COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Richmond, Virginia
JAMES NAPOLEON CASSELL
MEMORANDUM OPINION * BY
v. Record No. 1595-98-2 JUDGE LARRY G. ELDER
SEPTEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
John H. Goots (Chalkley & Witmeyer, LLP, on
brief), for appellant.
Kathleen B. Martin, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
James Napoleon Cassell (appellant) appeals from his bench
trial conviction for grand larceny of $4,769.96 pursuant to Code
§ 18.2-95. On appeal, appellant contends the circumstantial
evidence was insufficient to support his conviction because it
proved, at most, that he was reckless in handling the money
rather than that he intentionally took it. For the reasons that
follow, we disagree and affirm the conviction.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I.
FACTS
At the time of the instant offense, appellant managed a
7-Eleven convenience store. His duties included making bank
deposits. On July 24, 1997, appellant notified his supervisor,
Dean Turner, that he had lost the store’s bank deposit of
$4,769.96, most of which was in cash.
A review of the store's surveillance videotape, which
records "everything that goes on . . . 24 hours a day" at the
store's register, safe and front door areas, established that
appellant removed money from the store safe at 7:14 a.m. and
carried it back to the office in order to prepare his deposit.
The videotape then showed appellant putting something back into
the safe, which appellant told Turner was his "dropping the
deposit back into the safe," as required by store policy. The
videotape showed appellant dropped only "one small bundle of
money" into the safe's "sleeve," and Turner testified it would
have been impossible for appellant to drop a deposit of over
$4,000 into the sleeve in one drop; it would have required
separate drops of "four or five bundles." The videotape also
showed that at 7:18 a.m., appellant left the store, ostensibly
to take his wife to work, and returned at about 9:15 a.m.
The segment of tape from 10:40 to 11:03 a.m. was erased,
and other segments were out of sequence. When the tape resumed
at 11:04 a.m., it showed appellant leaving the office, going to
- 2 -
the register area and leaving the store with the bank bag in his
hand at 11:13 a.m.
Appellant said he retrieved the money from the safe between
10:40 and 11:00 a.m. When appellant and Turner viewed the tape
together, appellant said that "the only thing he could think of
was that" he accidentally erased the portion of tape from 10:40
to 11:00 a.m. when he had reviewed it earlier to try to
determine what had happened to the bank bag. Turner testified
that the videotape machinery was manufactured with the record
button and the play button on opposite sides of the machine "so
a mistake cannot happen." Turner was certain he had not erased
or taped over any portion of the tape himself. Two other
7-Eleven employees had viewed brief portions of the tape with
appellant before Turner arrived, and neither remembered any
gaps.
Appellant told Turner that when he left the store with the
bank bag, he put it under the seat of his car and drove to the
bank without making any stops but that when he arrived at the
bank, the bag was not there. Appellant then cashed his own
paycheck and paid an overdue insurance bill before returning to
the store. Appellant said he was not overly concerned about the
missing money bag because he believed he must have left it at
the store, which he had done on previous occasions. When he
could not find it at the store, he assumed "he must have put it
on the hood of his car or lost it in some other fashion."
- 3 -
Appellant and Turner searched beneath the seat of appellant's
car but found neither the bank bag nor any holes in the floor of
the car. Appellant reported he had been out until 4:30 a.m. on
July 24, 1997, due to "a problem with his son," and had reported
for work only a few hours later.
Appellant testified in keeping with his statements to
Turner. However, regarding his preparation of the deposit
around 7:00 a.m., he testified that he put the money in the
"back part" of the office with the lottery tickets or in the
office drawer rather than back in the safe. Other evidence
established that this was in violation of store policy.
Appellant said that what he put in the safe was his "final
drop," which comprised the store's receipts for the morning,
which were to be tracked separately from the previous day's
receipts. He later testified that he retrieved the money,
placed it in the deposit bag and "made the final drop" at around
11:00 a.m. Appellant also said he was not worried when he could
not find the bag because he had forgotten it on two or three
prior occasions but had found it safe at the store, which was
only minutes from the bank, and he offered the corroborating
testimony of another employee that he previously had forgotten
the bank bag. He claimed he did not call the store because he
thought the deposit was still safe back at the store and
because, if he had called, he likely would have had to wait
while his co-worker served customers before she could look for
- 4 -
the bag. He contended that he told Turner the bag may have been
on the roof of his car when he drove off and that appellant and
Turner looked for but did not find it in the parking lot and
driveway of the store.
II.
ANALYSIS
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The judgment of a trial court, sitting
without a jury, is entitled to the same weight as a jury verdict
and will be disturbed only if plainly wrong or without evidence
to support it. See id. The credibility of a witness, the
weight accorded the testimony, and the inferences to be drawn
from proven facts are matters solely for the fact finder's
determination. See Long v. Commonwealth, 8 Va. App. 194, 199,
379 S.E.2d 473, 476 (1989). In its role of judging credibility,
the fact finder may "disbelieve the self-serving testimony of
the accused [in its entirety] and . . . 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). It also may accept certain portions of a defendant's
testimony as true and reject other portions as false. See
- 5 -
Pugliese v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24
(1993).
Under Code § 18.2-111, one is guilty of larceny if he
"wrongfully and fraudulently use[s], dispose[s] of, conceal[s]
or embezzle[s] any money . . . which he shall have received
. . . by virtue of his . . . employment." Id. (proscribing
embezzlement and making it punishable as grand or petit
larceny). Such an offense requires proof of intent to deprive
the owner of the property entrusted. See Zoretic v.
Commonwealth, 13 Va. App. 241, 243, 409 S.E.2d 832, 833-34
(1991). Proof merely that property entrusted to the accused was
misappropriated is insufficient, standing alone, to prove that
the accused was the embezzler. See id. at 243, 409 S.E.2d at
834.
Intent, like any element of a crime, may be proved by
circumstantial evidence, see Servis v. Commonwealth, 6 Va. App.
507, 524, 371 S.E.2d 156, 165 (1988), such as a person’s conduct
and statements, see Long, 8 Va. App. at 198, 379 S.E.2d at 476.
"Circumstantial evidence is as competent and is entitled to as
much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983). "[T]he Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
not those that spring from the imagination of the defendant."
- 6 -
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,
29 (1993).
Here, the only hypothesis flowing from the evidence, when
viewed in the light most favorable to the Commonwealth, is that
appellant embezzled his employer's money, which had been
entrusted to him to deposit at the bank. Appellant admitted and
the surveillance videotape confirmed that he removed the money
from the safe at 7:14 a.m. and carried it back to the office.
Within a few minutes, appellant dropped one small bundle of
money back into the safe. Appellant contended in his statement
to Turner, contrary to his testimony at trial, that he returned
the entire deposit to the safe at that time, as required by
store policy. However, Turner testified that appellant could
not have dropped a deposit of over $4,000 into the safe in one
small bundle. Rather, such a drop would have required four or
five separate bundles. Then, at 7:18 a.m., immediately after
making the deficient drop, appellant left the store and did not
return until 9:15 a.m.
Appellant contended in his statement to Turner, contrary to
his trial testimony, that he removed the deposit from the safe
between 10:40 and 11:00 a.m., but that portion of the videotape
had been erased. The videotape showed appellant leaving the
store at 11:13 a.m. with the bank bag, but no evidence
established whether the deposit money was in the bag at that
time. Appellant reported placing the bag under the seat of his
- 7 -
car, but he contended that he made no stops along the way and
that the bag was not there when he arrived at the bank. The
evidence established that there were no holes in the floorboard
of appellant's car. Despite the fact that the bag was missing,
appellant did not call the store to be sure it was safe, and he
completed some personal errands before returning to the store to
check on the money. Although appellant contended at trial that
he must have placed the bag on the hood of his car rather than
under the seat and lost it when he drove to the bank, the trial
court as the finder of fact was entitled to reject this portion
of appellant’s testimony and to conclude that he was lying to
conceal his guilt.
The only hypothesis flowing from the remaining evidence,
viewed in the light most favorable to the Commonwealth, is that
appellant embezzled the deposit money from his employer, taking
it either when he left the store at 7:18 a.m. after removing the
deposit from the safe or when he left the store with the deposit
bag at 11:13 a.m., ostensibly to take the deposit to the bank.
For these reasons, we affirm appellant’s conviction.
Affirmed.
- 8 -