                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Benton and Elder
Argued at Richmond, Virginia


ANGELA MARIE PETTWAY
                                          MEMORANDUM OPINION * BY
v.   Record No. 0599-97-2               JUDGE JAMES W. BENTON, JR.
                                              JUNE 16, 1998
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                    Herbert C. Gill, Jr., Judge
           John E. Dodson (Gordon, Dodson & Gordon, on
           briefs), for appellant.

           Ruth Ann Morken, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.



      Angela Marie Pettway was convicted of embezzling funds in

excess of two hundred dollars from her employer.    See Code

§§ 18.2-95 and 18.2-111.    She contends that the evidence was

insufficient to prove the elements of the offense beyond a

reasonable doubt.    For the reasons that follow, we reverse the

conviction.

                                  I.

      The evidence proved that Angela Marie Pettway was employed

as an assistant manager at a McDonald's restaurant.   One of

Pettway's duties was to periodically deposit the restaurant's

money at the bank.    The restaurant's owner required all monies

which were to be deposited in the bank to be placed in a clear

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
plastic bag and assigned a specific number.    Prior to making a

deposit, the assistant manager was required to record on a ledger

the bag number, deposit amount, and deposit date and to initial

the entry.   The deposit was then to be placed in the outside

deposit box at the People's Bank of Virginia.    Approximately two

days after each deposit, the bank routinely sent to the

restaurant's office manager a deposit slip for any money

deposited.
     On August 5, 1996, Pettway entered on the ledger a deposit

pursuant to the restaurant's policy.    On August 9, the

restaurant's office manager was reviewing deposit slips from the

bank when she discovered that a deposit slip for $2,947 was

missing.   The ledger indicated that $2,947 was to have been

deposited on August 5, by Pettway.     During her search for the

deposit, the office manager spoke with the bank manager, who said

the bank never received the deposit.

     The same day, the office manager called Pettway at home to

make inquiry.   Pettway said that she had been responsible for

several deposits during the week and that she had not made one of

these deposits, which could have been the August 5 deposit.     The

office manager testified that she later learned that the deposit

on August 6 had been made by another person.

     The bank manager testified and described the bank's general

procedure for handling deposits received from the deposit box.

She explained that the customer has a key that opens the box.




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When the deposit is placed in the deposit box, it drops through a

chute into a large bin.    The door to the deposit box

automatically locks when closed.   When the bank's employees

collect the deposits from the box inside the bank, two bank

employees remove the contents, count the deposits, and record the

amount.   Each deposit is then processed by a teller.    The bank

manager also testified that the deposit box undergoes regular

maintenance inspections and that she was not aware of any

malfunctions on August 5.
       Pettway testified she entered the deposit on the ledger,

went to the bank on August 5, and put the money into the deposit

box.   She also testified that as she was driving on the bank's

premises to make the deposit, she saw Robert Davis, an insurance

broker, standing outside and waved to him.   Pettway explained her

response to the office manager's inquiry by testifying that she

had arranged with the restaurant's manager to leave a deposit in

the safe that same week because she had to leave work early for a

dental appointment.   She testified that another employee made

that deposit on August 6 in her stead.

       Davis, the insurance broker, testified that he saw Pettway

at the bank on August 5.    He testified that he was talking to a

customer when he saw Pettway in the lane leading to the deposit

box.   However, he did not see whether she made a deposit.

       Troy Ross, another restaurant employee, testified he also

makes deposits at the bank for the restaurant.   He testified that




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in early 1996 when he was making a deposit, the bank's deposit

box was malfunctioning.    When he approached the box, he noticed

that it was ajar.   Two deposit bags had become lodged in the

chute so as to keep the door open.      He opened the door and

slammed it closed to cause the bags to drop.

     At the conclusion of the evidence, the trial judge convicted

Pettway of embezzlement.

                                 II.
     To sustain a conviction for embezzlement under Code

§ 18.2-111, the Commonwealth must prove three elements:     (1) the

accused received property by virtue of her employment for her

employer; (2) the accused wrongfully and fraudulently converted

the property to her own use; and (3) the value of the property

exceeds $200.   See Code § 18.2-95.     The Commonwealth must prove

beyond a reasonable doubt that the accused wrongfully and

fraudulently converted the missing money.      See Waymack v.

Commonwealth, 4 Va. App. 547, 549, 358 S.E.2d 765, 766 (1987).

     Where the Commonwealth relies on circumstantial evidence to

meet its burden of proof, the following standard applies:
          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 [this] 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



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          moral certainty.


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

     The evidence regarding the bank procedures for handling

deposits that were put in the box established only the usual

procedures.   The bank manager testified that she had no knowledge

of what occurred on August 5.   The Commonwealth failed to offer

testimony from bank employees charged with accepting and

accounting for deposits made on August 5, 1996.   Because those

persons had access to any money that was deposited, the proof

failed to establish a vital link in the handling of the funds.

The bank manager's testimony of the usual procedure was not

sufficient to prove beyond a reasonable doubt that Pettway did

not deposit the funds in the deposit box on August 5.   The bank

manager's testimony leaves to speculation whether the funds in

the clear plastic bag were removed by the bank employees.
     Furthermore, Troy Ross, another restaurant employee,

testified that on an occasion when he made a deposit at the bank,

he had found the deposit box jammed and ajar.   Ross testified

that he opened the box with his fingers and could have removed

the deposit bags.   His testimony proved that the box could have

malfunctioned on August 5 and been the cause of the lost deposit.

     When evidence is equally susceptible of two interpretations,

one of which is consistent with the innocence of the accused, the

trier of fact cannot arbitrarily adopt that interpretation which

incriminates the accused.    See Littlejohn v. Commonwealth, 24 Va.




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App. 401, 411, 482 S.E.2d 853, 858 (1997).   No evidence tended to

prove that Pettway "attempted to conceal her alleged criminal

activity or that she possessed the criminal intent necessary to

sustain her conviction."    Waymack, 4 Va. App. at 550, 358 S.E.2d

at 766.    In six years of her employment at the restaurant,

Pettway had been promoted from counter personnel to assistant

manager.   When the chain of circumstances was not proved to be

unbroken, the absence of proof that Pettway embezzled the funds

leaves only suspicion.
     Accordingly, we reverse the conviction and dismiss the

indictment.

                                          Reversed and dismissed.




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