COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Lemons 

Argued at Richmond, Virginia 

CYNTHIA LEE EAST 

 MEMORANDUM OPINION* BY 

v. Record No. 0013-98-2 JUDGE JERE M. H. WILLIS, JR. 

 MARCH 23, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Thomas N. Nance, Judge 

 Steven D. Benjamin (Betty Layne DesPortes; 

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

appellant. 

 Mary E. Langer, Assistant Attorney General 

(Mark L. Earley, Attorney General; Rhonda 

McGarvey, Senior Assistant Attorney General & 

Chief, on brief), for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 Cynthia Lee East was convicted of four counts of 

embezzlement, specified as follows: (1) that on or about August 

1, 1996, she did embezzle U.S. currency having a value of $200 or 

more, (2) that on or about February 26-27, 1997, she did embezzle 

U.S. currency having a value of $200 or more, (3) that on or 

about March 6, 1997, she did embezzle U.S. currency having a 

value of $200 or more, and (4) that on or about March 6, 1997, 

she did embezzle U.S. currency having a value of $200 or more. 

On appeal, she contends that the evidence fails to support those 

convictions. We affirm the convictions relating to the March 6, 
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1997 charges. We reverse the convictions relating to the August 

1, 1996 and February 26-27, 1997 charges. 

I. BACKGROUND

 On appeal, we review the evidence in the 

light most favorable to the Commonwealth, 

granting to it all reasonable inferences 

fairly deducible therefrom. The judgment of 

a trial court sitting without a jury is 

entitled to the same weight as a jury verdict 

and will not be set aside unless it appears 

from the evidence that the judgment is 

plainly wrong or without evidence to support 

it. 

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 

(1987). 

 East was one of two cashiers in the cashier's office of the 

Department of General Services, where she received cash payments 

relating to state surplus property auction sales. The money was 

ordinarily placed in a safe at the office until deposited. Money 

received after 12:30 p.m. was held for deposit the next day. The 

safe remained open during the day. 

 A customer making payment would produce a "sale award" 

certifying his successful bid, the property purchased, and the 

amount owed. The cashier receiving payment would stamp on the 

sale award and initial a receipt showing the amount received, 

whether the payment was by cash or check, and if by check, 

identification of the check. The cashier was then required to 

record the receipt on a "check register," an internal document 

designating the payor, the amount of payment, and the form of 

payment. The check registers were reviewed by June Hodge, the 
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other cashier, were sent by her for data entry, and were then 

received back and filed. East was responsible for reconciling 

bank deposits with the related check registers. 

II. THE AUGUST 1, 1996 INCIDENT

 On August 1, 1996, East received $2,650 in cash from Ted 

Covington Sales. The receipt for this amount was noted on sale 

award document numbered 147624 bearing East's initials, but the 

corresponding entry to the check register indicated payment by 

check, credited to sale award document numbered 147470. The 

August 1 check register recorded a cash payment of $2,650 

received from Russell Auto. However, Russell's receipt shows a 

check number. The bank deposit on that day equaled the total 

amount shown on the check register, but reflected a cash deposit 

of $2,650, not $5,300. 

 The Commonwealth argues that the evidence supports a finding 

that East received two cash payments of $2,650 each, one from 

Covington and one from Russell, that she falsified the check 

register, embezzled $2,650 cash, and placed the remaining $2,650 

cash for deposit. The evidence fails to support this 

construction. It appears plainly from the receipts given 

Covington and Russell on their respective sale awards that 

Covington paid cash and Russell paid by check. Thus, only $2,650 

was received in cash and that cash was deposited. The evidence 

proves no more than an error in recording the form of the 

payments on the check register. This conclusion is verified by 

the fact that the amount deposited in the bank equaled the total 
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amount called for by the check register. The evidence fails to 

prove that an embezzlement occurred on August 1, 1996. 

III. THE FEBRUARY 26-27, l997 INCIDENT

 On the afternoon of February 26, 1997, June Hodge received 

$687.45 in cash from Timothy Sauls. She testified that she 

placed this payment in the safe. However, this cash was not 

included in the bank deposit made by East the next day. The 

comptroller could not reconcile the February 26, 1997 batch of 

check registers with the batch of deposits made on February 27, 

1997. When questioned, East told the comptroller to throw away 

the check register reflecting the $687.45 receipt. An internal 

audit was made. On April 18, 1997, four days after the employees 

of the cashier's office were notified that the police would 

investigate the missing cash, the Assistant Administrator of 

Auction received in inter-office mail some paperwork concerning 

Sauls' purchase of surplus property and an envelope containing 

$687.45. No evidence disclosed the origin of the package or how 

long it had been circulating through the inter-office mail 

system. 

 The Commonwealth argues that East's suggestion that the 

comptroller throw away the check register was an effort to 

destroy evidence of the $687.45 receipt, that this was an effort 

by East to cover up the existence of that sum, and that this 

effort disclosed guilty knowledge and was proof that East had 

misappropriated the money. The record does not reveal all the 

circumstances or the full context in which East made that 
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suggestion. It was bad advice. It proposed a violation of the 

agency's accounting system and an inappropriate solution to the 

accounting discrepancy. However, that suggestion, standing 

alone, is insufficient to prove that East took the money. No 

other evidence establishes that she had any contact with the 

money or even knew of its existence. The evidence fails to prove 

that East misappropriated the $687.45. 

IV. THE MARCH 6, 1997 INCIDENTS

 On March 6, 1997, East received a $3,050 cash payment from 

Anthony Williams and a $3,550 cash payment from Walter Tally. 

The check registers and deposit records of March 6 and March 7 

reflect neither the receipt nor the deposit of those payments. 

East made the March 6 and 7 bank deposits. 

 East personally received the payments from Williams and 

Tally. Their receipts bear her initials. However, despite her 

duty to make corresponding entries in the check register, no 

entries were made. She prepared and made the deposits for March 

6 and 7. The funds from Williams and Tally were not included in 

those deposits. East argues that some other person may have 

destroyed the check register entries and may have misappropriated 

the cash. However, it strains credulity to suppose that upon 

making the bank deposits, East would have overlooked the absence 

of $6,600 in cash that she herself had just taken in. Thus, the 

evidence is sufficient to prove that East embezzled the $6,600 

cash that she had received from Williams and Tally. 
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CONCLUSION

 We reverse the convictions for charges relating to the 

August 1, 1996 and February 26-27, 1997 incidents and order those 

charges dismissed. We affirm the judgment of the trial court 

convicting East of two embezzlements on March 6, 1997. 

 Affirmed in part 

and reversed and dismissed in part.
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Benton, J., concurring in part and dissenting in part. 

 I concur in the judgment reversing the convictions for 

embezzlement arising out of the incidents on August 1, 1996 and 

February 26-27, 1997. I dissent because I would also reverse the 

conviction for embezzlement arising out of the incidents on March 

6, 1997. The evidence proved that the cashier's office lacked 

internal accounting controls. Because of the lack of those 

controls, the evidence was insufficient to prove that Cynthia 

East committed an embezzlement on March 6, 1997. 

 A cashier, who worked in the office with East, was a witness 

for the Commonwealth. Explaining the procedures in place at the 

time of these events, she testified that generally "[w]e get the 

[bank] deposit ready about 12:30" on the day the payments are 

received in the office. The cash and checks that had been 

received in the morning and that comprised the funds to be 

deposited were "placed in the safe," which typically remained 

open during business hours. Those funds were "deposited the next 

day." The cashier also testified that occasionally cash received 

in the afternoon "went into the safe . . . for deposit on the 

next day." Although East typically prepared the bank deposit 

form for these transactions, the other cashier prepared the 

deposit if East was busy performing other tasks. 

 No evidence proved who prepared the deposit slips for the 

deposits made on March 6 and 7, 1997. Furthermore, the record 

does not establish the amount of the bank deposit for March 6 and 

March 7. Thus, the trier of fact could not conclude that East 
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prepared those deposits. Moreover, the trier of fact could not 

have concluded that the absence of the sum of $6,600 on March 6 

or 7 would have been immediately obvious to East, if she did in 

fact prepare the deposit slip on that day, or to the other 

cashier, who may have prepared the deposit. The record proved 

that some of the deposits were for substantial sums of money -- 

for example, $330,640 was deposited on February 27 and larger 

sums were deposited on other days. 

 The evidence proved that a check register was prepared 

whenever money was received by a cashier. The check register was 

a paper copy of a form that could be displayed on a computer 

monitor and printed after information was typed onto the form. 

This form could be accessed by the cashiers from their computer 

terminals. Typically, transactions were entered on the form by 

typing the necessary information on the computer's keyboard when 

the form appeared on the monitor. The cashier would then cause 

the computer to generate a paper copy of the form and data shown 

on the monitor. 

 The cashier testified as follows concerning the system: 

Q So anybody with access to the computer 

system could pull up that register and enter 

in the code? 

A Yes. 

Q When you are doing it on the screen, you 

also type in your name as the one preparing 

that particular register? 

A Yes. 
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Q You didn't have any kind of password in 

order to enable you to enter in the name? 

A No. 

Q So if you wanted to, you could have 

entered instead the name of June Hodge, the 

name John Doe? 

A Yes. 

Q Or Cindy East? 

A Yes. 

Q If you pulled up work that had already 

been done on the screen for a register, it 

was possible, it would have been possible to 

type over some of the stuff that you had 

already done, or delete some of the stuff you 

had already done and type other information; 

that would have been possible? 

A Yes. 

Q And then if you had printed out a hard 

copy of that, it would have showed the new 

work that you substituted for the old work 

while the old work was still intact on that 

register? 

A Say that again. 

Q If you had pulled up a ledger sheet that 

had already be[en] done at the screen-- 

A Uh-huh. 

Q --and you type in some different 

information 

THE COURT: Are you talking about this? 

[DEFENSE ATTORNEY]: Yes, one of those. 

THE COURT: The deposit and check register? 

[DEFENSE ATTORNEY]: Yes, the deposit and 

check register. 
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Q If you pulled that up on the screen, one 

that you had already done, and then you typed 

in some different information, for example, 

instead of Russell Auto-Truck Parts as payor, 

and you typed in Covington Sales, but you 

left everything else on the register the 

same, if you had printed a copy, printed a 

hard copy of what was shown on the screen, 

what you would get back is an altered 

register? 

A Yeah. 

The cashier also testified that some check registers consisted of 

the computer generated form with information handwritten in the 

appropriate spaces on the form. 

 The computer generated check register forms were not 

numbered sequentially as a receipt book might be. Furthermore, 

the accounting system contained no duplicate copies of documents, 

no verification systems, no sequential transaction numbers, or 

any other system designed to leave an accounting trail. For 

example, the person charged with reconciling the daily check 

registers with the daily bank deposits testified that "sometimes 

it might be a week later and sometimes a month later" that she 

received the bank deposit slips. She also testified that the 

Department has instituted strict internal controls since these 

events and "[w]e can't use the computer [check register] forms 

anymore." 

 The department's comptroller acknowledged that the system 

was faulty and had been changed. He testified as follows: 

Q Was there -- during the two years prior to 

April, '97, what procedure was there? Was 

there any procedure to insure that 
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information recorded on each individual check 

register was accurate? 

A No, we did not have a separate place to 

check every place for accuracy. 

Q For example, if there was nothing in place 

to check whether or not a recorded payment 

was in cash or in check, if that was 

recorded? 

A The only procedure we had in place was 

that we had a person outside of the cashier's 

office to verify that the total dollars 

listed on these registers were indeed 

deposited in the bank. 

* * * * * * * 

Q There was nothing in place to insure that 

a check register, if it were filled out on a 

particular day, went anywhere; in other 

words, if someone could take in money, 

deposit it, record it on the check register, 

get a receipt, and simply not deposit the 

money, bury the check register and it might 

never show up? 

A I guess that's a possibility. 

Q Has that changed? 

A Yes. 

Thus, even if East prepared the proper forms for the two March 6 

payments that were unaccounted for, any person having access to 

the office could have removed the money and the supporting 

documents, or changed the supporting documents, without 

detection. 

 When the Commonwealth relies upon circumstantial evidence to 

prove the guilt of the accused, the following standard is 

applicable: 
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 All necessary circumstances proved must be 

consistent with guilt and inconsistent with 

innocence. It is not sufficient that the 

evidence create a suspicion of guilt, however 

strong, or even a probability of guilt, but 

must exclude every reasonable hypothesis save 

that of guilt. To accomplish that the chain 

of circumstances must be unbroken and the 

evidence as a whole must be sufficient to 

satisfy the guarded judgment that both the 

corpus delicti and the criminal agency of the 

accused have been proved to the exclusion of 

any other reasonable hypothesis and to a 

moral certainty. 

Webb v. Commonwealth, 204 Va. 24, 34, 129 S.E.2d 22, 29 (1963). 

 The evidence in the record does not exclude the hypothesis 

that East collected the two payments on March 6, that she placed 

them in the open safe to be later tallied for deposit, and that 

the money and attached documents were removed from the safe 

before the deposit slip was prepared. The absence of a 

controlled accounting system leaves in doubt (1) whether East or 

some other person removed the cash and the corresponding check 

register for those cash payments or (2) whether someone created 

new check registers identifying other payors of the cash. The 

Commonwealth must prove beyond a reasonable doubt that East 

wrongfully and fraudulently converted the missing money. See

Waymack v. Commonwealth, 4 Va. App. 547, 549, 358 S.E.2d 765, 766 

(1987). When evidence is equally susceptible to two 

interpretations, one of which is consistent with the innocence of 

the accused, the trier of fact cannot arbitrarily adopt that 
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interpretation which incriminates the accused. See Littlejohn v. 

Commonwealth, 24 Va. App. 401, 411, 482 S.E.2d 853, 858 (1997). 

 For these reasons, I would reverse all the convictions.