COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Fran k and Humphreys Argued at Ches apeake, Virginia

STEPHEN WAYN E FERGUSON MEMORANDUM OPINION * BY v. Record No. 1667-00-1 JUDGE ROBERT P. FRANK JULY 24, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF SOUTHAMPTON COUNTY E. Everett Ba gnell, Judge Steven D. Benjamin (Betty Layne DesPortes; Benjamin & DesPortes, P.C., on briefs), for appellant. Richard B. Smith, Se nior Assistan t Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Stephen Wayne Fe rguson (appellant) appe als his conv ictions of six counts of embezzlement and two counts of conspiracy. On appeal, he contends the trial court erred in: 1) finding the evidence sufficient to support his co nvictions for embezzlement and conspiracy; 2) finding the evid ence sufficient to prove that a deprivation of property occurred; and 3) denying hi s motion to strike the multiple co nvictions under the single larc eny doctrine. Finding no error, we affi rm appellant' s convictions.I. BACKGROUND Chris Pope worked at the So uthside Gin (the company) in Southampton fr om 1991 to 1998 and bega n marketing co tton for the company in 1996. Ap pellant and Sam Pope, Chris's father, were equal partners in the company until 19 98, when the ownership changed. At that ti me, one-third of the company wa s purchased by Old Dominion Fibers, a corporation owned by Jeffre y Pope, Mark Pope and Chris Pope. Appellant and Sa m Pope each ha d a one-third ownership in terest in the company. During the period between 1996 and 1997 , the comp any built another gin in Wakefiel d, costing between $3 .1 million and $3.2 million. The co mpany also built an oil company. Cost overruns were covered by funds due to farmers for thei r cotton. Farmers, or cotton producers, would often leav e money on deposit with the company, receiving inte rest on their money, subject to demand for payment. Chris Pope became th e Southampton gi n manager in summer 1997, when the company's debt was approximat ely $1 million. Due to the financial cond ition of the gin, its government license to store cotton was revoked and this action was made public. Chris Pope was unable to refi nance the gin's de bt in summer 1997. He also was unab le to reduce the comp any's short- term debt, which was draini ng the company' s cash flow. When farmers demand ed payment on money they were due, the business was able to me et the demand until la te 1997, just before

- 2 -the ginning season . However, there was a run on the demand money after notice of the lost license was made public. A $620,000 loan from Sam Pope met the farm ers' demands up to the 1997 ginning season . Still, $500,000 remained due to the farmers, which the comp any could no t cover. Appellant was aware of the company's financial pl ight. He had no additional funds to inve st in the comp any. He had financial prob lems with a hog farm he independentl y owned. Appellant also knew of the $1.8 million dollar debt to the farmers. Chris Pope told appell ant that he was negotiating loan refinancing withsome banks and that if the company could financially su rvive the 1997 season, the banks might re finance. In this financial se tting, Chris Pope de cided he needed to divert cotton from th e farmers, sell the co tton bales, and use those proceeds to create a fund to pay the farmers' demands for their money. Chris Pope's plan wa s to randomly tag a ba le of cotton from a module after the ginnin g process was co mpleted. The yellow-tagged bale, so selected, wo uld not be entered into the company's computer and the farmer would not be compensa ted for that bale. The bale would then be sold separately. Chris Pope stated he first discusse d his skimming scheme with the gin's manager, Tom Riddick, prior to the ginning season in September 1997. He stated that he did no t tell Riddick what he was going to do wi th the money. When Riddick agre ed to the plan,
- 3 -Chris Pope then told appellant ab out his plan to make extra money for the company. Specifically, Ch ris Pope testified he to ld appellant, "That I thought we needed to randomly take a bale off a mo dule, not class it and I would look after selling it so the mo ney would be available if we needed it." Chris Pope said that appellant responded, "We needed to make sure that we di d what we had to do to make sure the company survived." Th ere was no discussion as to the details or mech anics of the plan. Chris Pope's plan commenced with the ra ndom selection of modules. One of its bales would then be tagged with a yellow warehouse tag carr ying a number that alwa ys began with "106." These "106" bales would not be scanned in to the computer and, thus, not report ed to the United States Department of Agriculture. The company's Mexi can labor force wa s told that th ese bales were not being classed because they were going to a specific mill. During the 1997 season, 911 bales were divertedby this scheme and the funds were paid to Old Dominion Fibers. The "106" bales were not shown on any farm er's payment reports nor were the farmers paid for those bales. Chris Pope and Ridd ick kept a separate handwritten list of the "106" bale s. The total va lue of the "106" bales in 1997 was $180 ,000. Chris Pope furt her testifie d that he would not have "skimm ed" the bales if appe llant had no t agreed. Riddick testifie d that Chris Pope told him about hi s plan to help the company's cashflow. Riddick clai med that Chris Pope

- 4 -assured him the fa rmers would be pa id. Chris Pope told Riddick he had talked his scheme ov er with appellant. Riddick test ified that on the same day he ta lked to Chris Pope, appellant asked Riddick if Pope had told him abou t what Pope had planned. Riddick testified, I said yes, sir, he to ld me about, you know, marking the modules and pulling the bales off to the side. My firs t question to Steve [appellant] was was this someth ing you -- you know, you-all re ally considerin g doing this. I was concerned, you know, abou t what they were doing. And Stev e made the comment it was something we have to do to survive. Riddick then asked appellant if his part ner, Sam Pope, knew "what was going on ." Appellant re sponded that at that time they felt that Sam Pope di d not need to know. Appellan t stated that Chris Pope would take ca re of the mone y and who neededto know in the office. Appellant told Ri ddick not to wo rry about those

matters. Appellant had overall responsi bility for the gin's Mexican labor force, who were entitled to a bonus based on the number of bales ginned. Riddick testified appell ant was at the gin almost every day in 1997. The workers beca me concerned in 1997 when they noticed the "106" bales were not being scan ned into the computer. Chris Pope told appe llant of these concer ns as did Evaristo Ambriz, the leader of the Mexica n work force. In early December 1997, Ambr iz expressed co ncern about the "106" bales to Riddick and appellant. When he met with them at

- 5 -the gin, Ambriz direct ed his comments to appellant wh o had the final decision onthe amount of the bonuses. Wh en Ambriz told appellant to make sure the "unlis ted bales" were included in the bonuses, appellant repl ied, "They've been taken care of," and mentioned the numb er of bales invo lved, which Ambriz believed was around 930. A number of the gi n's employees knew that th e "106" bales were handled differentl y. Alex Delgado test ified that in loading bales for shipme nt from the wareho use, he would be provided with a computer printout on the normal bales but wa s given a pa per list of "106" bales to be placed on a particular load. John Lopez was a fork lift operator at th e Southampto n gin in 1997. He testifie d that the bales on the do ck usually were tagged in sequence. He stat ed there was a series of "106" bales that were not scanned into the computer, al though the othe r bales were entered. Lopez weighed the "106" bales and kept a record of each bale's number and weight. This list was ei ther picked up or Lopez delivered it to th e office. Because part of Lopez's pay came from a bonus on the bales pr oduced, he became conc erned that the "106" bales would be exclud ed from his count. Prior to the 1998 season, Chris Pope told Riddick and appellant it again wo uld be necessary to "do the same thing" because the company's financial situ ation had not improved. Pope, however, changed the sy stem by placin g every thirteen th tag in a box of bale tags withan out-of-sequence number, and the bales
- 6 -would be scanned in the computer. These bales were to be taken to the Wakefield faci lity, owned by Je ff Pope, Chris Pope and Mark Pope. Appellant again responded that Pope needed to do whatever was necessary fo r the company to survive. In 1998, a "312" ta g sequence was used for bales re moved out of sequence from module s, marked with an "X" and placed separately in the warehouse. Delgado stated that he and JohnLopez "stuffed" the tag boxes withthe out-of-seque nce tags from a list given to them by Ch ris Pope. Riddick stated that in July or August 1998, Chris Pope, Sam Pope, Riddick and appellant met at the gin. Appell ant presided at the meeting. Ap pellant asked Chri s Pope "about ho w things were coming along with um –-- you know, hi s plan that he had talked about." Chris Pope to ld appellant and the ot hers more details of the plan, specif ically tagging the thir teenth bale, using the Wakefield facili ty and entering the ba les into the computer. When Cecil Byrum's cotton was processed at the Wakefield gin in 1998, Ambriz noti ced that every thirte enth bale had an out-of-sequenc e tag number. Although th e computer showed that sixty bales had be en processed, sixty-six bales had actu ally been ginned. Appellant denied any knowledge of any pl an to deprive the farmers of any cotton or revenue. Appellant testif ied he became concerned about th e gin's operatio n in 1996 and also concerned about the Wakefiel d gin to be buil t in 1996 or ea rly 1997. The

- 7 -general manage r, Flippin, advise d appellant in ea rly 1997 about a lot of cost over runs and that the oil mi ll and the Wa kefield gin were costing a lot more than anticipated. In late summer 1997 , appellant spok e with Chris and Sam Pope about the gin's fi nancial conditio n. They oweda tremendous amount of money and were in serious trouble. Ap pellant te stified he talked about cons ulting a bankruptcy lawyer, but Sam Pope refused to discuss bank ruptcy when he saw th ey owed the farmers $1.8 million. At a meeting the next week, however, Sam Pope agreed to put up $5 00,000 and said he would try to get refinancing. Appellant testif ied he had a meeting wi th Chris Pope during which Pope stated he was planning onnot "classing" some cotton because it would save the farmers mone y. Appellant was assured it was legal to sell un classed cotton. "Classing" cotton is a process in which a sample of cotton is sent to a federal government facility in South Carolina for cl assification . By not "classing" it, the cott on could be marketed quicker and would give the business a "competi tive edge." Appellan t denied any knowledge of skimming or any agreement to do so. Appellant admitt ed meeting with Riddic k and Ambriz over the workers' concerns that they might not get bo nuses on the "non-classed bales." Riddick showed Ambriz several sheets that listed the regular bales an d the non-clas sed bales.

- 8 -Appellant denied that there was a meeting in 1998 to discuss a plan for that ginning year. He furt her denied ever stating that Chris Pope had to do whatever was necessar y for the co mpany to survive. Appellant acknow ledged being aware that farmers were leaving money with the gin, whic h would have to be repa id upon demand. He knew the gin could no t meet all the demand s and would have to close without addi tional funds. Appellan t acknowledgedthat the idea was just to surv ive the 1997 season an d hope for refinancing in 1998. Appellant al so acknowledged that he personally had financial diffic ulties. He admitt ed he possibly wo uld be broke if the gin did not su rvive. He had no more funds to put into the gin. To summarize, appe llant testified he did not know the bales were not being shown onthe computer, that skimming was occurring, and that the bales were not accounted for to the farmer s. His only knowledge was that certain bales were not being "classed" by the United States Depa rtment of Agriculture. Appellant was co nvicted by the trial co urt of six counts of embezzlement and two co unts of conspiracy. II. ANALYSIS Appellant first contends that th e evidence was not sufficient to convict him of embezzle ment and cons piracy. "Where the sufficie ncy of the evidence is challenged after co nviction, it is our duty to consider it in the light most
- 9 -favorable to the Commonwe alth and give it all reasonable inferences fairly deducible therefrom. We shouldaffirm the judgment unless it appear s from the evid ence that the judgment is plai nly wrong or wi thout evidence to support it." Higginbotham v. Commonwealth , 216 Va. 349, 35 2, 218 S.E.2d 534, 537 (1975). More over, "[i]f there is evidence to support the co nviction, an appellate cour t is not permitted to substitute its own judg ment for that of the finder of fact , even if the appellate court might have reached a di fferent conc lusion." Commonwealth v. Presley , 256 Va. 465, 466, 507 S.E.2d 72 , 72 (1998). Furthermore, "[t]he credibility of a witness and the inferences to be drawn from proven facts are matter s solely for the fact finder's determination. In its role of judging witness credibility, th e fact finder is entitled to disbel ieve the self-serving testimony of the accused and to conclude that the accused is lying to conceal hi s guilt." Marable v. Commonwealth , 27 Va. App. 505, 509-10, 500 S.E.2d233, 235 (199 8) (citations omitted). Snow v. Co mmonwealth , 33 Va. App. 766, 77 4, 537 S.E.2d 6, 10 (2000). "To establish the statutory crim e of embezz lement, the Commonwealth must prove that the accused wrongfully appropriated to [his] use or benefi t, with the intent to deprive the owner thereof, the property entrusted to [him] by virtue of [his] employment or office." Nestle v. Commonwealth , 22 Va. App. 336, 341, 470 S.E.2d 133, 136 (1996) (citing Waymack v. Commonwealth , 4 Va. App. 547, 549, 358 S. E.2d 765, 76 6 (1987)). The Commonwealth is not required to pr ove that the accused intended to pe rmanently depriv e the owner of the property.

- 10 -Ketchum v. Commonwealth , 12 Va. App. 258, 261, 403 S.E.2d 382, 383 (1991) (citing Evans v. Commonwealth , 226 Va. 292, 308 S.E.2d 126 (1983)). "[P] roperty is converted wh en there has been an '[u]nauthorized and wrongful exercise of dominion and control over another's person al property, to exclusion of or incons istent with rights of th e owner.'" Id. (quoting Evans , 226 Va. at 297, 308 S.E.2d at 129). Proving intent by direct evidence often is impossible. See Servis v. Commonwealth , 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). Like any othe r element of a crime, it may be proved by ci rcumstantial evidence, as long as such evidence excludes all reasonable hypotheses of innocenc e flowing from it. See Rice v. Co mmonwealth , 16 Va. App. 370, 372, 429 S. E.2d 879, 880 (1993) (citations omitted). Ci rcumstantial evidence of intent may incl ude the co nduct and statements of the alleged offender, and "[t]he finder of fact may infer that [he] intends the natural and probable consequences of his acts." Campbell v. Commonwealth , 12 Va. App. 476, 484, 405 S.E.2d 1, 4 (1991) ( en banc ) (citation omitted). Adams v. Commonwealth , 33 Va. App. 463, 47 0-71, 534 S. E.2d 347, 351 (2000). "Conspiracy is defi ned as 'an agreement between two or mo re persons by some concerted action to commit an offense.'" Feigley v. Commonwealth , 16 Va. App. 717, 722, 432 S.E.2d 520, 524 (1993) (quoting Wright v. Commonwealth , 224 Va. 502, 50 5, 297 S.E.2d 711, 713 (1982)). Pr oof of an explicit agreement is not required, and the Commonwealth ma y, and frequently must, rely on circumstantial evid ence to es tablish the conspiracy. See Stevens v. Commonwealth , 14 Va. App. 238, 241, 415 S.E.2d 881, 883 (1992). "[A] co nspiracy may be inferred from

- 11 -the overt acti ons of the parties, and a common purpose and plan may be inferred from a development and collocation of circumstances." McQuinn v. Commonwealth , 19 Va. App. 418, 425, 451 S.E.2d 704, 708 (1994) (internal quotat ions and citati ons omitted), aff'd en banc , 20 Va. App. 75 3, 460 S.E.2d 624 (1995). "Where . . . it has been shown that the defendants 'by their ac ts pursued the same object, one pe rforming one part and the others performing anot her part so as to complete it or with a view to its attainment, the [fact find er] will be justified in concluding that theywere engaged in a conspiracy to effect that object.'" Brown v. Commonwealth , 10 Va. App. 73 , 78, 390 S.E.2d 386, 388 (1990) (c itations omitted). Combs v. Commonwealth , 30 Va. App. 778, 78 7, 520 S.E.2d 388, 392-93 (1999). Guilty knowledge must be proved against each conspirator but it is only necessary to prove that the defend ant conspira tor "had such guilty knowledge, no matter how, where or when he ac quired it." Sands [ v. Commonwealth ], 62 Va. (21 Gratt.) [871,] 899-900 [(18 72)]. "[L]iability as a conspirator is not dependent on knowledge of the entire scope of the conspiracy. Knowledg e need not extend to all the detail s of the cons piracy, the identity of th e other conspira tors, the part each member of the cons piracy is to play, or how the spoils of the conspira cy are to be divided." 16 Am.Jur.2d Conspiracy§ 14 (1979). When one accedes to the conspiracy he sanctions what may have been previously done or said by the other in furtherance of the common object. Sands , 62 Va. (21 Gratt.) at 895. Amato v. Commonwealth , 3 Va. App. 544, 552- 53, 352 S.E.2d 4, 9 (1987).

- 12 -Appellant conc edes Chris Pope embezz led cotton from the farmers. We believe the evidence amply supp orts the trial court's finding that appellan t is also guilty of conspiracy and embezzlement. We first address th e embezzlement convic tions. When the cotton bales were remove d from the normal stre am of production and converted to the perpet rators' use, the embezz lement was complete. At that point, appe llant and his co-conspirator s exercised dominion and control ov er the farmers' cottoninconsistent with the rights of th e owners. Thus, the evid ence was sufficient to support the co nvictions for embezzlement. Appellant conten ds the evidence was in sufficient to support his convictions fo r conspiracy. It is uncontroverted that the company was deeplyin debt and could not cover the debt owed the farmers. Appell ant knew of this situat ion and was, himself, unable to genera te funds to further capi talize the business. Chris Pope told appellant that after the 1997 ginning season he might be able to refinance the debt. Chris Pope decided on a scheme to dive rt cotton from the farmers to create a fu nd to pay the farmers' demands for their money. Pope toldappellant that they would random ly take a bale of cotton off a module , not "class" it , and sell it so the money would be available if needed. Appellant responded that they needed to do what was necessary to insure th e company's survival.

- 13 -There was no discussionat that time of ho w the plan would be implemented. Further, appellant was a partner in the company and knew the operation of the busine ss. The fact finder could infer he knew that bales were accoun ted for by entering th em into the computer and that farmers were paid based on the bale s produced and sold. Appellant knew that the "106" bales were not ente red into the computer. Ambriz, on behalf of the Mexican workers, expressed his concern about the "unlisted bales. " Appellant re sponded, "They had been taken care of ." Appellant then spoke to the unhappy workers. He assured th em that they would be paid for all of the ginned bales, indicati ng there would be a pr int out of the "yellow tag" bales given to th e workers. Ap pellant told the workers that the "yellow tag" bales were being marketed di fferently. Appellant even knew the number of "skimmed " bales. The fa ct finder could reasonably infer that appellant knew of the diversio n of the

cotton. The evidence further establis hed that appell ant suggested secrecy in not revealin g the plan to his partner, Sa m Pope. When asked whether Sam Pope had been told of the plan, appe llant said that Sam Pope should not be informed at th at time. Appellant further responde d that Chris Pope would ta ke care of "who needed to know." Appellan t told Riddick not to worry about these matters. The tr ial court could in fer that appellan t concealed the illegality of th e plan by not telling his part ner, Sam Pope.
- 14 -There was another agreement prio r to the 1998 ginning season to divert cotton ba les and, thus, depriv e the farmers of the income from the sale of those ba les. In July or August 1998, appellant pres ided at a meeting attended by Chri s Pope, Sam Pope, and Riddick. Ap pellant asked for a status report of the "plan." Chris Pope related th e details of a new plan whereby every thirteenth bale woul d be set aside and handled through the Wakefield faci lity. Earlier, Chris Pope had told appellant that it would be necessary to "do the same thing" because th e company's financial cond ition had not improved. Again, ap pellant said that they must do whatever was necessary to surv ive. Know ing of the previous year's plan, appellant clearl y approved and agreed to "skimming" the cotton bales for the 19 98 season. Ap pellant denied such a meeting in 1998 to discuss any "plan." "In its role of judging witness credibility, th e fact finder is entitled to disb elieve the self-servi ng testimony of the accused and to conclude that the accused is lying to conceal his guilt." Marable v. Commonwealth , 27 Va. App. 50 5, 509-10, 500 S.E.2d 233, 235 (1998) (citing Speight v. Commonwealth , 4 Va. App. 83, 88, 354 S. E.2d 95, 98 (1987) ( en banc )). For the fact finder to acce pt appellant's testimony, the trial court had to believe that appellant, as an active partner, knew nothing of the oper ations of the gin. The tria l court had to believe that appellant had no knowledge that entry of the bales

- 15 -into the computer was required in or der for the fa rmers to be paid. The fact finder had to believ e that appellant, knowing that two sets of re cords were kept, one fo r the listed bales and another for the "1 06" bales, did not know that some bales were being "skimmed ." The fact find er had to believ e that appellant chose not to tell hi s partner, Sam Pope, of a wholly legal marketing plan. Furthe r, the trial court had to believe that when Chris Pope told appellant that the unclas sed bales woul d be sold so the proceeds would be available, if need ed, appellan t did not know that the pr oceeds were being diverted from the farmers. Appellant next conten ds the Commonwe alth failed to prove that he had the specific intent to depr ive the rightf ul owner of property because the Co mmonwealth failed to identify the cotton farmers. Appe llant argues th at because the clients of Old Dominion Fiber were paid, they were not the subject of embezzlement. An d, because the Co mmonwealth did not distinguish between the Old Do minion clients and the Southside Gi n clients, the Commonwealth did not meet its burden of proof. Appellant's argu ment has no merit. As suming that the clients of Old Dominion Fiber ultimately were paidfor the bales, our embezzlement jurisprude nce does not support appellant's theory. It is immaterial whether the fa rmers got paid at a later date.

- 16 -We next address appe llant's contenti on that he should have been convicted of only one count of embezzle ment because all of the larcenous ac ts were done pursuant to a single intent. As this Cour t stated in Acey v. Co mmonwealth , 29 Va. App. 240, 247, 511 S.E.2d429, 432 (1999): A series of larcen ous acts will be considered a single coun t of larceny if they "are done pursuant to a single impulse and in execution of a general fraudulent scheme." West v. Co mmonwealth , 125 Va. 747, 754, 99 S.E. 654, 656 (1919). We must consider the following factor s when deciding whether the single larceny doctrine applies: (1) the location of the items taken, (2) the lapse of time between the taking s, (3) the general and specific intent of the taker, (4) the number of owners of the item s taken and (5) whether intervening ev ents occurredbetween the takings. See Richardson v. Commonwealth , 25 Va. App. 491, 497, 489 S.E.2d 697, 700 (1997). "The pr imary factor to be considered is the intent of th e thief . . . ." See id.

In Richardson v. Commonwealth , 25 Va. App. 491, 497, 489 S.E.2d 697, 700 (1997) ( en banc ), we held, "[u]nl ess the evidence proves that two or more separate and discrete thefts occurred at separate times which we re not part of the sa me larcenou s impulse, then thefts from th e same room are but a single larceny." Id. However, "if different articles are taken from different owners at different times, the thief has co mmitted separate offenses." Id. at 495, 489 S.E.2d at 699 (citation omitted). In this case, the co tton bales were conv erted over a period of six to seven we eks. The ba les were owned by di fferent fa rmers. Clearly, time in tervened between each ac t of conversion. While

- 17 -there was a genera l scheme to conv ert the cotton ba les, there was a separate intent to convert each ti me the bales were diverted. Under the ra tionale of Acey and Richardson , the single larceny doctrine does not apply. Finally, appellant contends there was on ly one conspiracy. He argues that the 19 98 agreement wa s simply an ex tension of the 1997 conspiracy. The fa cts belie this argument. It is clear that th e parties intend ed for the 1997 conspiracy to end at the conc lusion of that season. Chris Pope indicated he was negotiating wi th banks to refinance th e company's debt after the 1997 season. Prior to the 1998 season, the conspira tors again met to evaluate the needfor the plan to continue for that season. A new agreement an d, thus, a new co nspiracy arose. It is clear from the facts that th e first conspira cy terminated at the end of the 1997 season. For these reason s, we find the eviden ce was sufficient to support appellant's convicti ons of embezzlement and conspi racy, to establish that appellan t committed more than one larceny, and to prove that there were two conspiracies . We, therefor e, affirm the judgment of th e trial court. Affirmed.

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