COURT OF APPEALS OF VIRGINIA 

Present: Judges Frank, Kelsey and Senior Judge Willis 

Argued at Chesapeake, Virginia 

PATRICIA RUTH SIMERSON 

 MEMORANDUM OPINION* BY 

v. Record No. 0637-02-1 JUDGE JERE M. H. WILLIS, JR. 

 MARCH 18, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ACCOMACK COUNTY 

Glen A. Tyler, Judge 

 Patrick A. Robbins for appellant. 

 Paul C. Galanides, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General; 

 Linwood T. Wells, Jr., Assistant Attorney 

General, on brief), for appellee. 

 Patricia Ruth Simerson was convicted in a bench trial of 

embezzlement, in violation of Code § 18.2-111. On appeal, she 

contends the evidence was insufficient to support her 

conviction. We affirm the judgment of the trial court. 

BACKGROUND

 "On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. 

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) 

(citation omitted). 

 

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

designated for publication.
 On May 17, 2001, Simerson worked the evening shift at a 

convenience store owned and operated by J.R. Pikulsky. Pikulsky 

testified that an unexplained $400 cash refund was made that 

night. Security cameras connected to the registers recorded 

Simerson performing that refund transaction at 8:54 p.m. with no 

customer present. Approximately ninety minutes later, she 

removed from the register the paper tape that recorded the 

register's transactions and replaced it with a new one. 

Pikulsky explained that store procedures required Simerson to 

receive management approval for the refund and to place a signed 

receipt for the refund with the other paperwork from the shift. 

She did neither. The evening's paperwork included no receipt 

relating to the refund Simerson performed. The paper cash 

register tape she removed had not been placed with the evening's 

paperwork, as required, and was never recovered. Pikulsky noted 

the register tape did not need to be changed when Simerson 

removed it because it had been changed earlier that evening. He 

explained that the cash drawer would have been over in the 

amount of $400 had the cash reflected in the refund entry not 

been removed from the drawer. Instead, the drawer was short 

approximately $45. 

 Simerson denied taking any money from the cash register. 

When first charged, she admitted to the police that she had 

changed the cash register tape, but denied making any refund 

over $200. However, at trial, she testified that she had 

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performed the $400 refund transaction to correct an earlier 

mistake. She testified that she had earlier rung up an 

erroneous cigarette sale and that the refund entry was to 

correct that error. However, the evidence established that the 

entry to void a transaction was different from the entry 

reflecting a refund, the latter specifically requiring 

management approval and a supporting receipt. 

 The trial court found Simerson's explanation incredible, 

finding it illogical and unbelievable that Simerson would not 

have remembered a $400 mistake when she spoke with the police 

two days after the incident. The court also noted that Simerson 

had changed the secondary register tape unnecessarily and that 

neither the tape nor the transaction receipt had been lodged 

where required. 

Analysis

 Simerson argues that "there are too many weak areas in the 

Commonwealth's case" and that she provided a reasonable 

explanation for performing the transaction. 

 "When a conviction is based upon circumstantial evidence, 

such 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 guilt.'" 

Hollins v. Commonwealth, 19 Va. App. 223, 229, 450 S.E.2d 397, 400 

(1994) (citation omitted). "The Commonwealth need only exclude 

reasonable hypotheses of innocence that flow from the evidence, 

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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). 

 "The credibility of the witnesses and the weight accorded 

the evidence are matters solely for the fact finder who has the 

opportunity to see and hear that evidence as it is presented." 

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 

732 (1995). The trial court believed the Commonwealth's 

witnesses and rejected Simerson's account. 

 The evidence accepted by the trial court proved that 

Simerson performed an apparent refund without actually refunding 

money to a customer. She did so without the required management 

approval. This apparent falsification coupled with the 

disappearance of the money supports the finding that Simerson 

took the money and used this device as a cover. Furthermore, 

she removed and did not preserve as required the record of the 

cash register's transactions, thus attempting to mask what she 

had done. No receipt reflected a cash refund to a customer. 

 The Commonwealth's evidence was competent, not inherently 

incredible, and fully supports Simerson's conviction. 

 For these reasons, we affirm the judgment of the trial 

court. 

Affirmed.

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