COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

JAMES S. SHAW 

 MEMORANDUM OPINION* BY 

v. Record No. 2876-98-1 JUDGE WILLIAM H. HODGES 

 MAY 16, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Randolph T. West, Judge 

Charles E. Haden for appellant. 

H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 *

 Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication. 

 James S. Shaw, appellant, appeals his conviction for 

embezzlement. Appellant argues that the evidence was insufficient 

to support the conviction, and, therefore, the trial court erred 

in denying his motion to strike the evidence. Finding no error, 

we affirm. 

 "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). 
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 In this light, the evidence proved that appellant worked at 

a bagel bakery as a night shift and opening manager from August 

1997 through March 1998. In March 1998, the store's general 

managers discovered that large false over-rings were being 

performed on the cash register during the period of appellant's 

employment. The over-rings were being performed with the use of 

appellant's magnetic swipe card or use of an access code 

assigned to him. The over-rings occurred only during 

appellant's shifts and ceased upon his separation from 

employment with the store. No other employee consistently 

shared the same schedule with appellant. 

 The general managers discovered the false entries by 

examining daily end-of-day reports. It was the closing 

manager's responsibility to program the store's computer to 

generate these reports at closing so that the report would be 

ready for the opening manager to review the next morning. The 

opening manager counted the money in the drawer at shift 

changes, and mid-day, and initialed the end-of-day reports. The 

over-rings would subtract the over-ring amount from the balance 

of total sales for the day. If the over-ring amount was not 

taken from the cash in the drawer, the total cash would have 

been greater than the reported total sales by the amount of the 

over-ring. No deposits were greater than the reported balance 

totals. 
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 Appellant testified that he would often enter an over-ring 

to obtain price quotes for phone inquiries, but denied taking 

any money. Amy Damron, a defense witness, also testified that 

she and others would use appellant's card for these phone 

inquiries, as well as other transactions, though she stated this 

occurred only in appellant's presence. The general manager, 

however, testified that this information could be obtained by a 

much simpler process of merely entering the order and voiding it 

on the screen before the transaction was completed. This 

process would not require a magnetic swipe card or access code, 

nor would it affect the day's accounting of total sales. 

 "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). "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). The trier of fact is not 

required to accept a party's evidence in its entirety, see

Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 

(1986), but is free to believe and disbelieve in part or in 

whole the testimony of any witness. See Rollston v. 
- 4 - 

Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991). 

Therefore, the trial court was not required to accept 

appellant's testimony denying he committed the embezzlement. 

Nor was the trial court required to be persuaded by the 

testimony of Damron. 

 "Opportunity is always a relevant circumstance . . . and, 

when reinforced by other incriminating circumstances, may be 

sufficient to establish criminal agency beyond a reasonable 

doubt." Christian v. Commonwealth, 221 Va. 1078, 1082, 277 

S.E.2d 205, 208 (1981). "Whether the Commonwealth relies upon 

either direct or circumstantial evidence, it is not required to 

disprove every remote possibility of innocence, but is, instead, 

required only to establish guilt of the accused to the exclusion 

of a reasonable doubt." Bridgeman v. Commonwealth, 3 Va. App. 

523, 526-27, 351 S.E.2d 598, 600 (1986). 

 Here, the evidence proved that the embezzlement occurred 

only when appellant was working and that it was concealed by use 

of the over-ring method performed by the use of appellant's 

magnetic swipe card or access code. Although evidence existed 

that others used his card or access code, no other employee 

consistently worked the same days of the week or shared the same 

shift changes. Appellant had access to the money because, as 

shift manager, he reviewed the balance reports and counted the 

money. Further, the embezzlement ceased when appellant's 
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employment ceased. From this evidence, the trial court was 

entitled to conclude that appellant was the criminal agent. 

 The Commonwealth presented sufficient evidence to prove, 

beyond a reasonable doubt, that appellant was guilty of 

embezzlement. Accordingly, we affirm appellant's conviction for 

embezzlement. 

 Affirmed.