                         COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia


TONYA MICHELLE CLARY
                                           MEMORANDUM OPINION * BY
v.   Record No. 3010-00-2                JUDGE ROSEMARIE ANNUNZIATA
                                                MAY 28, 2002
COMMONWEALTH OF VIRGINIA


               FROM THE CIRCUIT COURT OF HENRICO COUNTY
                           George F. Tidey, Judge

          Robert P. Geary for appellant.

          Margaret W. Reed, Assistant Attorney General,
          (Randolph A. Beales, Attorney General, on brief),
          for appellee.


     Tonya Michelle Clary was convicted in a bench trial of

forgery and uttering, in violation of Code § 18.2-172, and grand

larceny of the proceeds, in violation of Code § 18.2-95.    The

trial court suspended imposition of sentence on the convictions

on the condition that she keep the peace and be of good behavior

for three years.    Clary appeals all three convictions on the

ground that the evidence failed to prove her identity as the

perpetrator.    For the reasons that follow, we affirm.

                              Analysis

     When the sufficiency of the evidence is challenged on

appeal, "[w]e view the evidence in the light most favorable to

the Commonwealth, granting to it all reasonable inferences

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
fairly deducible from the evidence."    Cooper v. Commonwealth, 31

Va. App. 643, 646, 525 S.E.2d 72, 73 (2000).   The credibility of

the witnesses and the weight of the evidence are matters to be

determined solely by the trier of fact.    Swanson v.

Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d 258, 259

(1989).   Accordingly, we "discard the evidence of the accused in

conflict with that of the Commonwealth, and regard as true all

the credible evidence favorable to the Commonwealth and all fair

inferences that may be drawn" from the credible evidence.

Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859,

866 (1998).   Moreover, we view the evidence presented at trial

in its entirety.    See Peoples v. Commonwealth, 147 Va. 692, 704,

137 S.E. 603, 606 (1927) ("[I]t frequently happens that the

combined force of many concurrent and related circumstances,

each insufficient in itself, may lead a reasonable mind

irresistibly to a conclusion." (citations omitted)); Hope v.

Commonwealth, 10 Va. App. 381, 386, 392 S.E.2d 830, 833 (1990)

(en banc).

     The decision of the trial court will not be disturbed

unless plainly wrong or without evidence to support it.     McGee

v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261

(1997) (en banc).   "Circumstantial evidence is sufficient to

prove guilt beyond a reasonable doubt so long as 'all necessary

circumstances proved . . . [are] consistent with guilt and

inconsistent with innocence and exclude every reasonable

                                - 2 -
hypothesis of innocence.'"   McNair v. Commonwealth, 31 Va. App.

76, 86, 521 S.E.2d 303, 308 (1999) (quoting Bishop v.

Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)).

However, "the Commonwealth need only exclude reasonable

hypotheses that flow from the evidence, not those that spring

from the imagination of the defendant."    Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

     Viewed in light of these well established principles, the

evidence proved beyond a reasonable doubt that Tonya Clary was

the criminal agent of the charged offense.   On May 22, 2000,

check number 1466 from the account of Doris Pike was cashed at

the Willow Lawn branch of BB&T.    "Tonya Clary" was the payee of

the check, and the check was endorsed with the signature "Tonya

Clary" and her social security number.    The teller noted that

the person who cashed the check presented positive

identification as "Tonya Clary."    The trial court verified that

the social security number on the check was the same social

security number listed as Clary's on her arrest warrant.

     Furthermore, only Clary had access to Pike's checkbook

during the time the check was stolen.    The evidence proved that

the check was stolen on May 11 or May 12 and that no other nurse

worked for Pike on those days.    First, Clary did not argue on

brief that the check was stolen before May 11 or after May 22.

We, therefore, need only address the period reflected in the

argument made.   See Bennett v. Commonwealth, 35 Va. App. 442,

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452, 546 S.E.2d 209, 213 (2001) (declining to consider issue not

addressed in appellant's brief).    Moreover, her attorney's

statement at trial that "you have a check that's stolen between

5/11 and 5/22" establishes that fact on appeal.     See McNallen v.

McNallen, 62 F.3d 619, 625 (4th Cir. 1995) (holding that

defendant's counsel's statement at trial, "I certainly don't

dispute that McNallen's actions were willful," a judicial

admission, established the fact of willfulness in the

litigation); West v. Anderson, 186 Va. 554, 563, 42 S.E.2d 876,

880 (1947) (refusing to consider, on appeal, plaintiff's claimed

value of land taken from him where he judicially admitted to a

value in his grounds of defense, noting that "one cannot . . .

ask that his case be made stronger than he makes it, when his

case depends on facts within his own knowledge").    Second, Pike

provided testimony that showed that the check could not have

been stolen after May 12. 1   Thus, the trial court reasonably

inferred that the check was stolen on May 11 or May 12.

         It is undisputed that no other nurse worked for Pike's

mother on May 11 or May 12.    Clary, however, worked as a

substitute nurse for Pike's mother on May 11, 2000.




     1
       At trial, Pike explained that she wrote check 1463 from
her checking account on May 8 and checks 1464, 1465, and 1467 on
May 12. Because she always wrote her checks sequentially and
would have written check 1466 if it had been in her checkbook on
that date, Pike concluded that check 1466, the stolen check, was
not in her checkbook on May 12.

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Consequently, only Clary had access to the checkbook during the

period check 1466 was stolen.

     Accordingly, Clary's hypothesis that "one of the other four

or five nurse's aides who worked at the Pike residence from May

11th to May 22nd [could have been the criminal agent]" does not

reasonably flow from the evidence, and the Commonwealth does not

have the burden of excluding it.    See Cantrell v. Commonwealth,

7 Va. App. 269, 290, 373 S.E. 328, 339 (1988) (noting that the

reasonableness of a hypothesis of innocence is a factual

finding, which is binding on appeal unless plainly wrong);

Hamilton, 16 Va. App. at 755, 433 S.E.2d at 29.   Moreover, the

evidence as a whole proved Clary was the criminal agent.     See

Peoples, 147 Va. at 704, 137 S.E. at 606; Hope, 10 Va. App. at

386, 392 S.E.2d at 833.   Therefore, we affirm Clary's

convictions.

                                                           Affirmed.




                                - 5 -
Benton, J., dissenting.

     The evidence failed to prove beyond a reasonable doubt that

appellant was the person who stole the check, forged the check,

or uttered the check.   Thus, I would reverse the convictions for

insufficiency of the evidence.

     "[T]he Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is

charged."    In re Winship, 397 U.S. 358, 364 (1970).   "Where

inferences are relied upon to establish guilt, they must point

to guilt so clearly that any other conclusion would be

inconsistent therewith."    Dotson v. Commonwealth, 171 Va. 514,

518, 199 S.E. 471, 473 (1938).    Thus, the following principles

are well established:

               Proof by circumstantial evidence "is not
            sufficient . . . if it engenders only a
            suspicion or even a probability of guilt.
            Conviction cannot rest upon conjecture."
            "'[A]ll necessary circumstances proved must
            be consistent with guilt and inconsistent
            with innocence and exclude every reasonable
            hypothesis of innocence.'" "When, from the
            circumstantial evidence, 'it is just as
            likely, if not more likely,' that a
            'reasonable hypothesis of innocence'
            explains the accused's conduct, the evidence
            cannot be said to rise to the level of proof
            beyond a reasonable doubt."

Betancourt v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d

873, 878 (1998) (citations omitted).




                                 - 6 -
     On May 12, when Doris Pike wrote checks numbered 1464,

1465, and 1467, she did not write check 1466 and apparently did

not realize that it was not in the expected sequence in her

checkbook.   Except for proof that check 1466 was cashed May 22,

and, thus, was taken before that date, no evidence proved when

the check was removed from Pike's checkbook.    Pike first learned

on June 7, when she received her bank statement, that the check

had been taken from her checkbook and cashed.   Furthermore, the

evidence proved that at least five nursing aides from the same

nursing service were in Pike's house during May prior to the

date the check was negotiated at the bank.   Even if we infer

that check 1466 was stolen by May 12, which was the day Pike

wrote checks out of sequence, Pike testified that other nursing

aides from the same nursing service were in her house prior to

that date.

     It is true that in the motion to strike at the close of the

evidence, appellant's attorney argued that the evidence showed

"you have a check that's stolen between 5/11 and 5/22 of this

year; you know its 5/22 because that's the date it was

transacted at [the bank]."   That argument, however, was not a

stipulation of a fact to be proved; it was apparently

appellant's attorney's supposition about the possible interval

from the time the check could have been removed through the date

of the negotiation of the check.   Appellant's brief on appeal,



                               - 7 -
likewise, contains no stipulation and merely references that

argument as an incident of the trial.

             The giving by the accused of an unclear or
             unreasonable . . . explanation . . . are
             matters for the jury to consider, but they
             do not shift from the Commonwealth the
             ultimate burden of proving by the facts or
             the circumstances, or both, that beyond all
             reasonable doubt the defendant committed the
             crime charged against him.

Smith v. Commonwealth, 192 Va. 453, 461-62, 65 S.E.2d 528, 533

(1951).    The evidence proved with certainty only the date Pike

wrote the check out of sequence and the date the check was

negotiated.    From the evidence in the record, the trial judge

could only have speculated who stole the check and whether the

check was stolen in May, or April, or any month prior to that

time.

        The evidence proved further that on May 22, 2001 a person

went to the same branch banking office that Pike normally uses

and cashed check 1466, which was drawn in the amount of $200.

The check, which was introduced in evidence, shows that the name

of the payee was "Tonya Clary," that the check was endorsed

"Tonya Clary," and that below the endorser's signature was a

social security number.    Pike testified that she did not write

the check, that the payor's signature is not her writing, and

that she did not authorize anyone to write the check.

        The bank teller who cashed the check did not testify.   The

only evidence in the record concerning the circumstances of the


                                 - 8 -
negotiation of the check at the bank's "drive-thru" window was

the following testimony from the bank's operations manager:

          Q: . . . .     Just tell me what's on the
          check.

          A: What's on the check? Um, identification
          that the teller received from the person who
          was cashing the check. . . .

             Identification from the person who was
          cashing the check, like a driver's license
          or whatever type of identification they used
          to cash – to verify that that is them and
          that's what the teller goes by to cash the
          check.

          Q:   And that is the payee?

          A:   Yes.

          Q:   In this case, a Tonya Clary?

          A:   Yes.

     No evidence proved that any writing on the check was

appellant's handwriting or that the person used valid

identification, if any, when cashing the check.   The record

contains no photographs identifying the person who cashed the

check at the bank.    Thus, no evidence proved that appellant

forged the check or was, in fact, the person who negotiated the

check at the bank.    From the evidence in the record the trial

judge could only have speculated who stole the check, who forged

the check, or who negotiated the check.

     Simply put, the evidence relied upon to support the

convictions is that a check was stolen from Pike's checkbook on

a date uncertain, that Tonya Clary worked in Pike's home on May


                                - 9 -
11 as a nursing aide, and that a person cashed Pike's check on

May 22, using the name Tonya Clary.    The principle is well

established that evidence is not sufficient to sustain a

conviction merely because it is consistent with guilt; it also

"must be consistent only with the guilt of the accused."       Moore

v. Commonwealth, 254 Va. 184, 189, 491 S.E.2d 739, 742 (1997).

"If the facts and circumstances proved are as consistent with

innocence as with guilt, then the evidence is not sufficient to

sustain the verdict.   Suspicion is not enough; conjecture is not

proof."   Stoots v. Commonwealth, 192 Va. 857, 865, 66 S.E.2d

866, 871 (1951).

     Because this evidence raises only a suspicion that

appellant stole the check and then cashed it, I would reverse

the convictions.




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