                               COURT OF APPEALS OF VIRGINIA


Present: Judges McClanahan, Haley and Petty
Argued at Chesapeake, Virginia


ANTHONY DAVID McDONALD
                                                             MEMORANDUM OPINION * BY
v.     Record No. 2320-07-1                                   JUDGE WILLIAM G. PETTY
                                                                 DECEMBER 9, 2008
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                               Rodham T. Delk, Jr., Judge

                 David W. Cassidy, Assistant Public Defender, for appellant.

                 Craig W. Stallard, Assistant Attorney General (Robert F. McDonnell,
                 Attorney General; Karri B. Atwood, Assistant Attorney General, on brief),
                 for appellee.


       Following a bench trial, Anthony David McDonald was convicted of one count of

embezzlement in violation of Code §§ 18.2-111 and 18.2-95. McDonald argues on appeal that

the evidence was insufficient to prove beyond a reasonable doubt that he committed

embezzlement. For the following reasons, we disagree and affirm McDonald’s conviction.

                                          I. BACKGROUND

       “On appeal, we view the evidence in the light most favorable to the Commonwealth, the

party prevailing below, giving it all reasonable inferences fairly deducible from the evidence.”

Bowling v. Commonwealth, 51 Va. App. 102, 104, 654 S.E.2d 354, 355 (2007) (citing Ragland

v. Commonwealth, 16 Va. App. 913, 915, 434 S.E.2d 675, 676-77 (1993)). McDonald worked

as a sales associate at a 7-Eleven convenience store in Suffolk, Virginia. He was responsible for

“ringing up sales, . . . sweeping, mopping, making coffee, brewing items, [and] keep[ing] the

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
store running.” McDonald was also responsible for printing and selling money orders. When a

money order was entered in the register it “automatically [told] the money order machine to print

out a [five hundred dollar] money order, or whatever denomination you put in there.” The sales

associate making the sale was responsible for depositing the cash from the sale into the safe. The

safe was described as “a soda machine; you feed [money] into a sifter and it counts the number

of [twenties], [tens] and such forth.” Each sales associate had his own employee number, which

was password-protected, and a personal identification code. Any money put into the safe was

logged under that employee’s number.

       As of February 5, 2007, McDonald had only worked at 7-Eleven for “barely two weeks”

and this was the first time he worked “unattended” by a manager. Angela Silverthorn, the store

manager, noticed that on February 5, 2007, McDonald’s register total was one thousand dollars

more than the amount he deposited in the safe. Silverthorn suspected that the one thousand

dollar deficiency was a result of a money order so she compared the Money Order Balancing

Report 1 to the Safe Report. 2 Silverthorn testified that McDonald printed several money orders

but he did not deposit cash for two of them. The two money orders for which McDonald had not

deposited cash into the safe were prenumbered 086115549554 and 086115549563 3 and




       1
         The Money Order Balancing Report indicates the shift, register, employee, transaction
time, and dollar amount of every money order sold. The Money Order Balancing Report was
entered into evidence by the Commonwealth and included in the record.
       2
        The Safe Report indicates all of the employee’s deposits and the time of those deposits.
The Safe Report was admitted into evidence by the Commonwealth and included in the record.
       3
         McDonald argues that it is “strange” that these two money orders were printed
simultaneously and yet they are nine digits apart. We do not find any irregularity in the interval
between the money orders because the Money Order Balancing Report indicates that none of the
printed money orders were printed in sequential order. In fact, with only a few exceptions, one
can almost discern a pattern that the preprinted serial numbers are all nine digits apart.

                                               -2-
amounted to five hundred dollars each for a total of one thousand dollars. Both money orders

were printed from McDonald’s register at 1:56:48 p.m. as part of the same transaction.

       The Commonwealth introduced still photographs that were taken from the video camera

located in the store. Silverthorn testified to the following:

               So we looked at the video and we see that [McDonald’s] there at
               the register. There’s nobody in front of him. He’s on the register
               pointing his fingers. He turns to the money order machine, grabs
               the money orders, walked off. And this was his first time that he
               was unattended by a level of management in the store.

       When asked by Silverthorn if he knew why his register rang up short, McDonald said that

he did not know and he could not tell her where the money was. Later, Detective Gonzalez, of

the Suffolk Police Department, testified to the following conversation with McDonald:

               Question:       “On the same date, did you sell money orders
                               number 086115549554 and number 086115549563
                               for the sums of $500 each at approximately
                               1:56 p.m.?”

               Answer:         “I’m not sure, but I’m pretty sure that I did.”

               Question:       “Do you recall who those money orders were sold
                               to?”

               Answer:         “No, I don’t.”

               Question:       “Were they sold to the same person?”

               Answer:         “I don’t know.”

               Question:       “The money order sheet received from 7-Eleven
                               managers showed that there were several money
                               orders sold before and after this alleged transaction,
                               and that all the money was accounted for. Why are
                               the two $500 missing?”

               Answer:         “I don’t know. When they first found them missing
                               I stayed to help - - to find out where the missing
                               money was.”

               Question:       “Did you take two money orders from the store in
                               the amount of $500 each without paying for them?”
                                                 -3-
               Answer:         “No.”

               Question:       “Did you allow someone else to exit the store with
                               two money orders in the amount of $500 each
                               without paying for them?”

               Answer:         “No.”

               Question:       “Do you have any idea where the missing money
                               orders went?”

               Answer:         “No.”

       The trial court found that “there were no other employees in the store” and the “money

orders were printed . . . on [McDonald’s] employee number.” The trial court concluded that this

evidence was “sufficient in the mind of the [c]ourt to prove beyond a reasonable doubt that

Mr. McDonald committed the embezzlement.” The trial court convicted McDonald of one count

of embezzlement. 4 It is from this judgment that McDonald appeals.

                                            II. ANALYSIS

       “When considering the sufficiency of the evidence presented below, we presume the

judgment of the trial court to be correct and reverse only if the trial court’s decision is plainly

wrong or without evidence to support it.” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584

S.E.2d 444, 447 (2003) (en banc) (internal quotation marks and citations omitted); see Code

§ 8.01-680. It is well established that when the Commonwealth “undertakes to prove the guilt of

the accused by circumstantial evidence, . . . it must overcome the presumption of innocence and

establish guilt beyond a reasonable doubt.” Webb v. Commonwealth, 204 Va. 24, 34, 129

S.E.2d 22, 29 (1963). Thus, “[a]ll necessary circumstances proved must be consistent with guilt

and inconsistent with innocence.” Id.


       4
         Initially, McDonald was charged with two counts of embezzlement for each money
order taken. However, the trial court concluded that both money orders were printed “literally
simultaneously” and that “[i]t’s one transaction for all practical purposes.” Thus, the trial court
found McDonald guilty of only one count of embezzlement.
                                               -4-
       To constitute the statutory crime of embezzlement, the Commonwealth must prove

beyond a reasonable doubt that McDonald “wrongfully appropriated to his own use or benefit,

with intent to deprive the owner thereof, the property of another which has been entrusted to him

by reason of his employment.” Id. at 34, 129 S.E.2d at 30; Code § 18.2-111. 5 In applying these

elements, our Supreme Court has recognized that “[w]hile proof that property . . . has been

misappropriated is not enough, standing alone, to prove that the accused was the embezzler,

where . . . there is additional evidence . . . show[ing] that the accused acted with the requisite

criminal intent and that his conduct was designed to conceal his criminal purpose,” the evidence

is sufficient to convict for embezzlement. Smith v. Commonwealth, 222 Va. 646, 652, 283

S.E.2d 209, 212 (1981) (holding that the evidence was sufficient to convict Smith of

embezzlement); accord Waymack v. Commonwealth, 4 Va. App. 547, 549, 358 S.E.2d 765, 766

(1987) (reversing the defendant’s conviction and noting the absence of evidence that she

attempted to conceal her allegedly criminal activity and the absence of evidence supplying

criminal intent).

       McDonald argues on appeal that the “store video only showed an unidentifiable person

standing behind the counter. It did not show that person making any transaction or removing

anything from the money order machines.” Thus, McDonald argues that the evidence is not

sufficient to prove that the “money orders were actually taken, and if taken, only raises a

suspicion that the defendant took them.” We disagree. We believe that a rational trier of fact


       5
           Code § 18.2-111 provides that

                If any person wrongfully and fraudulently use, dispose of, conceal
                or embezzle any money, bill, note, check, order, draft, bond,
                receipt, bill of lading or any other personal property, tangible or
                intangible, which he shall have received . . . by virtue of his office,
                trust, or employment, . . . he shall be deemed guilty of
                embezzlement.

                                                 -5-
could find that McDonald wrongfully and fraudulently printed, and misappropriated for his own

benefit, two money orders worth five hundred dollars each.

       A combination of direct and circumstantial evidence supports the trial court’s conclusion.

Silverthorn testified that the store video showed McDonald print the money orders, grab them,

and walk off. While we agree with McDonald that the still photographs taken from the store

video 6 were unclear, the testimony of Silverthorn as to what she saw on the video was not. The

absence of a corresponding cash deposit on the Safe Report after the money orders were printed

is further evidence supporting a hypothesis of guilt. So too is the absence of a customer at the

cash register at the time. When confronted by the store manager the next day all McDonald

could offer as an explanation regarding the missing money orders was a feeble “I don’t know.”

Finally, while under no obligation to speak with Detective Gonzalez, McDonald voluntarily

chose to do so, telling Gonzalez that he was “pretty sure” he had sold the money orders, but

could not remember to whom they were sold nor where they went.

       The trial court obviously rejected McDonald’s professed lack of knowledge regarding the

missing money orders. Our Supreme Court has stated “a fact-finder, having rejected a

defendant’s attempted explanation as untrue, may draw the reasonable inference that his

explanation was made falsely in an effort to conceal his guilt.” Covil v. Commonwealth, 268

Va. 692, 696, 604 S.E.2d 79, 82 (2004). “A false or evasive account is a circumstance, similar to

flight from a crime scene, that a fact-finder may properly consider as evidence of guilty

knowledge.” Id. (emphasis added). Further, we have recognized that a factfinder may “draw

reasonable inferences from basic facts to ultimate facts,” Barnes v. Commonwealth, 47 Va. App.

105, 110 n.1, 622 S.E.2d 278, 280 n.1 (2005) (citation omitted), unless doing so would push


       6
         The video itself was not admitted into evidence because it was recorded at a speed that
does not play on a regular videocassette recorder.

                                               -6-
“into the realm of non sequitur,” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d

229, 231 (2006) (citation omitted). Here, the trial court clearly found that McDonald’s professed

inability to provide any explanation regarding the money orders was deceptive. Because the trial

court found his statements to be false, the court was entitled to draw a reasonable inference that

McDonald denied knowledge of the crime in order to conceal his guilt. The trial court was

entitled to consider this as additional affirmative evidence of guilt.

       Contrary to McDonald’s argument, the evidence here goes well beyond merely

suggesting that property was misappropriated and the defendant had the opportunity to

misappropriate it. The only reasonable conclusion to be drawn from all of these facts is that

McDonald wrongfully and fraudulently printed, and misappropriated for his own benefit, the two

money orders. The trial court “rejected [McDonald’s] hypothesis as unreasonable” and “that

determination cannot be overturned as arbitrary unless no rational factfinder would have come to

that conclusion.” Haskins v. Commonwealth, 44 Va. App. 1, 9, 602 S.E.2d 402, 406 (2004).

Therefore, we conclude that the evidence was sufficient to convict McDonald of embezzlement

and we affirm his conviction.

                                          III. CONCLUSION

       For the foregoing reasons, we affirm McDonald’s conviction.

                                                                                         Affirmed.




                                                 -7-
