access to the funds was limited and conditional. Cf State v. Weaver, 586 S.E.2d 841, 846 (N.C. Ct. App. 2003) (a conviction of aiding and abetting embezzlement was reversed where the principal’s conviction of embezzlement for forging $498,000 worth of checks required reversal; the principal had no general check-writing authority and needed express authorization and permission to fill out each individual check. The court held that “the law is clear that mere access to personal property will not satisfy the requirement that, to be properly convicted of embezzlement, the defendant must have received the property lawfully, in the course of and under the terms of her employment.”). Additionally, only VIPD employees could receive travel accommodations through Global Tours due to the Commissioner’s policy forbidding family and friends traveling on department billing, and Ms. Rhymer was not a VIPD employee. However, Richards told Daniel that Rhymer was a VIPD employee. This subterfuge, according to Ms. Daniel, was “the only reason (she) would have issued the ticket.” In addition, Commissioner Christian testified that cash advances were never authorized at all through Global Tours during his tenure, and that he never approved the ‘authorization’ letters Richards wrote to Daniel, nor the cash advances for the $2500 in hotel expenses or $900 in travel expenses for Rhymer. Just as the accuseds in Carmichael and Leonard, Richards had no specific authority over the owner’s property that could make her initial possession lawful. Therefore, Richards’ unlawful possession cannot “establish the offense of embezzlement.” Carmichael, 46 V.1. at 398. 431 Lastly, Daniel did not willingly disburse the funds Richards requested, because Richards’ request was not something Daniel had “done ... before.” Daniel questioned Richards’ authority and whether Richards had the permission to obtain the cash advances. Daniel denied Richards’ request until] Richards misrepresented that she had the authority to gain possession of the funds. Richards v. People 2021 V1 6 S. Ct. Crim. No. 2017-0009 Opinion of the Court Conversely, in Knott, the county auditor’s conviction for embezzlement was upheld because the county treasurer had a duty to release the treasury’s funds upon the auditor’s request, the auditor never required any further approval and did not have to misrepresent her authority to turn her access into lawful possession. She had specific authority over the county treasury’s funds. In this case, Daniel had no such authority. 932 We find that no reasonable juror could conclude that Richards had lawful custody or control of these funds by virtue of her trust within the meaning of the statute. Cf 14 V.I.C. § 834(b) (Obtaining money by false pretenses). The People failed to demonstrate that Richards had specific authority or control over the cash advance funds sufficient to establish control by virtue of her trust. Carmichael, 46 V.I. at 399. Her conviction for embezzlement under 14 V.I.C. § 1089 must therefore be reversed. IV. CONCLUSION "33 The Appellate Division properly exercised jurisdiction over the original appeal of the 2006 Superior Court judgment acquitting Richards, and we have jurisdiction over the present appeal. While the evidence introduced at trial was sufficient for a rational trier of fact to establish that Richards was a public officer under 14 V.I.C. § 1089, the prosecution failed to introduce sufficient evidence to establish that Richards had possession or control over the funds she was convicted of embezzling by virtue of her trust. Therefore, we reverse the Superior Court’s order reinstating Richards’ conviction, and remand to the Superior Court with instructions to enter a judgment of acquittal on Count Four, embezzlement under 14 V.I.C. § 1089.'° 10 “(1)t may appear unfortunate that the result we reach in this case serves to free a defendant who may well be guilty of some sort of wrongful conversion. But the fact is that the Virgin Islands have not consolidated their statutes governing larceny and embezzlement, and we are constrained to observe the traditional procedural strictures with respect to conviction of one crime when the proof shows another.” Leonard, 548 F.2d at 481. Richards v. People 2021 VE 6 S. Ct. Crim. No. 2017-0009 Opinion of the Court Dated this G day of April, 2021 BY THE COURT it aa pe (td (hf Ze) ATTEST VERONICA J. HANDY, ESQ Clerk of the Court m SPD