                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Fitzpatrick and Senior Judge Hodges
Argued at Alexandria, Virginia

DENISE KELLY OBRIEN, SOMETIMES KNOWN AS
 DENISE KELLY O'BRIEN

v.       Record No. 1451-94-4              MEMORANDUM OPINION *
                                       BY JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA                    FEBRUARY 20, 1996


          FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                      Donald M. Haddock, Judge
          J. Amy Dillard, Assistant Public Defender, for
     appellant.

            H. Elizabeth Shaffer, Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellee.



     Denise Kelly OBrien (appellant) appeals from a judgment of

the Circuit Court of the City of Alexandria finding her guilty of

embezzlement between April 1 and September 30, 1993, and between

October 1 and December 7, 1993.   She contends that her

convictions should be reversed because the evidence was

insufficient to prove beyond a reasonable doubt that she

committed the charged offenses.   We disagree and affirm the

convictions.

     "On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom."    Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
     *
      Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
     From June of 1992 to December of 1993, appellant was

employed by Teddy Bear Day Care, which operates three day care

centers for children in Alexandria and one in Fairfax.

Originally hired as a part time office assistant, appellant made

computer entries of payments received at the Alexandria centers.

Appellant subsequently became a full time employee.    In April of

1993, appellant was given the responsibility of collecting

payments several times each week from the locked cash drop box

maintained at each of the three Alexandria centers.
     When cash was received at each center, the director or a

teacher would count the money in front of the person making the

payment and place it in an envelope with the child's name and the

amount written upon it.    The employee would issue a numbered

receipt from the cash receipts book and record the number of the

receipt on the envelope.   A duplicate of the receipt remained in

the cash receipts book.    The employee sealed the envelope and

placed it in the drop box.   In addition to recording the payment

in the receipt book, the employee would note cash payments in the

"message book" and on the account card kept for each child.

     At two of the Alexandria centers, appellant had the only key

to the drop box.   At the other Alexandria center, appellant and

the director had keys.    It was appellant's job to collect the

cash and checks from the drop boxes on Mondays, Wednesdays, and

Fridays, and deposit the contents at the bank on Mondays,

Tuesdays, and Thursdays.   Appellant would advise Wanda Webb, the




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owner of the Teddy Bear, of the deposit amount.   Appellant would

make computer entries reflecting the deposit.

     Webb testified that she would record the deposit amounts

appellant reported, make weekly totals, and compare these

notations with the bank statements.   It was appellant's

responsibility to compare the weekly totals with the cash receipt

books.

     Rosemary Burton, the day care administrator, admonished

appellant repeatedly about comparing the actual amounts of cash

she removed from the drop box with the duplicate cash receipts.

When she collected the money, however, appellant did not follow

such a procedure.
     In May of 1993, appellant also became responsible for

comparing enrollment figures with the deposit figures.     Appellant

did not advise Webb that large amounts of cash were missing,

which such a comparison would have revealed.

     Webb did not compare her notes concerning the deposits with

the cash receipt books until late November of 1993, when she

suspected that money was missing.    Webb calculated that from

April to December of 1993, there was a shortfall of $22,377.10 in

cash deposits to the bank as compared with the cash receipts and

enrollment entries on the computer for the Alexandria centers.

In the account of one child $1200 in cash had been received at

the center but not deposited in the bank.   Furthermore, after

Burton told appellant that she was going to examine the cash




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receipt book at one of the centers, the book mysteriously

disappeared.

     There was no shortfall at the Fairfax center, where

appellant had no responsibility for collecting money from the

drop box.   Moreover, Webb discovered that cash had been lost from

the Alexandria centers during the vacation period of each

center's director.

     Witnesses testified that in the fall of 1993, appellant's

financial situation appeared to improve considerably, whereas a

few months before she had inquired about filing for bankruptcy.

She possessed large amounts of cash, acquired a new car and

wardrobe, and provided a spending allowance for her boyfriend.
     Once when appellant was too ill to make the scheduled

deposit, Burton went to appellant's home to pick up the money

appellant previously had collected from the drop boxes.    When

Burton compared the cash to the receipt books at the centers, she

found three cash payments missing.    Burton called appellant, who

said she had the cash.   Burton returned to appellant's home and

appellant gave her cash exactly matching the three missing

payments.   During the remainder of appellant's illness and

absence from work, there was no discrepancy between cash received

at the Alexandria centers and that deposited in the bank.

     "To establish the crime of embezzlement under Code

§ 18.2-111, the Commonwealth must prove that the accused

wrongfully appropriated to his or her own use or benefit, with




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the intent to deprive the owner thereof, the property entrusted

or delivered to the accused."    Zoretic v. Commonwealth, 13 Va.

App. 241, 243, 409 S.E.2d 832, 833-34 (1991).   To establish

appellant's guilt, "[t]he 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 moral certainty."    Waymack
v. Commonwealth, 4 Va. App. 547, 549, 358 S.E.2d 765, 766 (1987)

(quoting Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29

(1963)).

     Appellant argues that the evidence proved neither the corpus

delicti nor that she was the criminal agent.    She relies upon

Webb, where the evidence was found insufficient to sustain the

defendant's embezzlement conviction.   In Webb, the defendant's

duties of collecting money and depositing it at the bank were

shared by other employees of the business.   The defendant and

others had used money in the cash drawer to make change for

customers, to cash personal checks, and for personal loans.

Petty cash was co-mingled with these funds, and there was no way

to discern how much had been paid out of the drawer in the course

of legitimate business.    Moreover, not all of the receipts were

deposited into the bank.   Because of the lack of internal

controls present in the business' accounting system and the

access of many to the firm's receipts, the evidence was



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insufficient to prove that an embezzlement occurred.     Id. at 35,

129 S.E.2d at 30.

        By contrast, the evidence in this case demonstrated that the

loss sustained by Teddy Bear could have occurred only through

embezzlement by appellant.    From the discrepancies noted between

the bank deposit slips and the cash receipts during the periods

of the indictments, it was apparent that the three Alexandria

centers had accepted cash for which a receipt was issued, but the

cash was never deposited in the bank.    The procedure for

receiving cash included placing it in an envelope and into the

locked drop box.    Appellant possessed the only key to the drop

box at two of the three affected centers.
        Moreover, appellant was the only person responsible for

collecting payments from the locked cash drop box, depositing the

funds in the bank, and comparing the deposit figures with the

cash receipts book.    However, she never reported that the cash

receipts did not equal the cash deposits she made to the bank.

In calculating the amount of the loss, Webb compared the deposits

to Teddy Bear's bank account with the amount that should have

been generated considering the enrollment figures and the tuition

rate.    Performing such a comparison, which was appellant's job,

would have revealed much sooner than November of 1993 that a

significant amount of cash was missing.

        Teddy Bear suffered no loss of cash from the Fairfax center,

where appellant was not involved with the deposits.



                                  -6-
Significantly, during her illness appellant withheld from Burton

three cash payments, despite having given Burton what she

purported to be the entire deposit.    She provided no explanation

for this conduct.   No cash was unaccounted for during the

remaining period of appellant's illness.    Discrepancies were

present, however, during the vacations of the directors of the

Alexandria centers.

     The court rejected appellant's testimony that she did not

take any of the money for her own benefit.    "The weight which

should be given to evidence and whether the testimony of a

witness is credible are questions which the fact finder must

decide."   Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351

S.E.2d 598, 601 (1986).   Indeed, "[t]he fact finder need not

believe the accused's explanation," Black v. Commonwealth, 222

Va. 838, 842, 284 S.E.2d 608, 610 (1981), and may "infer that he

[is lying] to conceal his guilt."     Speight v. Commonwealth, 4 Va.

App. 83, 88, 354 S.E.2d 95, 98 (1987) (citing Carter v.
Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)).

     The trial judge concluded that the evidence against

appellant was "overwhelming."   The Commonwealth's evidence was

sufficient to prove beyond a reasonable doubt that appellant

wrongfully appropriated money entrusted to her by Teddy Bear,

that she acted with criminal intent, and that her conduct was

designed to conceal her criminal purpose.     See Smith v.
Commonwealth, 222 Va. 646, 652, 283 S.E.2d 209, 212 (1981).




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Accordingly, appellant's convictions are affirmed.

                                         Affirmed.




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