COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphr eys and Senior Judge Annunziata Argued at Richmond, Virginia

RASHAD JAMAR CASON MEMORANDUM OPINION * BY v. Record No. 0318-08-2 JUDGE ROSEMARIE ANNUNZIATA FEBRUARY 3, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Richard D. Taylor, Jr., Judge Jessica M. Bulos, Assistant Appellate Defender, for appellant. Joanne V. Frye, Assistant Attorn ey General (Rober t F. McDonnell, Attorney General, on brief), for appellee.

Rashad Jamar Cason was convic ted of grand larceny in viola tion of Code § 18.2-95. On appeal, he contends the evidence wa s insufficient to prove he made unauthorized payments from his employer’s bank account. For the reasons stated below, we a ffirm the co nviction. Background On appeal, we view the evid ence in the light most favora ble to the Comm onwealth, the party prevailing below, and grant to it all reasonab le inferences fairly dedu cible from the evidence. Ragland v. Commonwealth , 16 Va. App. 913, 915, 434 S.E.2d 6 75, 676-77 (1993). In July 2006, Larry Jones, the owner of a flooring business, not iced questionable debits from the bank account he used for his business. Jones determined that from December 2005 to July 2006, debits totaling almost $1 0,000 were paid to companies with which he did not conduct

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - business. Jones had employed Cason from December 2005 to June 2006. Jones did not make the transactions from the bank account, and he testifie d no one else was author ized to use the account. Jones contacted Christy Bowen, a fraud invest igator at the bank. Bowen determined that many of the unauthorized transact ions were made for the benefit of “Rashad Cason” or “Martina Cason.” Martina is the name of Cason’s wife. Commonwealth’s Exhibit 2 s howed numerous withdrawals from Jones’ bank account paid to companies such as T-Mobile or credit card companies where the na mes of Cason or his wife were listed as the beneficiary of the paym ents. In some instances, the re cords indicated that the payments were made by telephone. Bowen testified that tr ansactions from accounts can be made by telephone if the caller provides the proper routing and account numbers. Payroll checks from Jones’ business bank account issued to Cason contained the rou ting and account numbers at the bottom of the checks. Jones testified that, after he received the information from the bank, he had a telephone conversation with Cason about the matter. Jone s testified Cason told him “he knew it was happening and he didn’t stop it.” Cason, a convicted felon, test ified at the trial and denied us ing Jones’ account to pay his own or his wife’s bills. He denied that he told Jones “he knew it was happen ing and he didn’t stop it.” Cason testified that he provided his wife with copies of his payroll checks when he was away from home, stating that the copies were used as evidence of his employme nt when the family was trying to obtain a home. Cason’s wife testified that th ey are raising five children an d she does not work outside the home. She stated that she uses her maiden name and never changed her last name to Cason. Cason’s wife pays the bi lls for the family. She ad mitted receiving copies of Cason’s paycheck, but denied using Jones’ bank account information to pay the family’s bills. Both Cason and his wife- 3 - denied knowledge of any of th e accounts shown on Commonwealth’s Exhibit 2 that reflect the receipt of payments from Jones’ bank account. The trial court specifically found that Cason’s testimony was impeached by his felony conviction and that some of his testimony was “dis ingenuous” and untruthful . The trial court also found the testimony of Ca son’s wife was “totally lacking in cr edibility.” The tr ial court further found that Jones’ bank account was used to pay accounts for Cason’s benefit and that Cason was aware of this use for that purpose. The trial court conv icted Cason of grand larceny. Analysis Larceny is defined as the wrongful or fraudule nt taking of personal goods of some intrinsic value, belonging to another, without his assent, an d with the intention to deprive the owner thereof permanently. Dunlavey v. Commonwealth , 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945). Cason acknowledges that the tr ial court found his testimony an d his wife’s testimony to be incredible. However, he asse rts the Commonwealth’s evidence did not dispel the reasonable hypothesis of innocence that anothe r individual made the unauthoriz ed payments from the account. Cason also contends the trial court erred in re asoning that his knowledge that payments were made from Jones’ bank account fo r his benefit was, in itself, su fficient to support a grand larceny conviction as a principal in the second degree. To be convicted of a crime, suspicion or probability of guilt is insufficient. Rather, the burden is upon the Commonwealth to prove every essential elem ent of the offense beyond a reasonable doubt. Cameron v. Commonwealth , 211 Va. 108, 1 10, 175 S.E.2d 275, 276 (1970). When reviewing the sufficiency of the evidence pr esented at the trial of the offense to prove the elements of the crime, we “presume the judgment of the trial court to be correct” and reverse only if the trial court’s decisi on is “plainly wrong or withou t evidence to support it.” Davis v. Commonwealth , 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also Code § 8.01-680.- 4 - Thus, “the relevant question” on appeal “is wh ether, after viewing the evidence in the light most favorable to the pros ecution, any rational trier of fact could have foun d the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). We are also mindful that circumstantial “evidence ‘is as competent and is entitled to as mu ch weight as direct evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.’” Hollins v. Commonwealth , 19 Va. App. 223, 229, 45 0 S.E.2d 397, 400 (1994) (quoting Coleman v. Commonwealth , 226 Va. 31, 53, 307 S.E.2d 864, 876 (19 83)). “Whether a hypothesis of innocence is reason able is a ques tion of fact, see Cantrell v. Commonwealth , 7 Va. App. 269, 290, 373 S.E. 2d 328, 339 (1988), and a finding by the trial court is binding on appeal unless plainly wrong.” Glasco v. Commonwealth , 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998), aff’d, 257 Va. 433, 513 S.E.2d 137 (1999). There is ample circumstantial evidence in this record from which the tria l court could conclude that Cason made the unauthorized debits or aided and abetted in the commission of the crime as a principal in the second degree. 1 The evidence showed that the unauthorized transactions were paid to acc ounts containing the names Rashad Cason and Martina Cason. In addition, the transactions occurred during th e time period Cason was employed at Jones’

1 To hold the accused accountable as a principal in the second degree, the Commonwealth must prove the ac cused was “present, aiding and abetting, by helping some way in the commission of the crime.” Ramsey v. Commonwealth , 2 Va. App. 265, 269, 343 S.E.2d 465, 468 (1986). It must be shown that the al leged accomplice committed some overt act of assistance or encouragement or that he shared th e criminal intent of the actual perpetrator. Rollston v. Commonwealth , 11 Va. App. 535, 539, 399 S.E.2d 823, 825 (1991). Furthermore, “it is certain that proof that a person is present at the commission of a crime without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same.” Pugliese v. Commonwealth , 16 Va. App. 82, 93-94, 428 S.E.2d 16, 25 (1993) (quoting Foster v. Commonwealth , 179 Va. 96, 100, 18 S.E.2d 314, 316 (1942)).- 5 - business. The evidence further showed that Ca son and his wife, by retaining copies of checks drawn on Jones’ bank account, had ready access to the account and routing numbers required to make transactions from Jones’ account by telep hone. Furthermore, Jones testified, that during the telephone conversation, Cason i ndicated he knew “it” was happening, but he did nothing to stop it. Finally, as Cason acknowledges, the tria l court rejected the testimony of Cason and his wife, including their lack of knowledge about the accounts containing their names to which payments were made from Jones’ bank account. “In its role of judging witness credibility, the fact finder is entitled to disbelie ve the self-serving testimony of th e 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). Therefore, from the evidence presented, the tr ial court could infer that Cason and/or his wife had opened the accounts to which the paym ents were made from Jones’ business bank account. The trial court could al so infer that Cason and/or hi s wife made the unauthorized transactions to these accounts fr om Jones’ business bank account, using the routing and account numbers obtained from their retained copies of Cason’s paychecks. Fina lly, even if the trial court concluded that Cason was not making the act ual transactions, Cason, himself, established that he was aware that his wife was doing so an d that he failed to oppose the conduct. When Cason’s failure to disapprove or oppose his wife ’s conduct is viewed together with the other circumstances in the case, the trier of fact coul d reasonably conclude that Cason “‘assented . . . [and] lent . . . his countenance and approval [to he r conduct] . . . thereby aiding and abetting [the commission of the crime].’” Pugliese , 16 Va. App. at 94, 428 S.E.2d at 25 (quoting Foster , 179 Va. at 100, 18 S.E.2d at 316). Cason’s contention that the Commonwealth failed to exclude “every reasonable hypothesis of innocence,” see Tucker v. Commonwealth , 18 Va. App. 141, 143, 442 S.E.2d 419,- 6 - 421 (1994), is without merit. No evidence was presented showing that someone other than Cason or his wife accessed Jones’ bank account and used it for the benefit of Ca son. Inde ed, Jones acknowledged that he was the only person authorized to use the account. The hypotheses of innocence upon which a defendant relies must fl ow from the evidence and not result from speculation by the parties or the court. See Hamilton v. Commonwealth , 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). Accordingly, whether Cason made the unauthor ized transactions hi mself or supplied the necessary information to his wife for her to c onduct the transactions, th e evidence was sufficient to prove beyond a reasonable doubt that Cason co mmitted grand larceny as either a principal in the first or second degree. For these reasons, we affirm Cason’s convic tion. However, because the sentencing order mistakenly states that Cason was found guilty of embezzlement in violation of Code § 18.2-95, this matter is remanded to the trial court for the sole purpose of correcting that clerical error to reflect that Cason was convicted of grand larceny under Code § 18.2-95. Affirmed.