COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Humphreys 

Argued at Richmond, Virginia 

TONYA MICHELLE CLARY 

 MEMORANDUM OPINION* BY 

v. Record No. 3010-00-2 JUDGE ROSEMARIE ANNUNZIATA 

 MAY 28, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 Robert P. Geary for appellant. 

 Margaret W. Reed, Assistant Attorney General, 

(Randolph A. Beales, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Tonya Michelle Clary was convicted in a bench trial of 

forgery and uttering, in violation of Code § 18.2-172, and grand 

larceny of the proceeds, in violation of Code § 18.2-95. The 

trial court suspended imposition of sentence on the convictions 

on the condition that she keep the peace and be of good behavior 

for three years. Clary appeals all three convictions on the 

ground that the evidence failed to prove her identity as the 

perpetrator. For the reasons that follow, we affirm. 

Analysis

 When the sufficiency of the evidence is challenged on 

appeal, "[w]e view the evidence in the light most favorable to 

the Commonwealth, granting to it all reasonable inferences 
fairly deducible from the evidence." Cooper v. Commonwealth, 31 

Va. App. 643, 646, 525 S.E.2d 72, 73 (2000). The credibility of 

the witnesses and the weight of the evidence are matters to be 

determined solely by the trier of fact. Swanson v. 

Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d 258, 259 

(1989). Accordingly, we "discard the evidence of the accused in 

conflict with that of the Commonwealth, and regard as true all 

the credible evidence favorable to the Commonwealth and all fair 

inferences that may be drawn" from the credible evidence. 

Watkins v. Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 

866 (1998). Moreover, we view the evidence presented at trial 

in its entirety. See Peoples v. Commonwealth, 147 Va. 692, 704, 

137 S.E. 603, 606 (1927) ("[I]t frequently happens that the 

combined force of many concurrent and related circumstances, 

each insufficient in itself, may lead a reasonable mind 

irresistibly to a conclusion." (citations omitted)); Hope v. 

Commonwealth, 10 Va. App. 381, 386, 392 S.E.2d 830, 833 (1990) 

(en banc). 

 The decision of the trial court will not be disturbed 

unless plainly wrong or without evidence to support it. McGee 

v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 

(1997) (en banc). "Circumstantial evidence is sufficient to 

prove guilt beyond a reasonable doubt so long as 'all necessary 

circumstances proved . . . [are] consistent with guilt and 

inconsistent with innocence and exclude every reasonable 

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hypothesis of innocence.'" McNair v. Commonwealth, 31 Va. App. 

76, 86, 521 S.E.2d 303, 308 (1999) (quoting Bishop v. 

Commonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984)). 

However, "the Commonwealth need only exclude reasonable 

hypotheses 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). 

 Viewed in light of these well established principles, the 

evidence proved beyond a reasonable doubt that Tonya Clary was 

the criminal agent of the charged offense. On May 22, 2000, 

check number 1466 from the account of Doris Pike was cashed at 

the Willow Lawn branch of BB&T. "Tonya Clary" was the payee of 

the check, and the check was endorsed with the signature "Tonya 

Clary" and her social security number. The teller noted that 

the person who cashed the check presented positive 

identification as "Tonya Clary." The trial court verified that 

the social security number on the check was the same social 

security number listed as Clary's on her arrest warrant. 

 Furthermore, only Clary had access to Pike's checkbook 

during the time the check was stolen. The evidence proved that 

the check was stolen on May 11 or May 12 and that no other nurse 

worked for Pike on those days. First, Clary did not argue on 

brief that the check was stolen before May 11 or after May 22. 

We, therefore, need only address the period reflected in the 

argument made. See Bennett v. Commonwealth, 35 Va. App. 442, 

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452, 546 S.E.2d 209, 213 (2001) (declining to consider issue not 

addressed in appellant's brief). Moreover, her attorney's 

statement at trial that "you have a check that's stolen between 

5/11 and 5/22" establishes that fact on appeal. See McNallen v. 

McNallen, 62 F.3d 619, 625 (4th Cir. 1995) (holding that 

defendant's counsel's statement at trial, "I certainly don't 

dispute that McNallen's actions were willful," a judicial 

admission, established the fact of willfulness in the 

litigation); West v. Anderson, 186 Va. 554, 563, 42 S.E.2d 876, 

880 (1947) (refusing to consider, on appeal, plaintiff's claimed 

value of land taken from him where he judicially admitted to a 

value in his grounds of defense, noting that "one cannot . . . 

ask that his case be made stronger than he makes it, when his 

case depends on facts within his own knowledge"). Second, Pike 

provided testimony that showed that the check could not have 

been stolen after May 12.1 Thus, the trial court reasonably 

inferred that the check was stolen on May 11 or May 12. 

 It is undisputed that no other nurse worked for Pike's 

mother on May 11 or May 12. Clary, however, worked as a 

substitute nurse for Pike's mother on May 11, 2000. 

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 At trial, Pike explained that she wrote check 1463 from 

her checking account on May 8 and checks 1464, 1465, and 1467 on 

May 12. Because she always wrote her checks sequentially and 

would have written check 1466 if it had been in her checkbook on 

that date, Pike concluded that check 1466, the stolen check, was 

not in her checkbook on May 12. 

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Consequently, only Clary had access to the checkbook during the 

period check 1466 was stolen. 

 Accordingly, Clary's hypothesis that "one of the other four 

or five nurse's aides who worked at the Pike residence from May 

11th to May 22nd [could have been the criminal agent]" does not 

reasonably flow from the evidence, and the Commonwealth does not 

have the burden of excluding it. See Cantrell v. Commonwealth, 

7 Va. App. 269, 290, 373 S.E. 328, 339 (1988) (noting that the 

reasonableness of a hypothesis of innocence is a factual 

finding, which is binding on appeal unless plainly wrong); 

Hamilton, 16 Va. App. at 755, 433 S.E.2d at 29. Moreover, the 

evidence as a whole proved Clary was the criminal agent. See

Peoples, 147 Va. at 704, 137 S.E. at 606; Hope, 10 Va. App. at 

386, 392 S.E.2d at 833. Therefore, we affirm Clary's 

convictions. 

Affirmed. 

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Benton, J., dissenting. 

 The evidence failed to prove beyond a reasonable doubt that 

appellant was the person who stole the check, forged the check, 

or uttered the check. Thus, I would reverse the convictions for 

insufficiency of the evidence. 

 "[T]he Due Process Clause protects the accused against 

conviction except upon proof beyond a reasonable doubt of every 

fact necessary to constitute the crime with which he is 

charged." In re Winship, 397 U.S. 358, 364 (1970). "Where 

inferences are relied upon to establish guilt, they must point 

to guilt so clearly that any other conclusion would be 

inconsistent therewith." Dotson v. Commonwealth, 171 Va. 514, 

518, 199 S.E. 471, 473 (1938). Thus, the following principles 

are well established: 

 Proof by circumstantial evidence "is not 

sufficient . . . if it engenders only a 

suspicion or even a probability of guilt. 

Conviction cannot rest upon conjecture." 

"'[A]ll necessary circumstances proved must 

be consistent with guilt and inconsistent 

with innocence and exclude every reasonable 

hypothesis of innocence.'" "When, from the 

circumstantial evidence, 'it is just as 

likely, if not more likely,' that a 

'reasonable hypothesis of innocence' 

explains the accused's conduct, the evidence 

cannot be said to rise to the level of proof 

beyond a reasonable doubt." 

Betancourt v. Commonwealth, 26 Va. App. 363, 373, 494 S.E.2d 

873, 878 (1998) (citations omitted). 

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 On May 12, when Doris Pike wrote checks numbered 1464, 

1465, and 1467, she did not write check 1466 and apparently did 

not realize that it was not in the expected sequence in her 

checkbook. Except for proof that check 1466 was cashed May 22, 

and, thus, was taken before that date, no evidence proved when 

the check was removed from Pike's checkbook. Pike first learned 

on June 7, when she received her bank statement, that the check 

had been taken from her checkbook and cashed. Furthermore, the 

evidence proved that at least five nursing aides from the same 

nursing service were in Pike's house during May prior to the 

date the check was negotiated at the bank. Even if we infer 

that check 1466 was stolen by May 12, which was the day Pike 

wrote checks out of sequence, Pike testified that other nursing 

aides from the same nursing service were in her house prior to 

that date. 

 It is true that in the motion to strike at the close of the 

evidence, appellant's attorney argued that the evidence showed 

"you have a check that's stolen between 5/11 and 5/22 of this 

year; you know its 5/22 because that's the date it was 

transacted at [the bank]." That argument, however, was not a 

stipulation of a fact to be proved; it was apparently 

appellant's attorney's supposition about the possible interval 

from the time the check could have been removed through the date 

of the negotiation of the check. Appellant's brief on appeal, 

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likewise, contains no stipulation and merely references that 

argument as an incident of the trial. 

The giving by the accused of an unclear or 

unreasonable . . . explanation . . . are 

matters for the jury to consider, but they 

do not shift from the Commonwealth the 

ultimate burden of proving by the facts or 

the circumstances, or both, that beyond all 

reasonable doubt the defendant committed the 

crime charged against him. 

Smith v. Commonwealth, 192 Va. 453, 461-62, 65 S.E.2d 528, 533 

(1951). The evidence proved with certainty only the date Pike 

wrote the check out of sequence and the date the check was 

negotiated. From the evidence in the record, the trial judge 

could only have speculated who stole the check and whether the 

check was stolen in May, or April, or any month prior to that 

time. 

 The evidence proved further that on May 22, 2001 a person 

went to the same branch banking office that Pike normally uses 

and cashed check 1466, which was drawn in the amount of $200. 

The check, which was introduced in evidence, shows that the name 

of the payee was "Tonya Clary," that the check was endorsed 

"Tonya Clary," and that below the endorser's signature was a 

social security number. Pike testified that she did not write 

the check, that the payor's signature is not her writing, and 

that she did not authorize anyone to write the check. 

 The bank teller who cashed the check did not testify. The 

only evidence in the record concerning the circumstances of the 

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negotiation of the check at the bank's "drive-thru" window was 

the following testimony from the bank's operations manager: 

Q: . . . . Just tell me what's on the 

check. 

A: What's on the check? Um, identification 

that the teller received from the person who 

was cashing the check. . . . 

 Identification from the person who was 

cashing the check, like a driver's license 

or whatever type of identification they used 

to cash – to verify that that is them and 

that's what the teller goes by to cash the 

check. 

Q: And that is the payee? 

A: Yes. 

Q: In this case, a Tonya Clary? 

A: Yes. 

 No evidence proved that any writing on the check was 

appellant's handwriting or that the person used valid 

identification, if any, when cashing the check. The record 

contains no photographs identifying the person who cashed the 

check at the bank. Thus, no evidence proved that appellant 

forged the check or was, in fact, the person who negotiated the 

check at the bank. From the evidence in the record the trial 

judge could only have speculated who stole the check, who forged 

the check, or who negotiated the check. 

 Simply put, the evidence relied upon to support the 

convictions is that a check was stolen from Pike's checkbook on 

a date uncertain, that Tonya Clary worked in Pike's home on May 

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11 as a nursing aide, and that a person cashed Pike's check on 

May 22, using the name Tonya Clary. The principle is well 

established that evidence is not sufficient to sustain a 

conviction merely because it is consistent with guilt; it also 

"must be consistent only with the guilt of the accused." Moore 

v. Commonwealth, 254 Va. 184, 189, 491 S.E.2d 739, 742 (1997). 

"If the facts and circumstances proved are as consistent with 

innocence as with guilt, then the evidence is not sufficient to 

sustain the verdict. Suspicion is not enough; conjecture is not 

proof." Stoots v. Commonwealth, 192 Va. 857, 865, 66 S.E.2d 

866, 871 (1951). 

 Because this evidence raises only a suspicion that 

appellant stole the check and then cashed it, I would reverse 

the convictions. 

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