                     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

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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."

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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.




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