                     COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia


MELINDA MAY MENDEZ
                                           MEMORANDUM OPINION * BY
v.   Record No. 0946-99-2               JUDGE JERE M. H. WILLIS, JR.
                                                JULY 18, 2000
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                   Paul M. Peatross, Jr., Judge

          Frank K. Friedman (Donald D. Long; Woods,
          Rogers & Hazlegrove, P.L.C., on briefs), for
          appellant.

          Stephen R. McCullough, Assistant Attorney
          General (Mark L. Earley, Attorney General, on
          brief), for appellee.


     On appeal from her conviction of grand larceny, in

violation of Code § 18.2-95, Melinda May Mendez contends that

the evidence was insufficient to support her conviction.    We

affirm the judgment of the trial court.

               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.


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).

     Mr. and Mrs. Ayad Al-Hamdani employed Mendez on Wednesdays

and Thursdays for six weeks as a maid.    At noon on Thursday,

May 14, 1998, Mendez arrived at the Al-Hamdanis' home just as

Mrs. Al-Hamdani was leaving to run errands.    When Mrs.

Al-Hamdani returned at 2:30 p.m., Mendez was gone.    She had not

completed her work, and cleaning supplies were left in the

hallway.   Mrs. Al-Hamdani's desk was in disarray.

     When Mr. Al-Hamdani arrived home, he checked his desk and

found missing a black pouch containing $4,200 in cash.     He

testified that he had seen the pouch containing the money in the

desk drawer within forty-eight hours prior to May 14.      Only he

knew of the presence of the cash, because he was saving it to

buy a birthday present for his wife.

     Mrs. Al-Hamdani attempted to call Mendez.    Although she

called repeatedly, she received no answer.    The police were also

unable to locate Mendez.

     Mendez denied taking the money.     She testified that she had

left the Al-Hamdanis' home about 1:45 p.m. because she was ill

and had left a note explaining her early departure.    However,

the Al-Hamdanis found no note.

     From the time Mr. Al-Hamdani last saw the money to the

discovery of the loss, only family members and Mendez had been

in the home.   The house was usually locked when the family was

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away, the only exception being the time from Mendez's departure

to Mrs. Al-Hamdani's return on May 14.    The Al-Hamdanis'

twelve-year-old daughter did not have friends in during the

week.    There was no evidence of forced entry.

        Mendez contends that the Commonwealth failed to prove her

guilt, because the evidence failed to exclude every reasonable

hypothesis consistent with innocence.     See Vaughan v.

Commonwealth, 7 Va. App. 665, 675, 376 S.E.2d 801, 807 (1989).

She argues that another person could have come into the house

and taken the money before or after she left, that workmen were

in the neighborhood that week, and that a friend of the family

could have entered and taken the money.    None of these

hypotheses is supported by the evidence.    Only forty-five

minutes elapsed between Mendez's departure and Mrs. Al-Hamdani's

return.    Nothing in the house was disturbed except Mrs.

Al-Hamdani's desk.

        Mendez explained that she was ill, that she left the

Al-Hamdanis' home because of her illness, and that she did not

answer her phone because she was sleeping.    The trial court,

however, was not required to accept Mendez's explanation of the

events.    "In its role of judging witness credibility, the [trial

court] is entitled to disbelieve the self-serving testimony of

the accused and to conclude that the accused is lying to conceal

[her] guilt."     Marable v. Commonwealth, 27 Va. App. 505, 509-10,

500 S.E.2d 233, 235 (1998).    In judging her credibility, the

                                 - 3 -
trial court was entitled to consider the Commonwealth's

impeachment evidence, disclosing that Mendez attended an aunt's

birthday party on the night of May 14, that her behavior on May

14 contrasted with her usual routine, and that she had been

convicted of seven felonies and a misdemeanor involving lying,

cheating, or stealing.

     The dissent argues that this case is controlled by Simmons

v. Commonwealth, 219 Va. 181, 247 S.E.2d 359 (1978).    Simmons

was the night operator of his employer's service station,

running the station between 6:00 p.m. and its 9:00 p.m. closing.

Two daytime employees also had keys to the station.    The

employer left the station at 5:30 p.m. on the evening in

question and did not return until 7:30 a.m. the next morning,

when he found the station unlocked and unattended with sundry

items of cash and merchandise missing.   Simmons could not be

located.    Reversing Simmons' conviction for embezzlement, the

Supreme Court held that the evidence proved only that he had the

opportunity to steal the missing items and that he apparently

fled, and was thus insufficient to prove that he was the thief.

     This case is distinguishable from Simmons.    In Simmons, the

evidence did not prove whether Simmons had closed and locked the

station properly.   It did not prove how the station came to be

unlocked.   It established an all night window from 9:00 p.m. to

7:30 a.m. when a thief other than Simmons could have gained

access.    It established that two other employees had keys.

                                - 4 -
     In this case, the evidence, taken in the light most

favorable to the Commonwealth, proved that only members of the

family and Mendez were in the house between the time Mr.

Al-Hamdani last saw the money and the time the loss was

discovered.   The time from Mrs. Al-Hamdani's departure to her

return was brief, and during at least most of that time, with

the exception of only forty-five minutes, Mendez was on the

premises.   There was no evidence that anyone else entered the

house during that time.   Thus, the evidence in this case not

only proved that Mendez had the opportunity to steal the money

and thereafter behaved furtively and in a manner suggestive of

guilt, but also excluded anyone else as a possible thief.

     The judgment of the trial court is affirmed.

                                                          Affirmed.




                               - 5 -
Elder, J., dissenting.

        Because I believe the evidence fails to exclude all

reasonable hypotheses of innocence flowing from it, I would

reverse the conviction of Mendez (appellant).    Therefore, I

respectfully dissent.

        No direct evidence linked appellant to the crime or even

the desk from which the money was taken.    No one saw her take

the money, and her fingerprints were not recovered from the

desk.

        Where the evidence is entirely circumstantial, "all

necessary circumstances proved must be consistent with guilt and

inconsistent with innocence and must exclude every reasonable

hypothesis of innocence. . . .    The circumstances of motive,

time, place, means, and conduct must all concur to form an

unbroken chain which links the defendant to the crime beyond a

reasonable doubt."     Bishop v. Commonwealth, 227 Va. 164, 169,

313 S.E.2d 390, 393 (1984).

             [I]f facts are susceptible to two different
             interpretations, "one of which is consistent
             with the innocence of the accused, the [fact
             finder] cannot arbitrarily adopt the
             interpretation which incriminates him."
             Instead, "[t]he interpretation more
             favorable to the accused should be adopted
             unless it is untenable under all the facts
             and circumstances of the case."

Varker v. Commonwealth, 14 Va. App. 445, 447, 417 S.E.2d 7, 8

(1992) (quoting Williams v. Commonwealth, 193 Va. 764, 772, 71

S.E.2d 73, 77 (1952)).

                                 - 6 -
      Here, the circumstantial evidence, viewed in the light most

favorable to the Commonwealth, established that Mr. Al-Hamdani

had last seen the pouch containing the money some forty-eight

hours before he discovered it missing on the afternoon of May

14.   The majority states that "[t]he house was always locked

when the family was away, the only exception being the time from

[appellant's] departure to Mrs. Al-Hamdani's return on May 14."

However, Mrs. Al-Hamdani testified merely that the house was

"usually . . . locked," and said that, on May 14, she had the

front door open . . . with a little stop" before appellant came

to work that day.   Although appellant arrived before Mrs.

Al-Hamdani departed, the front door was unlocked when Mrs.

Al-Hamdani returned about two-and-one-half hours later;

appellant was not present at that time; and the house had been

unlocked and unoccupied for at least forty-five minutes.      Mrs.

Al-Hamdani testified that no one other than she, Mr. Al-Hamdani,

her twelve-year-old daughter, infant son, and appellant had been

in the house that week.    However, Mrs. Al-Hamdani did not

testify that she had been home that entire time and, as outlined

above, the evidence established that, on May 14, the front door

was unlocked while no one was at home.

      Other evidence left open the reasonable hypothesis that the

money could have been taken by someone with access to the house

even when it was locked.   Mrs. Al-Hamdani's twelve-year-old

daughter resided in the house but did not testify, leaving the

                                - 7 -
reasonable hypothesis that she could have taken the money.       The

evidence also established that the Al-Hamdanis' neighbors had

keys to the house and could have entered even at a time when the

door was locked.

     The trial court focused on the credibility of appellant's

statements and whether she left a note explaining her hasty

departure on May 14.    Although the trial court clearly was

entitled to disregard appellant's testimony about the note, this

rejection did not constitute affirmative evidence of appellant's

guilt.   See Tucker v. Commonwealth, 18 Va. App. 141, 144, 442

S.E.2d 419, 421 (1994).    Appellant's failure to return to work,

respond to telephone calls, or collect her pay for the portion

of the week she did work was suspicious but was not affirmative

evidence of guilt.    The remaining evidence, viewed in the light

most favorable to the Commonwealth, did not exclude the

reasonable hypothesis that Mrs. Al-Hamdani's daughter, the

neighbors with the keys, or someone other than appellant entered

the house and took the pouch and money in the forty-eight hours

since Mr. Al-Hamdani had last seen it.

     The facts here closely resemble those in Simmons v.

Commonwealth, 219 Va. 181, 247 S.E.2d 359 (1978), in which the

Court held the evidence insufficient as a matter of law to prove

criminal agency.     See id. at 183, 247 S.E.2d at 360.   In

Simmons, the defendant was a gas station attendant employed to

work the 6:00 p.m.-to-9:00 p.m. shift.     See id. at 182, 247

                                 - 8 -
S.E.2d at 359.   Two other employees worked from 7:00 a.m. to

6:00 p.m. and had keys to the station.     See id.     On the evening

in question, the owner departed the station at 5:30 p.m. and

received no answer when he telephoned the station at 9:05 p.m.

that evening.    See id.   When the owner arrived the next morning,

he discovered that the station's doors were unlocked and that

$100 in cash and various tools and merchandise were missing, but

he admitted that he "had not taken a physical inventory for

several days."     Id. at 182, 247 S.E.2d at 359-60.    Although the

defendant, who had worked six days prior to the theft, was owed

$70 in wages, the police officer investigating the theft was

unable to locate him for a period of at least six months.        See

id. at 182, 247 S.E.2d at 360.

     The Court held, "[a]ll that reasonably may be inferred from

the evidence is that [the defendant] had the opportunity to

commit the crime and that he fled at a time when wages were

payable to him."     Id. at 183, 247 S.E.2d at 360.    This

"opportunity and subsequent flight, while sufficient to arouse

strong suspicion, [were] not themselves sufficient to support

[the defendant's] conviction."     Id. (emphasis added).

Therefore, assuming appellant's failure to report to work or to

answer her phone could be considered flight, even this evidence

was insufficient to prove she took the money.




                                 - 9 -
     Therefore, I would hold the circumstantial evidence does

not exclude all reasonable hypotheses of appellant's innocence,

and I respectfully dissent.




                              - 10 -
