COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Hodges
Argued at Chesapeake, Virginia
JAMES S. SHAW
MEMORANDUM OPINION * BY
v. Record No. 2876-98-1 JUDGE WILLIAM H. HODGES
MAY 16, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Charles E. Haden for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
James S. Shaw, appellant, appeals his conviction for
embezzlement. Appellant argues that the evidence was insufficient
to support the conviction, and, therefore, the trial court erred
in denying his motion to strike the evidence. Finding no error,
we affirm.
"On appeal, 'we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom.'" Archer v.
Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)
(citation omitted).
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
In this light, the evidence proved that appellant worked at
a bagel bakery as a night shift and opening manager from August
1997 through March 1998. In March 1998, the store's general
managers discovered that large false over-rings were being
performed on the cash register during the period of appellant's
employment. The over-rings were being performed with the use of
appellant's magnetic swipe card or use of an access code
assigned to him. The over-rings occurred only during
appellant's shifts and ceased upon his separation from
employment with the store. No other employee consistently
shared the same schedule with appellant.
The general managers discovered the false entries by
examining daily end-of-day reports. It was the closing
manager's responsibility to program the store's computer to
generate these reports at closing so that the report would be
ready for the opening manager to review the next morning. The
opening manager counted the money in the drawer at shift
changes, and mid-day, and initialed the end-of-day reports. The
over-rings would subtract the over-ring amount from the balance
of total sales for the day. If the over-ring amount was not
taken from the cash in the drawer, the total cash would have
been greater than the reported total sales by the amount of the
over-ring. No deposits were greater than the reported balance
totals.
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Appellant testified that he would often enter an over-ring
to obtain price quotes for phone inquiries, but denied taking
any money. Amy Damron, a defense witness, also testified that
she and others would use appellant's card for these phone
inquiries, as well as other transactions, though she stated this
occurred only in appellant's presence. The general manager,
however, testified that this information could be obtained by a
much simpler process of merely entering the order and voiding it
on the screen before the transaction was completed. This
process would not require a magnetic swipe card or access code,
nor would it affect the day's accounting of total sales.
"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). "In its role of judging witness credibility, the
fact finder is entitled to disbelieve the self-serving testimony
of the accused and to conclude that the accused is lying to
conceal his guilt." Marable v. Commonwealth, 27 Va. App. 505,
509-10, 500 S.E.2d 233, 235 (1998). The trier of fact is not
required to accept a party's evidence in its entirety, see
Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193
(1986), but is free to believe and disbelieve in part or in
whole the testimony of any witness. See Rollston v.
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Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).
Therefore, the trial court was not required to accept
appellant's testimony denying he committed the embezzlement.
Nor was the trial court required to be persuaded by the
testimony of Damron.
"Opportunity is always a relevant circumstance . . . and,
when reinforced by other incriminating circumstances, may be
sufficient to establish criminal agency beyond a reasonable
doubt." Christian v. Commonwealth, 221 Va. 1078, 1082, 277
S.E.2d 205, 208 (1981). "Whether the Commonwealth relies upon
either direct or circumstantial evidence, it is not required to
disprove every remote possibility of innocence, but is, instead,
required only to establish guilt of the accused to the exclusion
of a reasonable doubt." Bridgeman v. Commonwealth, 3 Va. App.
523, 526-27, 351 S.E.2d 598, 600 (1986).
Here, the evidence proved that the embezzlement occurred
only when appellant was working and that it was concealed by use
of the over-ring method performed by the use of appellant's
magnetic swipe card or access code. Although evidence existed
that others used his card or access code, no other employee
consistently worked the same days of the week or shared the same
shift changes. Appellant had access to the money because, as
shift manager, he reviewed the balance reports and counted the
money. Further, the embezzlement ceased when appellant's
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employment ceased. From this evidence, the trial court was
entitled to conclude that appellant was the criminal agent.
The Commonwealth presented sufficient evidence to prove,
beyond a reasonable doubt, that appellant was guilty of
embezzlement. Accordingly, we affirm appellant's conviction for
embezzlement.
Affirmed.
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