## Facts

- Jeremy Dion DiMaio worked as director of human resources for S & M Brands, Inc.
- The company made DiMaio a $6,500 loan under a written agreement signed by DiMaio and the company’s president.
- After DiMaio’s employment ended and the company sought repayment, DiMaio removed from the company’s premises computer software, forms, and files he created or used in his employment and copied them onto his own equipment.
- The materials included human-resources forms and templates, company-specific documents and computer files, and licensed software used in the HR function.
- Evidence showed DiMaio threatened to continue using the company’s property unless his demands related to disputes with the company were met.
- At a bench trial, the Commonwealth offered valuation testimony from the company’s CFO (value over $10,000) and in-house counsel (about $3,790 to replace software and $5,000–$7,000 to recreate forms/materials).
- DiMaio did not object to either witness’s competency or the admissibility/basis of their value opinions and presented no contrary valuation evidence.

## Issues

1. Whether the evidence was sufficient to prove the value element needed to sustain felony convictions for computer fraud and larceny (via embezzlement) based on DiMaio’s taking of company computer files, forms, and software.

## Decision

- The Supreme Court of Virginia reviewed only the value-sufficiency question for the computer-fraud and larceny convictions.
- Applying the deferential sufficiency standard and viewing the evidence in the light most favorable to the Commonwealth, the Court held the valuation evidence was sufficient.
- The Court treated the CFO’s and in-house counsel’s testimony as properly admitted because DiMaio made no trial objection.
- The Court affirmed the judgment upholding the felony convictions for computer fraud and larceny (embezzlement).

## Legal Principles

- On appellate review of evidentiary sufficiency, the evidence and reasonable inferences are viewed in the light most favorable to the prevailing party, and a bench-trial judgment will be upheld unless plainly wrong or without evidentiary support.
- The value element for property-based felony offenses may be proved by competent evidence of replacement cost and the cost to recreate or restore the property taken, including for computer-related files, forms, and software.
- Evidence admitted without objection may be considered for its full probative value on appeal; a defendant generally cannot first challenge a witness’s competency or the basis of valuation testimony on appeal after failing to object at trial.
- Uncontradicted valuation testimony from knowledgeable corporate officers or employees can support a factfinder’s determination that statutory value thresholds are met.

## Conclusion

The court affirmed DiMaio’s felony computer-fraud and larceny convictions, holding that unobjected-to testimony estimating replacement and recreation costs provided sufficient proof of value for the computer software, forms, and files he took from his former employer.


DiMaio v. Commonwealth, 272 Va. 504, 636 S.E.2d 456 (Va. 2006)