COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Elder 

Argued at Richmond, Virginia 

ANGELA MARIE PETTWAY 

 MEMORANDUM OPINION* BY 

v. Record No. 0599-97-2 JUDGE JAMES W. BENTON, JR. 

 JUNE 16, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

Herbert C. Gill, Jr., Judge 

 John E. Dodson (Gordon, Dodson & Gordon, on 

briefs), for appellant. 

 Ruth Ann Morken, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Angela Marie Pettway was convicted of embezzling funds in 

excess of two hundred dollars from her employer. See Code 

§§ 18.2-95 and 18.2-111. She contends that the evidence was 

insufficient to prove the elements of the offense beyond a 

reasonable doubt. For the reasons that follow, we reverse the 

conviction. 

 I. 

 The evidence proved that Angela Marie Pettway was employed 

as an assistant manager at a McDonald's restaurant. One of 

Pettway's duties was to periodically deposit the restaurant's 

money at the bank. The restaurant's owner required all monies 

which were to be deposited in the bank to be placed in a clear 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
- 2 - 

plastic bag and assigned a specific number. Prior to making a 

deposit, the assistant manager was required to record on a ledger 

the bag number, deposit amount, and deposit date and to initial 

the entry. The deposit was then to be placed in the outside 

deposit box at the People's Bank of Virginia. Approximately two 

days after each deposit, the bank routinely sent to the 

restaurant's office manager a deposit slip for any money 

deposited. 

 On August 5, 1996, Pettway entered on the ledger a deposit 

pursuant to the restaurant's policy. On August 9, the 

restaurant's office manager was reviewing deposit slips from the 

bank when she discovered that a deposit slip for $2,947 was 

missing. The ledger indicated that $2,947 was to have been 

deposited on August 5, by Pettway. During her search for the 

deposit, the office manager spoke with the bank manager, who said 

the bank never received the deposit. 

 The same day, the office manager called Pettway at home to 

make inquiry. Pettway said that she had been responsible for 

several deposits during the week and that she had not made one of 

these deposits, which could have been the August 5 deposit. The 

office manager testified that she later learned that the deposit 

on August 6 had been made by another person. 

 The bank manager testified and described the bank's general 

procedure for handling deposits received from the deposit box. 

She explained that the customer has a key that opens the box. 
- 3 - 

When the deposit is placed in the deposit box, it drops through a 

chute into a large bin. The door to the deposit box 

automatically locks when closed. When the bank's employees 

collect the deposits from the box inside the bank, two bank 

employees remove the contents, count the deposits, and record the 

amount. Each deposit is then processed by a teller. The bank 

manager also testified that the deposit box undergoes regular 

maintenance inspections and that she was not aware of any 

malfunctions on August 5. 

 Pettway testified she entered the deposit on the ledger, 

went to the bank on August 5, and put the money into the deposit 

box. She also testified that as she was driving on the bank's 

premises to make the deposit, she saw Robert Davis, an insurance 

broker, standing outside and waved to him. Pettway explained her 

response to the office manager's inquiry by testifying that she 

had arranged with the restaurant's manager to leave a deposit in 

the safe that same week because she had to leave work early for a 

dental appointment. She testified that another employee made 

that deposit on August 6 in her stead. 

 Davis, the insurance broker, testified that he saw Pettway 

at the bank on August 5. He testified that he was talking to a 

customer when he saw Pettway in the lane leading to the deposit 

box. However, he did not see whether she made a deposit. 

 Troy Ross, another restaurant employee, testified he also 

makes deposits at the bank for the restaurant. He testified that 
- 4 - 

in early 1996 when he was making a deposit, the bank's deposit 

box was malfunctioning. When he approached the box, he noticed 

that it was ajar. Two deposit bags had become lodged in the 

chute so as to keep the door open. He opened the door and 

slammed it closed to cause the bags to drop. 

 At the conclusion of the evidence, the trial judge convicted 

Pettway of embezzlement. 

 II. 

 To sustain a conviction for embezzlement under Code 

§ 18.2-111, the Commonwealth must prove three elements: (1) the 

accused received property by virtue of her employment for her 

employer; (2) the accused wrongfully and fraudulently converted 

the property to her own use; and (3) the value of the property 

exceeds $200. See Code § 18.2-95. The Commonwealth must prove 

beyond a reasonable doubt that the accused wrongfully and 

fraudulently converted the missing money. See Waymack v. 

Commonwealth, 4 Va. App. 547, 549, 358 S.E.2d 765, 766 (1987). 

 Where the Commonwealth relies on circumstantial evidence to 

meet its burden of proof, the following standard applies: 

 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 [this] 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 
- 5 - 

moral certainty. 

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

 The evidence regarding the bank procedures for handling 

deposits that were put in the box established only the usual 

procedures. The bank manager testified that she had no knowledge 

of what occurred on August 5. The Commonwealth failed to offer 

testimony from bank employees charged with accepting and 

accounting for deposits made on August 5, 1996. Because those 

persons had access to any money that was deposited, the proof 

failed to establish a vital link in the handling of the funds. 

The bank manager's testimony of the usual procedure was not 

sufficient to prove beyond a reasonable doubt that Pettway did 

not deposit the funds in the deposit box on August 5. The bank 

manager's testimony leaves to speculation whether the funds in 

the clear plastic bag were removed by the bank employees. 

 Furthermore, Troy Ross, another restaurant employee, 

testified that on an occasion when he made a deposit at the bank, 

he had found the deposit box jammed and ajar. Ross testified 

that he opened the box with his fingers and could have removed 

the deposit bags. His testimony proved that the box could have 

malfunctioned on August 5 and been the cause of the lost deposit. 

 When evidence is equally susceptible of two interpretations, 

one of which is consistent with the innocence of the accused, the 

trier of fact cannot arbitrarily adopt that interpretation which 

incriminates the accused. See Littlejohn v. Commonwealth, 24 Va. 
- 6 - 

App. 401, 411, 482 S.E.2d 853, 858 (1997). No evidence tended to 

prove that Pettway "attempted to conceal her alleged criminal 

activity or that she possessed the criminal intent necessary to 

sustain her conviction." Waymack, 4 Va. App. at 550, 358 S.E.2d 

at 766. In six years of her employment at the restaurant, 

Pettway had been promoted from counter personnel to assistant 

manager. When the chain of circumstances was not proved to be 

unbroken, the absence of proof that Pettway embezzled the funds 

leaves only suspicion. 

 Accordingly, we reverse the conviction and dismiss the 

indictment. 

 Reversed and dismissed.