COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and Elder
Argued at Richmond, Virginia
ANGELA MARIE PETTWAY
MEMORANDUM OPINION * BY
v. Record No. 0599-97-2 JUDGE JAMES W. BENTON, JR.
JUNE 16, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Herbert C. Gill, Jr., Judge
John E. Dodson (Gordon, Dodson & Gordon, on
briefs), for appellant.
Ruth Ann Morken, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Angela Marie Pettway was convicted of embezzling funds in
excess of two hundred dollars from her employer. See Code
§§ 18.2-95 and 18.2-111. She contends that the evidence was
insufficient to prove the elements of the offense beyond a
reasonable doubt. For the reasons that follow, we reverse the
conviction.
I.
The evidence proved that Angela Marie Pettway was employed
as an assistant manager at a McDonald's restaurant. One of
Pettway's duties was to periodically deposit the restaurant's
money at the bank. The restaurant's owner required all monies
which were to be deposited in the bank to be placed in a clear
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
plastic bag and assigned a specific number. Prior to making a
deposit, the assistant manager was required to record on a ledger
the bag number, deposit amount, and deposit date and to initial
the entry. The deposit was then to be placed in the outside
deposit box at the People's Bank of Virginia. Approximately two
days after each deposit, the bank routinely sent to the
restaurant's office manager a deposit slip for any money
deposited.
On August 5, 1996, Pettway entered on the ledger a deposit
pursuant to the restaurant's policy. On August 9, the
restaurant's office manager was reviewing deposit slips from the
bank when she discovered that a deposit slip for $2,947 was
missing. The ledger indicated that $2,947 was to have been
deposited on August 5, by Pettway. During her search for the
deposit, the office manager spoke with the bank manager, who said
the bank never received the deposit.
The same day, the office manager called Pettway at home to
make inquiry. Pettway said that she had been responsible for
several deposits during the week and that she had not made one of
these deposits, which could have been the August 5 deposit. The
office manager testified that she later learned that the deposit
on August 6 had been made by another person.
The bank manager testified and described the bank's general
procedure for handling deposits received from the deposit box.
She explained that the customer has a key that opens the box.
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When the deposit is placed in the deposit box, it drops through a
chute into a large bin. The door to the deposit box
automatically locks when closed. When the bank's employees
collect the deposits from the box inside the bank, two bank
employees remove the contents, count the deposits, and record the
amount. Each deposit is then processed by a teller. The bank
manager also testified that the deposit box undergoes regular
maintenance inspections and that she was not aware of any
malfunctions on August 5.
Pettway testified she entered the deposit on the ledger,
went to the bank on August 5, and put the money into the deposit
box. She also testified that as she was driving on the bank's
premises to make the deposit, she saw Robert Davis, an insurance
broker, standing outside and waved to him. Pettway explained her
response to the office manager's inquiry by testifying that she
had arranged with the restaurant's manager to leave a deposit in
the safe that same week because she had to leave work early for a
dental appointment. She testified that another employee made
that deposit on August 6 in her stead.
Davis, the insurance broker, testified that he saw Pettway
at the bank on August 5. He testified that he was talking to a
customer when he saw Pettway in the lane leading to the deposit
box. However, he did not see whether she made a deposit.
Troy Ross, another restaurant employee, testified he also
makes deposits at the bank for the restaurant. He testified that
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in early 1996 when he was making a deposit, the bank's deposit
box was malfunctioning. When he approached the box, he noticed
that it was ajar. Two deposit bags had become lodged in the
chute so as to keep the door open. He opened the door and
slammed it closed to cause the bags to drop.
At the conclusion of the evidence, the trial judge convicted
Pettway of embezzlement.
II.
To sustain a conviction for embezzlement under Code
§ 18.2-111, the Commonwealth must prove three elements: (1) the
accused received property by virtue of her employment for her
employer; (2) the accused wrongfully and fraudulently converted
the property to her own use; and (3) the value of the property
exceeds $200. See Code § 18.2-95. The Commonwealth must prove
beyond a reasonable doubt that the accused wrongfully and
fraudulently converted the missing money. See Waymack v.
Commonwealth, 4 Va. App. 547, 549, 358 S.E.2d 765, 766 (1987).
Where the Commonwealth relies on circumstantial evidence to
meet its burden of proof, the following standard applies:
All necessary circumstances proved must be
consistent with guilt and inconsistent with
innocence. It is not sufficient that the
evidence create a suspicion of guilt, however
strong, or even a probability of guilt, but
must exclude every reasonable hypothesis save
that of guilt. To accomplish [this] the
chain of circumstances must be unbroken and
the evidence as a whole must be sufficient to
satisfy the guarded judgment that both the
corpus delicti and the criminal agency of the
accused have been proved to the exclusion of
any other reasonable hypothesis and to a
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moral certainty.
Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).
The evidence regarding the bank procedures for handling
deposits that were put in the box established only the usual
procedures. The bank manager testified that she had no knowledge
of what occurred on August 5. The Commonwealth failed to offer
testimony from bank employees charged with accepting and
accounting for deposits made on August 5, 1996. Because those
persons had access to any money that was deposited, the proof
failed to establish a vital link in the handling of the funds.
The bank manager's testimony of the usual procedure was not
sufficient to prove beyond a reasonable doubt that Pettway did
not deposit the funds in the deposit box on August 5. The bank
manager's testimony leaves to speculation whether the funds in
the clear plastic bag were removed by the bank employees.
Furthermore, Troy Ross, another restaurant employee,
testified that on an occasion when he made a deposit at the bank,
he had found the deposit box jammed and ajar. Ross testified
that he opened the box with his fingers and could have removed
the deposit bags. His testimony proved that the box could have
malfunctioned on August 5 and been the cause of the lost deposit.
When evidence is equally susceptible of two interpretations,
one of which is consistent with the innocence of the accused, the
trier of fact cannot arbitrarily adopt that interpretation which
incriminates the accused. See Littlejohn v. Commonwealth, 24 Va.
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App. 401, 411, 482 S.E.2d 853, 858 (1997). No evidence tended to
prove that Pettway "attempted to conceal her alleged criminal
activity or that she possessed the criminal intent necessary to
sustain her conviction." Waymack, 4 Va. App. at 550, 358 S.E.2d
at 766. In six years of her employment at the restaurant,
Pettway had been promoted from counter personnel to assistant
manager. When the chain of circumstances was not proved to be
unbroken, the absence of proof that Pettway embezzled the funds
leaves only suspicion.
Accordingly, we reverse the conviction and dismiss the
indictment.
Reversed and dismissed.
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