                        COURT OF APPEALS OF VIRGINIA


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


ALVIN T. DARDEN, JR., S/K/A
 ALVIN TYRONE DARDEN, JR.
                                           MEMORANDUM OPINION * BY
v.   Record No. 2438-00-1                   JUDGE LARRY G. ELDER
                                                JULY 17, 2001
COMMONWEALTH OF VIRGINIA


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

             Dwayne B. Strothers (Alexander P. Smith and
             Associates, P.C., on brief), for appellant.

             H. Elizabeth Shaffer, Assistant Attorney
             General (Mark L. Earley, Attorney General, on
             brief), for appellee.


     Alvin Tyrone Darden (appellant) appeals from his bench

trial conviction for embezzlement in violation of Code

§ 18.2-111.     On appeal, he contends the evidence was

insufficient to prove he acted with the requisite intent.     We

disagree and affirm the conviction.

     In reviewing the sufficiency of the evidence, we examine

the record in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.     See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).     The judgment of a trial court will be

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
disturbed only if plainly wrong or without evidence to support

it.   See id.   The credibility of a witness, the weight accorded

the testimony, and the inferences to be drawn from proven facts

are matters to be determined by the fact finder.    See Long v.

Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

      A conviction for embezzlement under Code § 18.2-111 may be

sustained on proof that the accused "wrongfully and fraudulently

use[d], dispose[d] of, conceal[ed] or embezzle[d] any money

. . . [or] check . . . which he shall have received . . . by

virtue of his . . . employment."   Code § 18.2-111; see Waymack

v. Commonwealth, 4 Va. App. 547, 549, 358 S.E.2d 765, 766

(1987).   "To establish the requisite intent, it is not necessary

to show that the defendant wrongfully appropriated the entrusted

property to his or her own personal use or benefit."    Chiang v.

Commonwealth, 6 Va. App. 13, 17, 365 S.E.2d 778, 780-81 (1988).

Under the express language of the statute, the defendant's

"diver[sion of] funds to benefit another . . . is sufficient to

establish the wrongful appropriation of the property to his or

her own use."    Id. at 17, 365 S.E.2d at 781 (emphasis added).

The statute also does not require proof that the accused

intended permanently to deprive the owner of the property.

Evans v. Commonwealth, 226 Va. 292, 297, 308 S.E.2d 126, 129

(1983); see Ketchum v. Commonwealth, 12 Va. App. 258, 261, 403

S.E.2d 382, 383 (1991).   Proof of the "'[u]nauthorized and

wrongful exercise of dominion and control over another's

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personal property, to the exclusion of or inconsistent with

[the] rights of the owner" is sufficient.    Evans, 226 Va. at

297, 308 S.E.2d at 129 (quoting Black's Law Dictionary 300 (5th

ed. 1979)).

     Embezzlement is punishable as grand larceny if the value of

the property wrongfully appropriated exceeds $200.    See Code

§ 18.2-111; see also Code §§ 18.2-95, 18.2-96.

     Intent may, and usually must, be proven by circumstantial

evidence, see Servis v. Commonwealth, 6 Va. App. 507, 524, 371

S.E.2d 156, 165 (1988), such as a person's conduct and

statements, see Long, 8 Va. App. at 198, 379 S.E.2d at 476

(1989).   Proof of deceitful conduct, for example, may establish

the requisite fraudulent intent.    See Smith v. Commonwealth, 222

Va. 646, 652, 283 S.E.2d 209, 212 (1981) (in case involving

disappearance of arena tickets for wrestling event, noting

defendant's prior inconsistent statements about his contact with

tickets established untruthfulness and provided evidence of

requisite criminal intent, which, in turn, was relevant to

establish that he was the criminal agent); Waymack, 4 Va. App.

at 550, 358 S.E.2d at 766 (in reversing defendant's conviction,

noting absence of evidence that she attempted to conceal

allegedly criminal activity).

     "Circumstantial evidence is as competent and is entitled to

as much weight as direct evidence, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of

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guilt."    Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d

864, 876 (1983).   "[T]he Commonwealth need only exclude

reasonable hypotheses of innocence 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).

     Here, the evidence, viewed in the light most favorable to

the Commonwealth, established that appellant "wrongfully and

fraudulently use[d], dispose[d] of, conceal[ed] or embezzle[d]

any money . . . [or] check . . . which he shall have received

. . . by virtue of his . . . employment."    Code § 18.2-111.

Although the evidence indicated that appellant's employer, Lucia

Specialized Hauling, had sometimes allowed employees to treat

company travel expense funds as an advance on their pay under

certain circumstances, Dispatcher Diane Scott testified that she

and appellant had been reprimanded for the previous improper use

of company funds and were "on a little bit of a[] . . . trial,

so to speak."   As a result, Scott specifically told appellant

that the two company checks she gave him on June 25, 1999, were

"[f]or [the] trip" on which he was about to depart and that he

should be "very careful with [the] money."   The trial court, as

the finder of fact, was entitled to credit Scott's testimony and

to disbelieve appellant's claim that Scott gave him no such

warning.



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     Despite Scott's warning, appellant admitted that he cashed

the second $200 check and gave the proceeds to his wife before

leaving town on his trucking assignment, and the funds,

therefore, were unavailable when his truck required emergency

repairs.   When appellant contacted Lucia about his mechanical

difficulties, he lied to Scott and Kary Harrell, the company's

manager, about what had happened to the check.   Appellant

claimed he did so because Scott would have been mad if she knew

he had given the money to his wife, but the trial court was

entitled to reject this testimony and to conclude that appellant

lied about losing the check in an effort to prevent his employer

from learning he had appropriated the funds for his own use.

     Thus, the only reasonable hypothesis flowing from the

evidence, viewed in the light most favorable to the

Commonwealth, was that appellant embezzled at least $200 from

his employer.   Appellant's act of giving the money to his wife

constituted the "wrongful exercise of dominion and control over"

Lucia's property and was inconsistent with the rights of the

owner because the funds were unavailable for use when

appellant's truck required emergency repairs.

     Zoretic v. Commonwealth, 13 Va. App. 241, 409 S.E.2d 832

(1991), cited by appellant on brief, is inapposite.   In Zoretic,

the evidence was insufficient to establish that the accused was

the criminal agent.   Id. at 243-44, 409 S.E.2d at 834.   Although

someone had deprived the undercover agent of his money, a

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reasonable hypothesis flowing from the evidence, viewed in the

light most favorable to the Commonwealth, was that "Zoretic was

attempting to fulfill his agreement [with the undercover

officer] to purchase drugs" and that it was Zoretic's supplier,

McPherson, rather than Zoretic, who misappropriated the

officer's money.    Id. at 244, 409 S.E.2d at 834.   This Court

held that Zoretic's repeated acknowledgment of his debt to the

officer and his promise to repay him was insufficient to prove

either that he was the criminal agent or that he acted with the

requisite intent.    Id.

     In appellant's case, in contrast to Zoretic, the identity

of appellant as the person who appropriated the money was not

contested.   The only disputed issue was whether appellant's

actions constituted embezzlement.   As detailed above, the only

reasonable hypothesis flowing from the evidence, viewed in the

light most favorable to the Commonwealth, was that appellant

acted with the requisite intent when he diverted the money for

the benefit of a third party, rendering it unavailable for his

employer's use.    Scott specifically warned appellant the money

was to be used for business purposes.   Appellant used the money

for a non-business purpose, giving it to his wife before ever

even leaving on his trip.   Although he claimed at trial that he

thought the company would simply deduct the amount from his

paycheck, he demonstrated a consciousness of guilt when he lied



                                - 6 -
to Scott and Harrell about what he had done with the money,

telling them originally that he had lost it.

     For these reasons, we hold that the circumstantial evidence

was sufficient to exclude all reasonable hypotheses of

appellant's innocence, and we affirm appellant's conviction.

                                                         Affirmed.




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