COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Frank and Humphreys 

Argued at Chesapeake, Virginia 

STEPHEN WAYNE FERGUSON 

 MEMORANDUM OPINION* BY 

v. Record No. 1667-00-1 JUDGE ROBERT P. FRANK 

 JULY 24, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY 

E. Everett Bagnell, Judge 

 Steven D. Benjamin (Betty Layne DesPortes; 

Benjamin & DesPortes, P.C., on briefs), for 

appellant. 

 Richard B. Smith, Senior Assistant 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 Ferguson (appellant) appeals his convictions 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 convictions for embezzlement 

and conspiracy; 2) finding the evidence sufficient to prove that a 

deprivation of property occurred; and 3) denying his motion to 

strike the multiple convictions under the single larceny doctrine. 

Finding no error, we affirm appellant's convictions. 
I. BACKGROUND 

 Chris Pope worked at the Southside Gin (the company) in 

Southampton from 1991 to 1998 and began marketing cotton for the 

company in 1996. Appellant and Sam Pope, Chris's father, were 

equal partners in the company until 1998, when the ownership 

changed. At that time, one-third of the company was purchased by 

Old Dominion Fibers, a corporation owned by Jeffrey Pope, Mark 

Pope and Chris Pope. Appellant and Sam Pope each had a one-third 

ownership interest in the company. 

 During the period between 1996 and 1997, the company built 

another gin in Wakefield, costing between $3.1 million and $3.2 

million. The company also built an oil company. Cost overruns 

were covered by funds due to farmers for their cotton. Farmers, 

or cotton producers, would often leave money on deposit with the 

company, receiving interest on their money, subject to demand for 

payment. 

 Chris Pope became the Southampton gin manager in summer 1997, 

when the company's debt was approximately $1 million. Due to the 

financial condition of the gin, its government license to store 

cotton was revoked and this action was made public. 

 Chris Pope was unable to refinance the gin's debt in summer 

1997. He also was unable to reduce the company's short-term debt, 

which was draining the company's cash flow. 

 When farmers demanded payment on money they were due, the 

business was able to meet the demand until late 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 farmers' demands up to 

the 1997 ginning season. Still, $500,000 remained due to the 

farmers, which the company could not cover. 

 Appellant was aware of the company's financial plight. He 

had no additional funds to invest in the company. He had 

financial problems with a hog farm he independently owned. 

Appellant also knew of the $1.8 million dollar debt to the 

farmers. Chris Pope told appellant that he was negotiating loan 

refinancing with some banks and that if the company could 

financially survive the 1997 season, the banks might refinance. 

 In this financial setting, Chris Pope decided he needed to 

divert cotton from the farmers, sell the cotton bales, and use 

those proceeds to create a fund to pay the farmers' demands for 

their money. 

 Chris Pope's plan was to randomly tag a bale of cotton from a 

module after the ginning process was completed. The yellow-tagged 

bale, so selected, would not be entered into the company's 

computer and the farmer would not be compensated for that bale. 

The bale would then be sold separately. 

 Chris Pope stated he first discussed his skimming scheme with 

the gin's manager, Tom Riddick, prior to the ginning season in 

September 1997. He stated that he did not tell Riddick what he 

was going to do with the money. When Riddick agreed to the plan, 

- 3 -
Chris Pope then told appellant about his plan to make extra money 

for the company. 

 Specifically, Chris Pope testified he told appellant, "That I 

thought we needed to randomly take a bale off a module, not class 

it and I would look after selling it so the money would be 

available if we needed it." Chris Pope said that appellant 

responded, "We needed to make sure that we did what we had to do 

to make sure the company survived." There was no discussion as to 

the details or mechanics of the plan. 

 Chris Pope's plan commenced with the random selection of 

modules. One of its bales would then be tagged with a yellow 

warehouse tag carrying a number that always began with "106." 

These "106" bales would not be scanned into the computer and, 

thus, not reported to the United States Department of Agriculture. 

The company's Mexican labor force was told that these bales were 

not being classed because they were going to a specific mill. 

During the 1997 season, 911 bales were diverted by this scheme and 

the funds were paid to Old Dominion Fibers. The "106" bales were 

not shown on any farmer's payment reports nor were the farmers 

paid for those bales. Chris Pope and Riddick kept a separate 

handwritten list of the "106" bales. The total value of the "106" 

bales in 1997 was $180,000. Chris Pope further testified that he 

would not have "skimmed" the bales if appellant had not agreed. 

 Riddick testified that Chris Pope told him about his plan to 

help the company's cash flow. Riddick claimed that Chris Pope 

- 4 -
assured him the farmers would be paid. Chris Pope told Riddick he 

had talked his scheme over with appellant. Riddick testified that 

on the same day he talked to Chris Pope, appellant asked Riddick 

if Pope had told him about what Pope had planned. 

 Riddick testified, 

I said yes, sir, he told me about, you know, 

marking the modules and pulling the bales off 

to the side. My first question to Steve 

[appellant] was was this something you -- you 

know, you-all really considering doing this. 

I was concerned, you know, about what they 

were doing. And Steve made the comment it 

was something we have to do to survive. 

 Riddick then asked appellant if his partner, Sam Pope, knew 

"what was going on." Appellant responded that at that time they 

felt that Sam Pope did not need to know. Appellant stated that 

Chris Pope would take care of the money and who needed to know in 

the office. Appellant told Riddick not to worry about those 

matters. 

 Appellant had overall responsibility for the gin's Mexican 

labor force, who were entitled to a bonus based on the number of 

bales ginned. Riddick testified appellant was at the gin almost 

every day in 1997. The workers became concerned in 1997 when they 

noticed the "106" bales were not being scanned into the computer. 

Chris Pope told appellant of these concerns as did Evaristo 

Ambriz, the leader of the Mexican work force. 

 In early December 1997, Ambriz expressed concern about the 

"106" bales to Riddick and appellant. When he met with them at 

- 5 -
the gin, Ambriz directed his comments to appellant who had the 

final decision on the amount of the bonuses. When Ambriz told 

appellant to make sure the "unlisted bales" were included in the 

bonuses, appellant replied, "They've been taken care of," and 

mentioned the number of bales involved, which Ambriz believed was 

around 930. 

 A number of the gin's employees knew that the "106" bales 

were handled differently. Alex Delgado testified that in loading 

bales for shipment from the warehouse, he would be provided with a 

computer printout on the normal bales but was given a paper list 

of "106" bales to be placed on a particular load. 

 John Lopez was a forklift operator at the Southampton gin in 

1997. He testified that the bales on the dock usually were tagged 

in sequence. He stated there was a series of "106" bales that 

were not scanned into the computer, although the other bales were 

entered. Lopez weighed the "106" bales and kept a record of each 

bale's number and weight. This list was either picked up or Lopez 

delivered it to the office. Because part of Lopez's pay came from 

a bonus on the bales produced, he became concerned that the "106" 

bales would be excluded from his count. 

 Prior to the 1998 season, Chris Pope told Riddick and 

appellant it again would be necessary to "do the same thing" 

because the company's financial situation had not improved. Pope, 

however, changed the system by placing every thirteenth tag in a 

box of bale tags with an out-of-sequence number, and the bales 

- 6 -
would be scanned in the computer. These bales were to be taken to 

the Wakefield facility, owned by Jeff Pope, Chris Pope and Mark 

Pope. Appellant again responded that Pope needed to do whatever 

was necessary for the company to survive. 

 In 1998, a "312" tag sequence was used for bales removed out 

of sequence from modules, marked with an "X" and placed separately 

in the warehouse. Delgado stated that he and John Lopez "stuffed" 

the tag boxes with the out-of-sequence tags from a list given to 

them by Chris Pope. 

 Riddick stated that in July or August 1998, Chris Pope, Sam 

Pope, Riddick and appellant met at the gin. Appellant presided at 

the meeting. Appellant asked Chris Pope "about how things were 

coming along with um –-- you know, his plan that he had talked 

about." Chris Pope told appellant and the others more details of 

the plan, specifically tagging the thirteenth bale, using the 

Wakefield facility and entering the bales into the computer. 

 When Cecil Byrum's cotton was processed at the Wakefield gin 

in 1998, Ambriz noticed that every thirteenth bale had an 

out-of-sequence tag number. Although the computer showed that 

sixty bales had been processed, sixty-six bales had actually been 

ginned. 

 Appellant denied any knowledge of any plan to deprive the 

farmers of any cotton or revenue. Appellant testified he became 

concerned about the gin's operation in 1996 and also concerned 

about the Wakefield gin to be built in 1996 or early 1997. The 

- 7 -
general manager, Flippin, advised appellant in early 1997 about a 

lot of cost overruns and that the oil mill and the Wakefield gin 

were costing a lot more than anticipated. 

 In late summer 1997, appellant spoke with Chris and Sam Pope 

about the gin's financial condition. They owed a tremendous 

amount of money and were in serious trouble. Appellant testified 

he talked about consulting a bankruptcy lawyer, but Sam Pope 

refused to discuss bankruptcy when he saw they owed the farmers 

$1.8 million. At a meeting the next week, however, Sam Pope 

agreed to put up $500,000 and said he would try to get 

refinancing. 

 Appellant testified he had a meeting with Chris Pope during 

which Pope stated he was planning on not "classing" some cotton 

because it would save the farmers money. Appellant was assured it 

was legal to sell unclassed cotton. "Classing" cotton is a 

process in which a sample of cotton is sent to a federal 

government facility in South Carolina for classification. By not 

"classing" it, the cotton could be marketed quicker and would give 

the business a "competitive edge." Appellant denied any knowledge 

of skimming or any agreement to do so. 

 Appellant admitted meeting with Riddick and Ambriz over the 

workers' concerns that they might not get bonuses on the 

"non-classed bales." Riddick showed Ambriz several sheets that 

listed the regular bales and the non-classed bales. 

- 8 -
 Appellant denied that there was a meeting in 1998 to discuss 

a plan for that ginning year. He further denied ever stating that 

Chris Pope had to do whatever was necessary for the company to 

survive. 

 Appellant acknowledged being aware that farmers were leaving 

money with the gin, which would have to be repaid upon demand. He 

knew the gin could not meet all the demands and would have to 

close without additional funds. Appellant acknowledged that the 

idea was just to survive the 1997 season and hope for refinancing 

in 1998. Appellant also acknowledged that he personally had 

financial difficulties. He admitted he possibly would be broke if 

the gin did not survive. He had no more funds to put into the 

gin. 

 To summarize, appellant testified he did not know the bales 

were not being shown on the computer, that skimming was occurring, 

and that the bales were not accounted for to the farmers. His 

only knowledge was that certain bales were not being "classed" by 

the United States Department of Agriculture. 

 Appellant was convicted by the trial court of six counts of 

embezzlement and two counts of conspiracy. 

II. ANALYSIS 

 Appellant first contends that the evidence was not sufficient 

to convict him of embezzlement and conspiracy. 

 "Where the sufficiency of the evidence 

is challenged after conviction, it is our 

duty to consider it in the light most 

- 9 -
favorable to the Commonwealth and give it all 

reasonable inferences fairly deducible 

therefrom. We should affirm the judgment 

unless it appears from the evidence that the 

judgment is plainly wrong or without evidence 

to support it." Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 

534, 537 (1975). Moreover, "[i]f there is 

evidence to support the conviction, an 

appellate court is not permitted to 

substitute its own judgment for that of the 

finder of fact, even if the appellate court 

might have reached a different conclusion." 

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 matters solely for the fact 

finder's determination. In its role of 

judging witness credibility, the fact finder 

is entitled to disbelieve the self-serving 

testimony of the 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) (citations 

omitted). 

Snow v. Commonwealth, 33 Va. App. 766, 774, 537 S.E.2d 6, 10 

(2000). 

 "To establish the statutory crime of embezzlement, the 

Commonwealth must prove that the accused wrongfully appropriated 

to [his] use or benefit, 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, 766 (1987)). 

 The Commonwealth is not required to prove that the accused 

intended to permanently deprive 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 when there has been an 

'[u]nauthorized and wrongful exercise of dominion and control over 

another's personal property, to exclusion of or inconsistent with 

rights of the 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 other element of a crime, 

it may be proved by circumstantial evidence, 

as long as such evidence excludes all 

reasonable hypotheses of innocence flowing 

from it. See Rice v. Commonwealth, 16 Va. 

App. 370, 372, 429 S.E.2d 879, 880 (1993) 

(citations omitted). Circumstantial evidence 

of intent may include the conduct 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, 470-71, 534 S.E.2d 347, 

351 (2000). 

 "Conspiracy is defined as 'an agreement 

between two or more 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, 505, 297 S.E.2d 

711, 713 (1982)). Proof of an explicit 

agreement is not required, and the 

Commonwealth may, and frequently must, rely 

on circumstantial evidence to establish the 

conspiracy. See Stevens v. Commonwealth, 14 

Va. App. 238, 241, 415 S.E.2d 881, 883 

(1992). "[A] conspiracy may be inferred from 

- 11 -
the overt actions 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 quotations and citations omitted), 

aff'd en banc, 20 Va. App. 753, 460 S.E.2d 

624 (1995). 

 "Where . . . it has been shown that the 

defendants 'by their acts pursued the same 

object, one performing one part and the 

others performing another part so as to 

complete it or with a view to its attainment, 

the [fact finder] will be justified in 

concluding that they were engaged in a 

conspiracy to effect that object.'" Brown v. 

Commonwealth, 10 Va. App. 73, 78, 390 S.E.2d 

386, 388 (1990) (citations omitted). 

Combs v. Commonwealth, 30 Va. App. 778, 787, 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 defendant conspirator "had 

such guilty knowledge, no matter how, where 

or when he acquired it." Sands[v. 

Commonwealth], 62 Va. (21 Gratt.) [871,] 

899-900 [(1872)]. 

 "[L]iability as a conspirator is not 

dependent on knowledge of the entire scope of 

the conspiracy. Knowledge need not extend to 

all the details of the conspiracy, the 

identity of the other conspirators, the part 

each member of the conspiracy is to play, or 

how the spoils of the conspiracy 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 concedes Chris Pope embezzled cotton from the 

farmers. We believe the evidence amply supports the trial court's 

finding that appellant is also guilty of conspiracy and 

embezzlement. 

 We first address the embezzlement convictions. When the 

cotton bales were removed from the normal stream of production and 

converted to the perpetrators' use, the embezzlement was complete. 

At that point, appellant and his co-conspirators exercised 

dominion and control over the farmers' cotton inconsistent with 

the rights of the owners. Thus, the evidence was sufficient to 

support the convictions for embezzlement. 

 Appellant contends the evidence was insufficient to support 

his convictions for conspiracy. It is uncontroverted that the 

company was deeply in debt and could not cover the debt owed the 

farmers. Appellant knew of this situation and was, himself, 

unable to generate funds to further capitalize 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 divert cotton from the 

farmers to create a fund to pay the farmers' demands for their 

money. Pope told appellant that they would randomly 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 the company's survival. 

- 13 -
There was no discussion at that time of how the plan would be 

implemented. 

 Further, appellant was a partner in the company and knew the 

operation of the business. The fact finder could infer he knew 

that bales were accounted for by entering them into the computer 

and that farmers were paid based on the bales produced and sold. 

Appellant knew that the "106" bales were not entered into the 

computer. Ambriz, on behalf of the Mexican workers, expressed his 

concern about the "unlisted bales." Appellant responded, "They 

had been taken care of." Appellant then spoke to the unhappy 

workers. He assured them that they would be paid for all of the 

ginned bales, indicating there would be a print out of the "yellow 

tag" bales given to the workers. Appellant told the workers that 

the "yellow tag" bales were being marketed differently. Appellant 

even knew the number of "skimmed" bales. The fact finder could 

reasonably infer that appellant knew of the diversion of the 

cotton. 

 The evidence further established that appellant suggested 

secrecy in not revealing the plan to his partner, Sam Pope. When 

asked whether Sam Pope had been told of the plan, appellant said 

that Sam Pope should not be informed at that time. Appellant 

further responded that Chris Pope would take care of "who needed 

to know." Appellant told Riddick not to worry about these 

matters. The trial court could infer that appellant concealed the 

illegality of the plan by not telling his partner, Sam Pope. 

- 14 -
 There was another agreement prior to the 1998 ginning season 

to divert cotton bales and, thus, deprive the farmers of the 

income from the sale of those bales. In July or August 1998, 

appellant presided at a meeting attended by Chris Pope, Sam Pope, 

and Riddick. Appellant asked for a status report of the "plan." 

Chris Pope related the details of a new plan whereby every 

thirteenth bale would be set aside and handled through the 

Wakefield facility. Earlier, Chris Pope had told appellant that 

it would be necessary to "do the same thing" because the company's 

financial condition had not improved. Again, appellant said that 

they must do whatever was necessary to survive. Knowing of the 

previous year's plan, appellant clearly approved and agreed to 

"skimming" the cotton bales for the 1998 season. Appellant denied 

such a meeting in 1998 to discuss any "plan." 

 "In its role of judging witness credibility, the fact finder 

is entitled to disbelieve the self-serving testimony of the 

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) (citing Speight v. Commonwealth, 4 Va. App. 

83, 88, 354 S.E.2d 95, 98 (1987) (en banc)). 

 For the fact finder to accept appellant's testimony, the 

trial court had to believe that appellant, as an active partner, 

knew nothing of the operations of the gin. The trial court had to 

believe that appellant had no knowledge that entry of the bales 

- 15 -
into the computer was required in order for the farmers to be 

paid. 

 The fact finder had to believe that appellant, knowing that 

two sets of records were kept, one for the listed bales and 

another for the "106" bales, did not know that some bales were 

being "skimmed." The fact finder had to believe that appellant 

chose not to tell his partner, Sam Pope, of a wholly legal 

marketing plan. Further, the trial court had to believe that when 

Chris Pope told appellant that the unclassed bales would be sold 

so the proceeds would be available, if needed, appellant did not 

know that the proceeds were being diverted from the farmers. 

 Appellant next contends the Commonwealth failed to prove that 

he had the specific intent to deprive the rightful owner of 

property because the Commonwealth failed to identify the cotton 

farmers. Appellant argues that because the clients of Old 

Dominion Fiber were paid, they were not the subject of 

embezzlement. And, because the Commonwealth did not distinguish 

between the Old Dominion clients and the Southside Gin clients, 

the Commonwealth did not meet its burden of proof. 

 Appellant's argument has no merit. Assuming that the clients 

of Old Dominion Fiber ultimately were paid for the bales, our 

embezzlement jurisprudence does not support appellant's theory. 

It is immaterial whether the farmers got paid at a later date. 

- 16 -
 We next address appellant's contention that he should have 

been convicted of only one count of embezzlement because all of 

the larcenous acts were done pursuant to a single intent. 

 As this Court stated in Acey v. Commonwealth, 29 Va. App. 

240, 247, 511 S.E.2d 429, 432 (1999): 

 A series of larcenous acts will be 

considered a single count of larceny if they 

"are done pursuant to a single impulse and in 

execution of a general fraudulent scheme." 

West v. Commonwealth, 125 Va. 747, 754, 99 

S.E. 654, 656 (1919). We must consider the 

following factors when deciding whether the 

single larceny doctrine applies: (1) the 

location of the items taken, (2) the lapse of 

time between the takings, (3) the general and 

specific intent of the taker, (4) the number 

of owners of the items taken and (5) whether 

intervening events occurred between the 

takings. See Richardson v. Commonwealth, 25 

Va. App. 491, 497, 489 S.E.2d 697, 700 

(1997). "The primary factor to be considered 

is the intent of the thief . . . ." See id.

 In Richardson v. Commonwealth, 25 Va. App. 491, 497, 489 

S.E.2d 697, 700 (1997) (en banc), we held, "[u]nless the evidence 

proves that two or more separate and discrete thefts occurred at 

separate times which were not part of the same larcenous impulse, 

then thefts from the same room are but a single larceny." Id. 

However, "if different articles are taken from different owners at 

different times, the thief has committed separate offenses." Id.

at 495, 489 S.E.2d at 699 (citation omitted). 

 In this case, the cotton bales were converted over a period 

of six to seven weeks. The bales were owned by different farmers. 

Clearly, time intervened between each act of conversion. While 

- 17 -
there was a general scheme to convert the cotton bales, there was 

a separate intent to convert each time the bales were diverted. 

Under the rationale of Acey and Richardson, the single larceny 

doctrine does not apply. 

 Finally, appellant contends there was only one conspiracy. 

He argues that the 1998 agreement was simply an extension of the 

1997 conspiracy. The facts belie this argument. 

 It is clear that the parties intended for the 1997 conspiracy 

to end at the conclusion of that season. Chris Pope indicated he 

was negotiating with banks to refinance the company's debt after 

the 1997 season. Prior to the 1998 season, the conspirators again 

met to evaluate the need for the plan to continue for that season. 

A new agreement and, thus, a new conspiracy arose. It is clear 

from the facts that the first conspiracy terminated at the end of 

the 1997 season. 

 For these reasons, we find the evidence was sufficient to 

support appellant's convictions of embezzlement and conspiracy, to 

establish that appellant committed more than one larceny, and to 

prove that there were two conspiracies. We, therefore, affirm the 

judgment of the trial court. 

Affirmed. 

- 18 -