COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia
BECKY BISHOP CONLEY,
A/K/A BECKY IRENE BISHOP
MEMORANDUM OPINION * BY
v. Record No. 0488-96-2 JUDGE LARRY G. ELDER
FEBRUARY 18, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Llezelle Agustin Dugger (David L. Heilberg,
on briefs), for appellant.
Kimberley A. Whittle, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Becky Bishop Conley (appellant) appeals her conviction of
petit larceny. Appellant contends that the evidence was
insufficient to support her conviction. For the reasons that
follow, we reverse.
I.
FACTS
On March 2, 1995, the victim entered a fast-food restaurant
carrying a pocketbook that contained $150 in cash. The victim
hung her pocketbook on the back of a highchair for thirty minutes
while she ate lunch with her two young children. After finishing
their lunch, the victim and her children departed the restaurant
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to shop at a nearby grocery store. The victim left the
restaurant without her pocketbook, soon realized that it was
missing, and returned "approximately five minutes" later to
retrieve it.
Appellant was a shift manager at the restaurant. As the
lunch rush waned on March 2, 1995, appellant entered the lobby
area of the restaurant and began cleaning tables and collecting
abandoned newspapers. Another employee had previously been sent
to clean the lobby area. Between seven and ten customers were in
the lobby area while appellant cleaned. At some point prior to
the victim's return, appellant became aware of and picked up the
victim's pocketbook. Appellant asserts that her attention was
called to the pocketbook by an unidentified patron. When the
victim returned to the restaurant, she found appellant and a
co-worker together in the rest room. Appellant was holding the
pocketbook and some newspapers "close up to her chest," and both
appellant and the co-worker opened their mouths when they saw the
victim. The record did not establish that the pocketbook was
either open or had been opened. The victim asked appellant for
her pocketbook, and appellant returned it to her.
Shortly thereafter, the victim discovered that the $150 in
cash was missing from her pocketbook and accused appellant of
stealing it. The police were called to investigate. At some
point before the arrival of the police, appellant left the
building to take trash to the outside trash bins. After an
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officer arrived, appellant offered to be searched, but no search
was conducted. The missing money was never recovered. At trial,
appellant testified that she was not in the rest room when the
victim confronted her, but near the "play area."
II.
SUFFICIENCY OF THE EVIDENCE
Appellant argues that the evidence fails to prove that
appellant was the thief who stole the money from the victim's
pocketbook. We agree.
In every criminal prosecution, the Commonwealth has the
burden of proving "that the crime charged has actually been
perpetrated; and . . . that it was committed by the accused."
Goldman v. Commonwealth, 100 Va. 865, 878, 42 S.E. 923, 924
(1902). Larceny is defined as the "wrongful taking of the goods
of another without the owner's consent and with the intention to
permanently deprive the owner of possession of the goods."
Bright v. Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444
(1987). When considering the sufficiency of the evidence on
appeal, "we view the evidence in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). The judgment of a trial court
sitting without a jury will not be set aside unless plainly wrong
or without evidence to support it. Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987).
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Although the evidence proved that a larceny occurred, we
hold that the evidence was not sufficient to prove that appellant
was the thief who stole the victim's money. The Commonwealth
relied upon circumstantial evidence to prove that appellant took
the money from the victim's pocketbook. In a case based upon
circumstantial evidence, "the Commonwealth must exclude every
reasonable hypothesis of innocence. However, [the Commonwealth]
is not required to disprove every conceivable possibility of
innocence, but is, instead, required only to establish guilt of
the accused to the exclusion of a reasonable doubt." Saunders v.
Commonwealth, 18 Va. App. 825, 829, 447 S.E.2d 526, 529 (1994)
(citations omitted). "[T]he Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence."
Id. at 829-30, 447 S.E.2d at 529.
While the circumstantial evidence in this case raises the
suspicion that appellant was the thief, it does not exclude the
possibility that some other employee or customer of the fast-food
restaurant took the money from the victim's pocketbook. The
evidence proved that appellant possessed the pocketbook for about
five minutes, but no evidence established that appellant actually
stole the victim's money. Nothing in the record indicates that
the victim's $150 was in the pocketbook when appellant found it
in the dining room. Although the victim testified that appellant
was holding the pocketbook with a bundle of newspapers "close up
to her chest" and "opened" her mouth when the victim confronted
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her, the record does not establish that appellant ever opened the
pocketbook or that appellant's expression at the sight of the
victim was one of surprise. Moreover, the record indicates that
numerous other persons in the restaurant besides appellant had an
opportunity to steal the money. The evidence proved that the
pocketbook hung from a highchair in the restaurant for at least
thirty-five minutes. The restaurant was busy during the entirety
of the victim's thirty-minute lunch, and seven to ten customers
had access to the pocketbook during the time in between the
victim's departure from the restaurant and appellant's retrieval
of the pocketbook. Although it is possible to suspect that
appellant was the thief, the circumstantial evidence in this case
does not exclude the possibility that some other employee or
customer at this busy restaurant stole the money from the
victim's pocketbook either while the victim lunched with her
children or during the time that the pocketbook was unattended.
For the foregoing reasons, we reverse the conviction of
petit larceny.
Reversed.
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