COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Russell and Malveaux Argued at Richmond, Virginia

KELLY A. DICKERSON MEMORANDUM OPINION * BY v. Record No. 0821-17-2 JUDGE WESLEY G. RUSSELL, JR. MAY 8, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY W. Allan Sharrett, Judge Sarah Ashley Link (Link Law Firm, PLLC, on brief), for appell ant. Elizabeth Kiernan Fitzgerald, Assistant Attorney General (Mar k R. Herring, Attorney General, on brief), for appellee.
Kelly A. Dickerson, appellant, w as convicted of seven counts o f felony embezzlement and twelve counts of misdemeanor embezzlement in violation of Code § 18.2-111. 1 On appeal, she does not contest that t he embezzlements occu rred; rather, she a rgues that the evidence was insufficient to establish that she was the perpetrator of the o ffenses. We disagree and affirm her convictions.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Code § 18.2-111 incorporates the monetary limits found in Code §§ 18.2-95 and 18.2-96 by express reference to thos e statutes. As a result, a n embezzlement is punished as either grand or petit larce ny depending upon the amount embezzl ed. At the relevant time, the grand larceny limit was $200. Code § 18.2-95. Accordingly, em bezzlements involving more than $200 were punished as felonies while embezzlements involvi ng less than $200 were punished as misdemeanors.UNPUBLISHED- 2 - BACKGROUND When examining the sufficienc y of the evidenc e supporting a co nviction, “we view the evidence, and all inferences r easonably drawn from it, in the l ight most favorable to the Commonwealth. ‘It is our duty to affirm the trial court’s judg ment unless that judgment is plainly wrong or without evide nce to support it.’” Reid v. Com monwealth, 65 Va. App. 745, 753, 781 S.E.2d 373, 377 (2016) (internal citation omitted) (qu oting Muhammad v. Commonwealth, 269 Va. 451, 536, 619 S.E.2d 16, 65 (2005)). So viewed, the evidenc e established that a ppellant worked as anassistant manager at Piggly Wiggly in Emporia in 2015. While reviewing security foo tage of the cash registers for an unrelated cause, Chris Harris , a Piggly Wiggly produce manager, observed appellant conducting an unusual number of returns unde r unusual circumstances. On n ineteen occasions from August 30 through December 19, 2015, appellant processed returns at th e registers without any customers being present. In some of the transactions, appe llant, after keying into the register a numeric value to represent the total number of the item pur portedly being return ed, scanned the item purportedly being returned. On other occasions , video footage showed appel lant simply keying the return into the register without sca nning the item. Many of the retur ns consisted of cans of Similac Alimentum (Alimentum), a type of b aby formula for sensitive or sick children. Other returns included grocery items. All return transactions produce d receipts from the store’s int ernal computer system showing the “return,” but no corre sponding receipts existed for the sale of the i tems purportedly returned. Despite the lack of c orresponding sales for the retu rns, each register used by appellant “balanced” at the end of the ni ght when the paperwork and bank deposits were prepared.- 3 - Although the store’s inventory s ystem did not allow for an act ive tracking of how many items were in stock for a particul ar item, Harris was able to c ompile data regarding sales and returns in the relevant time period. Upon request of law enfor cement, Harris prepared a document that demonstrated the disparity between items sold and items that appellant “returned.” For example, Harris testifie d that, based on his documentation of inventory, in the time period covering the dates of appellant’s return transacti ons, the stor e sold only one can of Alimentum, yet appellant processed “retur ns” for over one hundred cans. The cashiers at Piggly Wiggl y were known to run off each other ’s registers because they all knew each other’s login numbers, resulting in some of the r eceipts having other cashiers’ names on them. Thus, without the video establishing that appel lant had in fact processed the returns, the register receipts would make it appear that other cashiers had been making some of the returns. Furthermore, manag ers and assistant managers are responsible for counting the registers every night and prep aring the bank deposit. On the d ates of the purported returns, appellant was the closing assistant manager, was responsible fo r making sure the registers “balanced,” and prepared the bank deposits. Polly Daniel, senior manager during the relevant period, was r esponsible for training appellant for positions ranging from cashier to assistant manag er. Although the two worked together, appellant liked to do o ffice work, so Daniel let her “do the paperwork and stuff.” Daniel testified that once appe llant was promoted to assistant manager, appellant’s duties included making the n ightly bank deposit. Daniel described how the depositprocess was supposed to work. A manager or assistant manager, usually appellant, would c alculate the drawers at the end of the night, put the money into a bank bag, lock it, and trans port it to the bank. Daniel explained that the deposit bag was a cloth bag with a zipper and a l ock on it. After being zipped, the lock had to be pushed down to- 4 - secure the bag. Accordingly, it was possible to leave the stor e with the bag zipped closed but not locked, remove cash from the bag, and push the lock closed befo re dropping the bag off at the bank. Once the bag was locked, however, it could not be opened again without the key. The only other employee who sometimes made bank runs did not have a key to open the deposit bag. Daniel acknowledged that the key to unlock the bank bags was k ept in a drawer in the store office. The office was subject to video surveillance. D aniel testified that she watched all of the office videos and did not observe any unauthorized emplo yee accessing either the key or the safe. 2 Further, she did not observe a nyone, including appellant, dir ectly “pocket money” in the office. Virginia State Police Senior Special Agent Steward Williams as sisted the Emporia Police Department in investigating thi s case. He interviewed appellan t, and she denied taking any money from Piggly Wiggly. When c onfronted with the videos, app ellant explained that she normally conducted her returns when it was less busy and no cus tomers were around. She claimed Daniel “normally” told he r to process th e returns; howe ver, Daniel testified that she never asked appellant to proce ss a return for baby formula and that it was a highly unusual practice to process returns without a customer present. Appellant testified at trial. T he thrust of her testimony is t hat she had been set up by Daniel, who she claims was the perpetrator of the embezzlement scheme. Appellant acknowledged that she is a convi cted felon with forty years “ov er the top of [her] head.” In convicting appellant, t he court concluded: Now, it’s clear, and the defe ndant herself admitted, that what was taking place here ha d to be -- the money had to be relieved from the bag or there was going to be an overage. The re

2 For some of the dates in ques tion, the office videos were intr oduced into evidence; however, the office videos for othe r dates were not introduced into evidence. The videos depicting appellant’s actions a t the various cash registers wer e introduced for all of the relevant dates.- 5 - was no purpose in doing what appeared to be being done, be taki ng place, if the money wasn’t going to be relieved from the bag, because that’s the only place the theft could take place. The court explained that the “lo cked bag isn’t really a locked bag”; it does not automatically lock because it does not need to be “thumb locked ” before a manager leaves the store. “You can go anywhere you wan t and remove money without any difficulty, without any hint or possibility of being s een by anyone.” The court then f ound: The [c]ourt has judged the testimony of the witnesses, judged their manner and appearan ce while testifying, their inte rest in the outcome of this case, their bias, the way they’ve testif ied. It’s poured this through the cruc ible of common sense and it fi nds, as trier of fact, that Ms. Danie l and Mr. Harris were in fact quite credible and that Ms. Dickerson w as asking the [c]ourt to engag e in leaps of conjecture that it simply could not do, consistent with maintaining its common sense. This appeal followed.
ANALYSIS “When the sufficiency of the e vidence is challenged on appeal, this Court ‘must affirm the conviction unless it is plai nly wrong or without evidence t o support it.’” Gerald v. Commonwealth, 68 Va. App. 167, 172, 805 S.E.2d 407, 410 (2017) (quoting Spencer v. City of Norfolk, 271 Va. 460, 463, 628 S.E.2d 356, 358 (2006)). Under this familiar standard of review, “[a]n appellate court does not ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’” Williams v. Com monwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U. S. 307, 318-19 (1979)). “Rather, the relevant question is whether ‘ any rational trier of fact c ould have found the essential elements of the crime beyond a r easonable doubt.’” Id. (quotin g Jackson, 443 U.S. at 319). Appellant was convicted of embezzlement in violation of Code § 18.2-111, which provides that:- 6 - If any person wrongfully and fraudulently use, dispose of, conc eal or embezzle any money, bill, note, check, order, draft, bond, receipt, bill of lading or any other personal property, tangibl e or intangible, which he shall have r eceived for another or for his employer, principal or bailor, o r by virtue of his office, trus t, or employment, or which shall have be en entrusted or delivered to him by another or by any court, c orporation or company, he shal l be guilty of embezzlement. Proof of embezzlement shall be sufficient to sustain the charge of larceny. Appellant contends that, although th e evidence establishes that the charged embezzlements occurred, the evidence did not eliminate the poss ibility that someone else committed them. She argues that “multiple people had access to the office while it was unlocked, and with issues concer ning the deposit bag remaining unlocked, the safe open, and the petty cash drawers open or unlocke d, countless people could hav e had access to money at any given time . . . .” Given the video and inventory evide nce, it cannot be disputed t hat appellant completed multiple fraudulent returns without a customer present. Despit e the store selling only one can of Alimentum in the relevant peri od, appellant processed returns f or more than one hundred cans. Because no money was removed fromthe register and given to a c ustomer or other deduction made when the fraudulent returns were processed, 3 the registers necessarily contained more money than the register receipts indicated at the end of the ni ght. 4 Thus, the fact that the store’s paperwork reflected that the re gisters balanced at the end of the night when the bank deposit was

3 In addition to cash returns, retur ns potentially could be made by customers who purchased items without cash, such as through the use of benefi ts from the United States Department of Agriculture’s Special Supplemental Nutrition Prog ram for Women, Infants, and Children, commonly referred to as WIC. Such transactions that do not involve cash are processed through the use of a card to effectuate the electroni c benefits transfer.

4 In response to a question from the trial court, appellant conf irmed that the fraudulent transactions would have created ove rages in the registers each day.- 7 - prepared means that someone i nvolved in processing the register s at the end of the night and making the bank deposit was stealing the money associated with the fraudulent returns. The evidence also established t hat only the manager and assista nt managers closed the registers and prepared the depos its. On the relevant nights, a ppellant, who was the person seen on video processing the fraudulen t returns, was working, and te stimony established that she closed the registers a nd prepared the deposits. Recognizing this, appellant o ffered that Daniel had access to t he deposits and testified that she processed the returns in question at the direction of Daniel, her superior. As factfinder, the trial court heard appellant’s alternative theory of Daniel as the perpetrator and rejected it, finding the testimony unbelievable and crediting the testimony that implicated appellant. The law is clear that determini ng the credibility of the witnes ses and the weight afforded the testimony of those witnesses ar e matters left to the trier of fact, who has the ability to hear the witnesses and observe them as they testify. Burnette v. Common wealth, 60 Va. App. 462, 476, 729 S.E.2d 740, 746 (2012). Accordingly, “ where a trial court sitting without a jury hears witnesses testify and observes their demeanor on the stand, it has the right to believe or disbelieve their statement s.” Wilson v. Commonwealth, 46 Va. A pp. 73, 87, 615 S.E.2d 500, 507 (2005) (quoting Morning v. Commonwealth, 37 Va. App. 679, 6 86, 561 S.E.2d 23, 26 (2002)). As a result, the “conc lusions of the fact finder on i ssues of witness credibility ‘may only be disturbed on appeal if this Court finds that [the witne ss’] testimony was “inherently incredible, or so contrary to hum an experience as to render it unworthy of belief.”’” Johnson v. Commonwealth, 58 Va. App. 303, 315, 709 S.E.2d 175, 181 (2011) (alteration in original) (quoting Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S .E.2d 417, 419 (1991)). Here, even though appellant testifie d that she processed the re turns at the direction of Daniel and did not embezzle the money, the trial court was enti tled to discredit her testimony and- 8 - believe the conflicting testim ony offered by the Commonwealth. In light of the other evidence presented, the trial court could c onclude that appellant commit ted the offenses. Appellant also argues that there is no video evidence of her ac tually taking the money and that other people had access to the places (registers, the office, the bank, etc.) where the money was located at various poi nts in time. The lack of an ey ewitness who saw or a video that shows appellant taking the mone y does not entitle her to an acq uittal. “Circumstantial evidence is as competent and is entitled t o as much weight as direct evi dence, provided it is sufficiently convincing.” Stamper v. Commonwealth, 220 Va. 260, 272, 257 S. E.2d 808, 817 (1979). “Circumstantial evidence is not viewed in isolation. ‘While no single piece of evidence may be sufficient, the combined force of many concurrent and related c ircumstances, each insufficient in itself, may lead a reasonable mi nd irresistibly to a conclusion .’” Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (quoting Derr v. Commo nwealth, 242 Va. 413, 425, 410 S.E.2d 662, 669 (1991)). Where “[t]he circumstances . . . all concur to form an unbroken chain which links the defendant to the crime beyond a reasonabl e doubt,” the circumstantial evidence is sufficient to s upport the conviction. Bishop v. Co mmonwealth, 227 Va. 164, 169, 313 S.E.2d 390, 393 (1984). There is ample evidence in the r ecord for a reasonable factfind er to conclude beyond a reasonable doubt that appellant committed the offenses. It can not be disputed that she processed the fraudulent returns. Other evidence established that she wa s responsible for closing the registers, preparing the ba nk deposits, and taking the deposits from the store to the bank on the relevant nights. Thus, she knew that the registers had to have overages, but still managed to “balance” the registers and ha ve that total match the bank depo sits she was to make. Coupling this anomaly with the other evi dence, including appellant’s acc ess to the deposits when she transported them to the bank, provi des a sufficient basis for areasonable factfinder to conclude- 9 - that she committed the offenses. Accordingly, the trial court did not err in rejecting appellant’s hypothesis of innocence.
CONCLUSION For the reasons stated above, t he trial court did not err in c onvicting appellant of nineteen counts of embezzlement. Accordin gly, we affirm the judgment of the trial court. Affirmed.