                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Lemons
Argued at Richmond, Virginia


CYNTHIA LEE EAST
                                         MEMORANDUM OPINION * BY
v.        Record No. 0013-98-2        JUDGE JERE M. H. WILLIS, JR.
                                             MARCH 23, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Thomas N. Nance, Judge

          Steven D. Benjamin (Betty Layne DesPortes;
          Benjamin & DesPortes, P.C., on briefs), for
          appellant.

          Mary E. Langer, Assistant Attorney General
          (Mark L. Earley, Attorney General; Rhonda
          McGarvey, Senior Assistant Attorney General &
          Chief, on brief), for appellee.

     Cynthia Lee East was convicted of four counts of

embezzlement, specified as follows:   (1) that on or about August

1, 1996, she did embezzle U.S. currency having a value of $200 or

more, (2) that on or about February 26-27, 1997, she did embezzle

U.S. currency having a value of $200 or more, (3) that on or

about March 6, 1997, she did embezzle U.S. currency having a

value of $200 or more, and (4) that on or about March 6, 1997,

she did embezzle U.S. currency having a value of $200 or more.

On appeal, she contends that the evidence fails to support those

convictions.   We affirm the convictions relating to the March 6,



     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
1997 charges.   We reverse the convictions relating to the August

1, 1996 and February 26-27, 1997 charges.

                           I.   BACKGROUND

           On appeal, we review the evidence in the
           light most favorable to the Commonwealth,
           granting to it all reasonable inferences
           fairly deducible therefrom. The judgment of
           a trial court sitting without a jury is
           entitled to the same weight as a jury verdict
           and will not be set aside unless it appears
           from the evidence that the judgment is
           plainly wrong or without evidence to support
           it.

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

     East was one of two cashiers in the cashier's office of the

Department of General Services, where she received cash payments

relating to state surplus property auction sales.   The money was

ordinarily placed in a safe at the office until deposited.    Money

received after 12:30 p.m. was held for deposit the next day.    The

safe remained open during the day.

     A customer making payment would produce a "sale award"

certifying his successful bid, the property purchased, and the

amount owed.    The cashier receiving payment would stamp on the

sale award and initial a receipt showing the amount received,

whether the payment was by cash or check, and if by check,

identification of the check.    The cashier was then required to

record the receipt on a "check register," an internal document

designating the payor, the amount of payment, and the form of

payment.   The check registers were reviewed by June Hodge, the



                                - 2 -
other cashier, were sent by her for data entry, and were then

received back and filed.     East was responsible for reconciling

bank deposits with the related check registers.

                   II.   THE AUGUST 1, 1996 INCIDENT

     On August 1, 1996, East received $2,650 in cash from Ted

Covington Sales.    The receipt for this amount was noted on sale

award document numbered 147624 bearing East's initials, but the

corresponding entry to the check register indicated payment by

check, credited to sale award document numbered 147470.     The

August 1 check register recorded a cash payment of $2,650

received from Russell Auto.     However, Russell's receipt shows a

check number.   The bank deposit on that day equaled the total

amount shown on the check register, but reflected a cash deposit

of $2,650, not $5,300.

     The Commonwealth argues that the evidence supports a finding

that East received two cash payments of $2,650 each, one from

Covington and one from Russell, that she falsified the check

register, embezzled $2,650 cash, and placed the remaining $2,650

cash for deposit.    The evidence fails to support this

construction.   It appears plainly from the receipts given

Covington and Russell on their respective sale awards that

Covington paid cash and Russell paid by check.     Thus, only $2,650

was received in cash and that cash was deposited.      The evidence

proves no more than an error in recording the form of the

payments on the check register.     This conclusion is verified by

the fact that the amount deposited in the bank equaled the total


                                 - 3 -
amount called for by the check register.      The evidence fails to

prove that an embezzlement occurred on August 1, 1996.

                III.   THE FEBRUARY 26-27, l997 INCIDENT

        On the afternoon of February 26, 1997, June Hodge received

$687.45 in cash from Timothy Sauls.       She testified that she

placed this payment in the safe.     However, this cash was not

included in the bank deposit made by East the next day.      The

comptroller could not reconcile the February 26, 1997 batch of

check registers with the batch of deposits made on February 27,

1997.    When questioned, East told the comptroller to throw away

the check register reflecting the $687.45 receipt.      An internal

audit was made.    On April 18, 1997, four days after the employees

of the cashier's office were notified that the police would

investigate the missing cash, the Assistant Administrator of

Auction received in inter-office mail some paperwork concerning

Sauls' purchase of surplus property and an envelope containing

$687.45.    No evidence disclosed the origin of the package or how

long it had been circulating through the inter-office mail

system.

        The Commonwealth argues that East's suggestion that the

comptroller throw away the check register was an effort to

destroy evidence of the $687.45 receipt, that this was an effort

by East to cover up the existence of that sum, and that this

effort disclosed guilty knowledge and was proof that East had

misappropriated the money.     The record does not reveal all the

circumstances or the full context in which East made that


                                  - 4 -
suggestion.   It was bad advice.    It proposed a violation of the

agency's accounting system and an inappropriate solution to the

accounting discrepancy.     However, that suggestion, standing

alone, is insufficient to prove that East took the money.     No

other evidence establishes that she had any contact with the

money or even knew of its existence.      The evidence fails to prove

that East misappropriated the $687.45.

                  IV.    THE MARCH 6, 1997 INCIDENTS

     On March 6, 1997, East received a $3,050 cash payment from

Anthony Williams and a $3,550 cash payment from Walter Tally.

The check registers and deposit records of March 6 and March 7

reflect neither the receipt nor the deposit of those payments.

East made the March 6 and 7 bank deposits.

     East personally received the payments from Williams and

Tally.   Their receipts bear her initials.    However, despite her

duty to make corresponding entries in the check register, no

entries were made.      She prepared and made the deposits for March

6 and 7.    The funds from Williams and Tally were not included in

those deposits.   East argues that some other person may have

destroyed the check register entries and may have misappropriated

the cash.   However, it strains credulity to suppose that upon

making the bank deposits, East would have overlooked the absence

of $6,600 in cash that she herself had just taken in.     Thus, the

evidence is sufficient to prove that East embezzled the $6,600

cash that she had received from Williams and Tally.




                                  - 5 -
                            CONCLUSION

     We reverse the convictions for charges relating to the

August 1, 1996 and February 26-27, 1997 incidents and order those

charges dismissed.   We affirm the judgment of the trial court

convicting East of two embezzlements on March 6, 1997.

                                              Affirmed in part
                                              and reversed and
                                              dismissed in part.




                               - 6 -
Benton, J., concurring in part and dissenting in part.

        I concur in the judgment reversing the convictions for

embezzlement arising out of the incidents on August 1, 1996 and

February 26-27, 1997.    I dissent because I would also reverse the

conviction for embezzlement arising out of the incidents on March

6, 1997.    The evidence proved that the cashier's office lacked

internal accounting controls.    Because of the lack of those

controls, the evidence was insufficient to prove that Cynthia

East committed an embezzlement on March 6, 1997.

        A cashier, who worked in the office with East, was a witness

for the Commonwealth.    Explaining the procedures in place at the

time of these events, she testified that generally "[w]e get the

[bank] deposit ready about 12:30" on the day the payments are

received in the office.    The cash and checks that had been

received in the morning and that comprised the funds to be

deposited were "placed in the safe," which typically remained

open during business hours.    Those funds were "deposited the next

day."    The cashier also testified that occasionally cash received

in the afternoon "went into the safe . . . for deposit on the

next day."    Although East typically prepared the bank deposit

form for these transactions, the other cashier prepared the

deposit if East was busy performing other tasks.

        No evidence proved who prepared the deposit slips for the

deposits made on March 6 and 7, 1997.    Furthermore, the record

does not establish the amount of the bank deposit for March 6 and

March 7.    Thus, the trier of fact could not conclude that East


                                 - 7 -
prepared those deposits.      Moreover, the trier of fact could not

have concluded that the absence of the sum of $6,600 on March 6

or 7 would have been immediately obvious to East, if she did in

fact prepare the deposit slip on that day, or to the other

cashier, who may have prepared the deposit.      The record proved

that some of the deposits were for substantial sums of money --

for example, $330,640 was deposited on February 27 and larger

sums were deposited on other days.

     The evidence proved that a check register was prepared

whenever money was received by a cashier.      The check register was

a paper copy of a form that could be displayed on a computer

monitor and printed after information was typed onto the form.

This form could be accessed by the cashiers from their computer

terminals.       Typically, transactions were entered on the form by

typing the necessary information on the computer's keyboard when

the form appeared on the monitor.      The cashier would then cause

the computer to generate a paper copy of the form and data shown

on the monitor.

     The cashier testified as follows concerning the system:

             Q So anybody with access to the computer
             system could pull up that register and enter
             in the code?

             A    Yes.

             Q When you are doing it on the screen, you
             also type in your name as the one preparing
             that particular register?

             A    Yes.




                                   - 8 -
Q You didn't have any kind of password in
order to enable you to enter in the name?

A   No.

Q So if you wanted to, you could have
entered instead the name of June Hodge, the
name John Doe?

A   Yes.

Q   Or Cindy East?

A   Yes.

Q If you pulled up work that had already
been done on the screen for a register, it
was possible, it would have been possible to
type over some of the stuff that you had
already done, or delete some of the stuff you
had already done and type other information;
that would have been possible?

A   Yes.

Q And then if you had printed out a hard
copy of that, it would have showed the new
work that you substituted for the old work
while the old work was still intact on that
register?

A   Say that again.

Q If you had pulled up a ledger sheet that
had already be[en] done at the screen--

A   Uh-huh.

Q --and you type in some different
information

THE COURT:    Are you talking about this?

[DEFENSE ATTORNEY]:   Yes, one of those.

THE COURT:    The deposit and check register?

[DEFENSE ATTORNEY]:   Yes, the deposit and
check register.




                      - 9 -
            Q If you pulled that up on the screen, one
            that you had already done, and then you typed
            in some different information, for example,
            instead of Russell Auto-Truck Parts as payor,
            and you typed in Covington Sales, but you
            left everything else on the register the
            same, if you had printed a copy, printed a
            hard copy of what was shown on the screen,
            what you would get back is an altered
            register?

            A   Yeah.

The cashier also testified that some check registers consisted of

the computer generated form with information handwritten in the

appropriate spaces on the form.

     The computer generated check register forms were not

numbered sequentially as a receipt book might be.   Furthermore,

the accounting system contained no duplicate copies of documents,

no verification systems, no sequential transaction numbers, or

any other system designed to leave an accounting trail.     For

example, the person charged with reconciling the daily check

registers with the daily bank deposits testified that "sometimes

it might be a week later and sometimes a month later" that she

received the bank deposit slips.   She also testified that the

Department has instituted strict internal controls since these

events and "[w]e can't use the computer [check register] forms

anymore."

     The department's comptroller acknowledged that the system

was faulty and had been changed.   He testified as follows:

            Q Was there -- during the two years prior to
            April, '97, what procedure was there? Was
            there any procedure to insure that



                               - 10 -
             information recorded on each individual check
             register was accurate?

             A No, we did not have a separate place to
             check every place for accuracy.

             Q For example, if there was nothing in place
             to check whether or not a recorded payment
             was in cash or in check, if that was
             recorded?

             A The only procedure we had in place was
             that we had a person outside of the cashier's
             office to verify that the total dollars
             listed on these registers were indeed
             deposited in the bank.

             *          *   *        *    *      *       *

             Q There was nothing in place to insure that
             a check register, if it were filled out on a
             particular day, went anywhere; in other
             words, if someone could take in money,
             deposit it, record it on the check register,
             get a receipt, and simply not deposit the
             money, bury the check register and it might
             never show up?

             A   I guess that's a possibility.

             Q   Has that changed?

             A   Yes.


Thus, even if East prepared the proper forms for the two March 6

payments that were unaccounted for, any person having access to

the office could have removed the money and the supporting

documents, or changed the supporting documents, without

detection.

     When the Commonwealth relies upon circumstantial evidence to

prove the guilt of the accused, the following standard is

applicable:



                                 - 11 -
              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 that 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
           moral certainty.

Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963).

     The evidence in the record does not exclude the hypothesis

that East collected the two payments on March 6, that she placed

them in the open safe to be later tallied for deposit, and that

the money and attached documents were removed from the safe

before the deposit slip was prepared.   The absence of a

controlled accounting system leaves in doubt (1) whether East or

some other person removed the cash and the corresponding check

register for those cash payments or (2) whether someone created

new check registers identifying other payors of the cash.   The

Commonwealth must prove beyond a reasonable doubt that East

wrongfully and fraudulently converted the missing money.    See
Waymack v. Commonwealth, 4 Va. App. 547, 549, 358 S.E.2d 765, 766

(1987).   When evidence is equally susceptible to two

interpretations, one of which is consistent with the innocence of

the accused, the trier of fact cannot arbitrarily adopt that




                              - 12 -
interpretation which incriminates the accused.   See Littlejohn v.

Commonwealth, 24 Va. App. 401, 411, 482 S.E.2d 853, 858 (1997).

     For these reasons, I would reverse all the convictions.




                             - 13 -
