                  COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia


STEPHEN WAYNE FERGUSON
                                         MEMORANDUM OPINION * BY
v.   Record No. 1667-00-1                 JUDGE ROBERT P. FRANK
                                              JULY 24, 2001
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
                    E. Everett Bagnell, Judge

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

          Richard B. Smith, Senior Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     Stephen Wayne Ferguson (appellant) appeals his convictions of

six counts of embezzlement and two counts of conspiracy.   On

appeal, he contends the trial court erred in:   1) finding the

evidence sufficient to support his convictions for embezzlement

and conspiracy; 2) finding the evidence sufficient to prove that a

deprivation of property occurred; and 3) denying his motion to

strike the multiple convictions under the single larceny doctrine.

Finding no error, we affirm appellant's convictions.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                             I.   BACKGROUND

        Chris Pope worked at the Southside Gin (the company) in

Southampton from 1991 to 1998 and began marketing cotton for the

company in 1996.    Appellant and Sam Pope, Chris's father, were

equal partners in the company until 1998, when the ownership

changed.    At that time, one-third of the company was purchased by

Old Dominion Fibers, a corporation owned by Jeffrey Pope, Mark

Pope and Chris Pope.    Appellant and Sam Pope each had a one-third

ownership interest in the company.

        During the period between 1996 and 1997, the company built

another gin in Wakefield, costing between $3.1 million and $3.2

million.    The company also built an oil company.   Cost overruns

were covered by funds due to farmers for their cotton.    Farmers,

or cotton producers, would often leave money on deposit with the

company, receiving interest on their money, subject to demand for

payment.

        Chris Pope became the Southampton gin manager in summer 1997,

when the company's debt was approximately $1 million.    Due to the

financial condition of the gin, its government license to store

cotton was revoked and this action was made public.

        Chris Pope was unable to refinance the gin's debt in summer

1997.    He also was unable to reduce the company's short-term debt,

which was draining the company's cash flow.

        When farmers demanded payment on money they were due, the

business was able to meet the demand until late 1997, just before

                                  - 2 -
the ginning season.   However, there was a run on the demand money

after notice of the lost license was made public.

     A $620,000 loan from Sam Pope met the farmers' demands up to

the 1997 ginning season.   Still, $500,000 remained due to the

farmers, which the company could not cover.

     Appellant was aware of the company's financial plight.      He

had no additional funds to invest in the company.   He had

financial problems with a hog farm he independently owned.

Appellant also knew of the $1.8 million dollar debt to the

farmers.   Chris Pope told appellant that he was negotiating loan

refinancing with some banks and that if the company could

financially survive the 1997 season, the banks might refinance.

     In this financial setting, Chris Pope decided he needed to

divert cotton from the farmers, sell the cotton bales, and use

those proceeds to create a fund to pay the farmers' demands for

their money.

     Chris Pope's plan was to randomly tag a bale of cotton from a

module after the ginning process was completed.   The yellow-tagged

bale, so selected, would not be entered into the company's

computer and the farmer would not be compensated for that bale.

The bale would then be sold separately.

     Chris Pope stated he first discussed his skimming scheme with

the gin's manager, Tom Riddick, prior to the ginning season in

September 1997.   He stated that he did not tell Riddick what he

was going to do with the money.   When Riddick agreed to the plan,

                               - 3 -
Chris Pope then told appellant about his plan to make extra money

for the company.

     Specifically, Chris Pope testified he told appellant, "That I

thought we needed to randomly take a bale off a module, not class

it and I would look after selling it so the money would be

available if we needed it."   Chris Pope said that appellant

responded, "We needed to make sure that we did what we had to do

to make sure the company survived."     There was no discussion as to

the details or mechanics of the plan.

     Chris Pope's plan commenced with the random selection of

modules.   One of its bales would then be tagged with a yellow

warehouse tag carrying a number that always began with "106."

These "106" bales would not be scanned into the computer and,

thus, not reported to the United States Department of Agriculture.

The company's Mexican labor force was told that these bales were

not being classed because they were going to a specific mill.

During the 1997 season, 911 bales were diverted by this scheme and

the funds were paid to Old Dominion Fibers.    The "106" bales were

not shown on any farmer's payment reports nor were the farmers

paid for those bales.   Chris Pope and Riddick kept a separate

handwritten list of the "106" bales.    The total value of the "106"

bales in 1997 was $180,000.   Chris Pope further testified that he

would not have "skimmed" the bales if appellant had not agreed.

     Riddick testified that Chris Pope told him about his plan to

help the company's cash flow.   Riddick claimed that Chris Pope

                                - 4 -
assured him the farmers would be paid.   Chris Pope told Riddick he

had talked his scheme over with appellant.   Riddick testified that

on the same day he talked to Chris Pope, appellant asked Riddick

if Pope had told him about what Pope had planned.

     Riddick testified,

           I said yes, sir, he told me about, you know,
           marking the modules and pulling the bales off
           to the side. My first question to Steve
           [appellant] was was this something you -- you
           know, you-all really considering doing this.
           I was concerned, you know, about what they
           were doing. And Steve made the comment it
           was something we have to do to survive.

     Riddick then asked appellant if his partner, Sam Pope, knew

"what was going on."   Appellant responded that at that time they

felt that Sam Pope did not need to know.   Appellant stated that

Chris Pope would take care of the money and who needed to know in

the office.   Appellant told Riddick not to worry about those

matters.

     Appellant had overall responsibility for the gin's Mexican

labor force, who were entitled to a bonus based on the number of

bales ginned.   Riddick testified appellant was at the gin almost

every day in 1997.   The workers became concerned in 1997 when they

noticed the "106" bales were not being scanned into the computer.

Chris Pope told appellant of these concerns as did Evaristo

Ambriz, the leader of the Mexican work force.

     In early December 1997, Ambriz expressed concern about the

"106" bales to Riddick and appellant.    When he met with them at


                               - 5 -
the gin, Ambriz directed his comments to appellant who had the

final decision on the amount of the bonuses.    When Ambriz told

appellant to make sure the "unlisted bales" were included in the

bonuses, appellant replied, "They've been taken care of," and

mentioned the number of bales involved, which Ambriz believed was

around 930.

        A number of the gin's employees knew that the "106" bales

were handled differently.    Alex Delgado testified that in loading

bales for shipment from the warehouse, he would be provided with a

computer printout on the normal bales but was given a paper list

of "106" bales to be placed on a particular load.

        John Lopez was a forklift operator at the Southampton gin in

1997.    He testified that the bales on the dock usually were tagged

in sequence.    He stated there was a series of "106" bales that

were not scanned into the computer, although the other bales were

entered.    Lopez weighed the "106" bales and kept a record of each

bale's number and weight.    This list was either picked up or Lopez

delivered it to the office.    Because part of Lopez's pay came from

a bonus on the bales produced, he became concerned that the "106"

bales would be excluded from his count.

        Prior to the 1998 season, Chris Pope told Riddick and

appellant it again would be necessary to "do the same thing"

because the company's financial situation had not improved.     Pope,

however, changed the system by placing every thirteenth tag in a

box of bale tags with an out-of-sequence number, and the bales

                                 - 6 -
would be scanned in the computer.    These bales were to be taken to

the Wakefield facility, owned by Jeff Pope, Chris Pope and Mark

Pope.    Appellant again responded that Pope needed to do whatever

was necessary for the company to survive.

        In 1998, a "312" tag sequence was used for bales removed out

of sequence from modules, marked with an "X" and placed separately

in the warehouse.    Delgado stated that he and John Lopez "stuffed"

the tag boxes with the out-of-sequence tags from a list given to

them by Chris Pope.

        Riddick stated that in July or August 1998, Chris Pope, Sam

Pope, Riddick and appellant met at the gin.    Appellant presided at

the meeting.    Appellant asked Chris Pope "about how things were

coming along with um –-- you know, his plan that he had talked

about."    Chris Pope told appellant and the others more details of

the plan, specifically tagging the thirteenth bale, using the

Wakefield facility and entering the bales into the computer.

        When Cecil Byrum's cotton was processed at the Wakefield gin

in 1998, Ambriz noticed that every thirteenth bale had an

out-of-sequence tag number.    Although the computer showed that

sixty bales had been processed, sixty-six bales had actually been

ginned.

        Appellant denied any knowledge of any plan to deprive the

farmers of any cotton or revenue.    Appellant testified he became

concerned about the gin's operation in 1996 and also concerned

about the Wakefield gin to be built in 1996 or early 1997.    The

                                 - 7 -
general manager, Flippin, advised appellant in early 1997 about a

lot of cost overruns and that the oil mill and the Wakefield gin

were costing a lot more than anticipated.

     In late summer 1997, appellant spoke with Chris and Sam Pope

about the gin's financial condition.    They owed a tremendous

amount of money and were in serious trouble.    Appellant testified

he talked about consulting a bankruptcy lawyer, but Sam Pope

refused to discuss bankruptcy when he saw they owed the farmers

$1.8 million.   At a meeting the next week, however, Sam Pope

agreed to put up $500,000 and said he would try to get

refinancing.

     Appellant testified he had a meeting with Chris Pope during

which Pope stated he was planning on not "classing" some cotton

because it would save the farmers money.    Appellant was assured it

was legal to sell unclassed cotton.     "Classing" cotton is a

process in which a sample of cotton is sent to a federal

government facility in South Carolina for classification.    By not

"classing" it, the cotton could be marketed quicker and would give

the business a "competitive edge."     Appellant denied any knowledge

of skimming or any agreement to do so.

     Appellant admitted meeting with Riddick and Ambriz over the

workers' concerns that they might not get bonuses on the

"non-classed bales."   Riddick showed Ambriz several sheets that

listed the regular bales and the non-classed bales.



                               - 8 -
       Appellant denied that there was a meeting in 1998 to discuss

a plan for that ginning year.     He further denied ever stating that

Chris Pope had to do whatever was necessary for the company to

survive.

       Appellant acknowledged being aware that farmers were leaving

money with the gin, which would have to be repaid upon demand.     He

knew the gin could not meet all the demands and would have to

close without additional funds.     Appellant acknowledged that the

idea was just to survive the 1997 season and hope for refinancing

in 1998.   Appellant also acknowledged that he personally had

financial difficulties.    He admitted he possibly would be broke if

the gin did not survive.    He had no more funds to put into the

gin.

       To summarize, appellant testified he did not know the bales

were not being shown on the computer, that skimming was occurring,

and that the bales were not accounted for to the farmers.    His

only knowledge was that certain bales were not being "classed" by

the United States Department of Agriculture.

       Appellant was convicted by the trial court of six counts of

embezzlement and two counts of conspiracy.

                            II.    ANALYSIS

       Appellant first contends that the evidence was not sufficient

to convict him of embezzlement and conspiracy.

                 "Where the sufficiency of the evidence
            is challenged after conviction, it is our
            duty to consider it in the light most

                                  - 9 -
          favorable to the Commonwealth and give it all
          reasonable inferences fairly deducible
          therefrom. We should affirm the judgment
          unless it appears from the evidence that the
          judgment is plainly wrong or without evidence
          to support it." Higginbotham v.
          Commonwealth, 216 Va. 349, 352, 218 S.E.2d
          534, 537 (1975). Moreover, "[i]f there is
          evidence to support the conviction, an
          appellate court is not permitted to
          substitute its own judgment for that of the
          finder of fact, even if the appellate court
          might have reached a different conclusion."
          Commonwealth v. Presley, 256 Va. 465, 466,
          507 S.E.2d 72, 72 (1998).
               Furthermore, "[t]he credibility of a
          witness and the inferences to be drawn from
          proven facts are matters solely for the fact
          finder's determination. In its role of
          judging witness credibility, the fact finder
          is entitled to disbelieve the self-serving
          testimony of the accused and to 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) (citations
          omitted).

Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10

(2000).

     "To establish the statutory crime of embezzlement, the

Commonwealth must prove that the accused wrongfully appropriated

to [his] use or benefit, with the intent to deprive the owner

thereof, the property entrusted to [him] by virtue of [his]

employment or office."   Nestle v. Commonwealth, 22 Va. App. 336,

341, 470 S.E.2d 133, 136 (1996) (citing Waymack v. Commonwealth, 4

Va. App. 547, 549, 358 S.E.2d 765, 766 (1987)).

     The Commonwealth is not required to prove that the accused

intended to permanently deprive the owner of the property.


                               - 10 -
Ketchum v. Commonwealth, 12 Va. App. 258, 261, 403 S.E.2d 382, 383

(1991) (citing Evans v. Commonwealth, 226 Va. 292, 308 S.E.2d 126

(1983)).   "[P]roperty is converted when there has been an

'[u]nauthorized and wrongful exercise of dominion and control over

another's personal property, to exclusion of or inconsistent with

rights of the owner.'"   Id. (quoting Evans, 226 Va. at 297, 308

S.E.2d at 129).

                Proving intent by direct evidence often
           is impossible. See Servis v. Commonwealth, 6
           Va. App. 507, 524, 371 S.E.2d 156, 165
           (1988). Like any other element of a crime,
           it may be proved by circumstantial evidence,
           as long as such evidence excludes all
           reasonable hypotheses of innocence flowing
           from it. See Rice v. Commonwealth, 16 Va.
           App. 370, 372, 429 S.E.2d 879, 880 (1993)
           (citations omitted). Circumstantial evidence
           of intent may include the conduct and
           statements of the alleged offender, and
           "[t]he finder of fact may infer that [he]
           intends the natural and probable consequences
           of his acts." Campbell v. Commonwealth, 12
           Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) (en
           banc) (citation omitted).

Adams v. Commonwealth, 33 Va. App. 463, 470-71, 534 S.E.2d 347,

351 (2000).

                "Conspiracy is defined as 'an agreement
           between two or more persons by some concerted
           action to commit an offense.'" Feigley v.
           Commonwealth, 16 Va. App. 717, 722, 432
           S.E.2d 520, 524 (1993) (quoting Wright v.
           Commonwealth, 224 Va. 502, 505, 297 S.E.2d
           711, 713 (1982)). Proof of an explicit
           agreement is not required, and the
           Commonwealth may, and frequently must, rely
           on circumstantial evidence to establish the
           conspiracy. See Stevens v. Commonwealth, 14
           Va. App. 238, 241, 415 S.E.2d 881, 883
           (1992). "[A] conspiracy may be inferred from

                               - 11 -
          the overt actions of the parties, and a
          common purpose and plan may be inferred from
          a development and collocation of
          circumstances." McQuinn v. Commonwealth, 19
          Va. App. 418, 425, 451 S.E.2d 704, 708 (1994)
          (internal quotations and citations omitted),
          aff'd en banc, 20 Va. App. 753, 460 S.E.2d
          624 (1995).
               "Where . . . it has been shown that the
          defendants 'by their acts pursued the same
          object, one performing one part and the
          others performing another part so as to
          complete it or with a view to its attainment,
          the [fact finder] will be justified in
          concluding that they were engaged in a
          conspiracy to effect that object.'" Brown v.
          Commonwealth, 10 Va. App. 73, 78, 390 S.E.2d
          386, 388 (1990) (citations omitted).

Combs v. Commonwealth, 30 Va. App. 778, 787, 520 S.E.2d 388,

392-93 (1999).

               Guilty knowledge must be proved against
          each conspirator but it is only necessary to
          prove that the defendant conspirator "had
          such guilty knowledge, no matter how, where
          or when he acquired it." Sands[v.
          Commonwealth], 62 Va. (21 Gratt.) [871,]
          899-900 [(1872)].
               "[L]iability as a conspirator is not
          dependent on knowledge of the entire scope of
          the conspiracy. Knowledge need not extend to
          all the details of the conspiracy, the
          identity of the other conspirators, the part
          each member of the conspiracy is to play, or
          how the spoils of the conspiracy are to be
          divided." 16 Am.Jur.2d Conspiracy § 14
          (1979).
               When one accedes to the conspiracy he
          sanctions what may have been previously done
          or said by the other in furtherance of the
          common object. Sands, 62 Va. (21 Gratt.) at
          895.

Amato v. Commonwealth, 3 Va. App. 544, 552-53, 352 S.E.2d 4, 9

(1987).


                              - 12 -
     Appellant concedes Chris Pope embezzled cotton from the

farmers.   We believe the evidence amply supports the trial court's

finding that appellant is also guilty of conspiracy and

embezzlement.

     We first address the embezzlement convictions.   When the

cotton bales were removed from the normal stream of production and

converted to the perpetrators' use, the embezzlement was complete.

At that point, appellant and his co-conspirators exercised

dominion and control over the farmers' cotton inconsistent with

the rights of the owners.   Thus, the evidence was sufficient to

support the convictions for embezzlement.

     Appellant contends the evidence was insufficient to support

his convictions for conspiracy.   It is uncontroverted that the

company was deeply in debt and could not cover the debt owed the

farmers.   Appellant knew of this situation and was, himself,

unable to generate funds to further capitalize the business.

Chris Pope told appellant that after the 1997 ginning season he

might be able to refinance the debt.

     Chris Pope decided on a scheme to divert cotton from the

farmers to create a fund to pay the farmers' demands for their

money.   Pope told appellant that they would randomly take a bale

of cotton off a module, not "class" it, and sell it so the money

would be available if needed.   Appellant responded that they

needed to do what was necessary to insure the company's survival.



                                - 13 -
There was no discussion at that time of how the plan would be

implemented.

     Further, appellant was a partner in the company and knew the

operation of the business.   The fact finder could infer he knew

that bales were accounted for by entering them into the computer

and that farmers were paid based on the bales produced and sold.

Appellant knew that the "106" bales were not entered into the

computer.    Ambriz, on behalf of the Mexican workers, expressed his

concern about the "unlisted bales."      Appellant responded, "They

had been taken care of."   Appellant then spoke to the unhappy

workers.    He assured them that they would be paid for all of the

ginned bales, indicating there would be a print out of the "yellow

tag" bales given to the workers.   Appellant told the workers that

the "yellow tag" bales were being marketed differently.     Appellant

even knew the number of "skimmed" bales.     The fact finder could

reasonably infer that appellant knew of the diversion of the

cotton.

     The evidence further established that appellant suggested

secrecy in not revealing the plan to his partner, Sam Pope.     When

asked whether Sam Pope had been told of the plan, appellant said

that Sam Pope should not be informed at that time.     Appellant

further responded that Chris Pope would take care of "who needed

to know."   Appellant told Riddick not to worry about these

matters.    The trial court could infer that appellant concealed the

illegality of the plan by not telling his partner, Sam Pope.

                                - 14 -
     There was another agreement prior to the 1998 ginning season

to divert cotton bales and, thus, deprive the farmers of the

income from the sale of those bales.    In July or August 1998,

appellant presided at a meeting attended by Chris Pope, Sam Pope,

and Riddick.   Appellant asked for a status report of the "plan."

Chris Pope related the details of a new plan whereby every

thirteenth bale would be set aside and handled through the

Wakefield facility.   Earlier, Chris Pope had told appellant that

it would be necessary to "do the same thing" because the company's

financial condition had not improved.   Again, appellant said that

they must do whatever was necessary to survive.    Knowing of the

previous year's plan, appellant clearly approved and agreed to

"skimming" the cotton bales for the 1998 season.   Appellant denied

such a meeting in 1998 to discuss any "plan."

     "In its role of judging witness credibility, the fact finder

is entitled to disbelieve the self-serving testimony of the

accused and to 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) (citing Speight v. Commonwealth, 4 Va. App.

83, 88, 354 S.E.2d 95, 98 (1987) (en banc)).

     For the fact finder to accept appellant's testimony, the

trial court had to believe that appellant, as an active partner,

knew nothing of the operations of the gin.   The trial court had to

believe that appellant had no knowledge that entry of the bales



                               - 15 -
into the computer was required in order for the farmers to be

paid.

        The fact finder had to believe that appellant, knowing that

two sets of records were kept, one for the listed bales and

another for the "106" bales, did not know that some bales were

being "skimmed."    The fact finder had to believe that appellant

chose not to tell his partner, Sam Pope, of a wholly legal

marketing plan.    Further, the trial court had to believe that when

Chris Pope told appellant that the unclassed bales would be sold

so the proceeds would be available, if needed, appellant did not

know that the proceeds were being diverted from the farmers.

        Appellant next contends the Commonwealth failed to prove that

he had the specific intent to deprive the rightful owner of

property because the Commonwealth failed to identify the cotton

farmers.    Appellant argues that because the clients of Old

Dominion Fiber were paid, they were not the subject of

embezzlement.    And, because the Commonwealth did not distinguish

between the Old Dominion clients and the Southside Gin clients,

the Commonwealth did not meet its burden of proof.

        Appellant's argument has no merit.   Assuming that the clients

of Old Dominion Fiber ultimately were paid for the bales, our

embezzlement jurisprudence does not support appellant's theory.

It is immaterial whether the farmers got paid at a later date.




                                 - 16 -
     We next address appellant's contention that he should have

been convicted of only one count of embezzlement because all of

the larcenous acts were done pursuant to a single intent.

     As this Court stated in Acey v. Commonwealth, 29 Va. App.

240, 247, 511 S.E.2d 429, 432 (1999):

               A series of larcenous acts will be
          considered a single count of larceny if they
          "are done pursuant to a single impulse and in
          execution of a general fraudulent scheme."
          West v. Commonwealth, 125 Va. 747, 754, 99
          S.E. 654, 656 (1919). We must consider the
          following factors when deciding whether the
          single larceny doctrine applies: (1) the
          location of the items taken, (2) the lapse of
          time between the takings, (3) the general and
          specific intent of the taker, (4) the number
          of owners of the items taken and (5) whether
          intervening events occurred between the
          takings. See Richardson v. Commonwealth, 25
          Va. App. 491, 497, 489 S.E.2d 697, 700
          (1997). "The primary factor to be considered
          is the intent of the thief . . . ." See id.

     In Richardson v. Commonwealth, 25 Va. App. 491, 497, 489

S.E.2d 697, 700 (1997) (en banc), we held, "[u]nless the evidence

proves that two or more separate and discrete thefts occurred at

separate times which were not part of the same larcenous impulse,

then thefts from the same room are but a single larceny."   Id.

However, "if different articles are taken from different owners at

different times, the thief has committed separate offenses."    Id.

at 495, 489 S.E.2d at 699 (citation omitted).

     In this case, the cotton bales were converted over a period

of six to seven weeks.   The bales were owned by different farmers.

Clearly, time intervened between each act of conversion.    While

                               - 17 -
there was a general scheme to convert the cotton bales, there was

a separate intent to convert each time the bales were diverted.

Under the rationale of Acey and Richardson, the single larceny

doctrine does not apply.

     Finally, appellant contends there was only one conspiracy.

He argues that the 1998 agreement was simply an extension of the

1997 conspiracy.   The facts belie this argument.

     It is clear that the parties intended for the 1997 conspiracy

to end at the conclusion of that season.    Chris Pope indicated he

was negotiating with banks to refinance the company's debt after

the 1997 season.   Prior to the 1998 season, the conspirators again

met to evaluate the need for the plan to continue for that season.

A new agreement and, thus, a new conspiracy arose.   It is clear

from the facts that the first conspiracy terminated at the end of

the 1997 season.

     For these reasons, we find the evidence was sufficient to

support appellant's convictions of embezzlement and conspiracy, to

establish that appellant committed more than one larceny, and to

prove that there were two conspiracies.    We, therefore, affirm the

judgment of the trial court.

                                                           Affirmed.




                               - 18 -
