Patricia Ruth Simerson v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Senior Judge Willis
Argued at Chesapeake, Virginia
PATRICIA RUTH SIMERSON
MEMORANDUM OPINION * BY
v. Record No. 0637-02-1 JUDGE JERE M. H. WILLIS, JR.
MARCH 18, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ACCOMACK COUNTY
Glen A. Tyler, Judge
Patrick A. Robbins for appellant.
Paul C. Galanides, Assistant Attorney General
(Jerry W. Kilgore, Attorney General;
Linwood T. Wells, Jr., Assistant Attorney
General, on brief), for appellee.
Patricia Ruth Simerson was convicted in a bench trial of
embezzlement, in violation of Code § 18.2-111. On appeal, she
contends the evidence was insufficient to support her
conviction. We affirm the judgment of the trial court.
BACKGROUND
"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).
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
On May 17, 2001, Simerson worked the evening shift at a
convenience store owned and operated by J.R. Pikulsky. Pikulsky
testified that an unexplained $400 cash refund was made that
night. Security cameras connected to the registers recorded
Simerson performing that refund transaction at 8:54 p.m. with no
customer present. Approximately ninety minutes later, she
removed from the register the paper tape that recorded the
register's transactions and replaced it with a new one.
Pikulsky explained that store procedures required Simerson to
receive management approval for the refund and to place a signed
receipt for the refund with the other paperwork from the shift.
She did neither. The evening's paperwork included no receipt
relating to the refund Simerson performed. The paper cash
register tape she removed had not been placed with the evening's
paperwork, as required, and was never recovered. Pikulsky noted
the register tape did not need to be changed when Simerson
removed it because it had been changed earlier that evening. He
explained that the cash drawer would have been over in the
amount of $400 had the cash reflected in the refund entry not
been removed from the drawer. Instead, the drawer was short
approximately $45.
Simerson denied taking any money from the cash register.
When first charged, she admitted to the police that she had
changed the cash register tape, but denied making any refund
over $200. However, at trial, she testified that she had
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performed the $400 refund transaction to correct an earlier
mistake. She testified that she had earlier rung up an
erroneous cigarette sale and that the refund entry was to
correct that error. However, the evidence established that the
entry to void a transaction was different from the entry
reflecting a refund, the latter specifically requiring
management approval and a supporting receipt.
The trial court found Simerson's explanation incredible,
finding it illogical and unbelievable that Simerson would not
have remembered a $400 mistake when she spoke with the police
two days after the incident. The court also noted that Simerson
had changed the secondary register tape unnecessarily and that
neither the tape nor the transaction receipt had been lodged
where required.
Analysis
Simerson argues that "there are too many weak areas in the
Commonwealth's case" and that she provided a reasonable
explanation for performing the transaction.
"When a conviction is based upon circumstantial evidence,
such evidence 'is as competent and is entitled to as much weight
as direct evidence, provided it is sufficiently convincing to
exclude every reasonable hypothesis except that of guilt.'"
Hollins v. Commonwealth, 19 Va. App. 223, 229, 450 S.E.2d 397, 400
(1994) (citation omitted). "The Commonwealth need only exclude
reasonable hypotheses of innocence that flow from the evidence,
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not those that spring from the imagination of the defendant."
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29
(1993).
"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). The trial court believed the Commonwealth's
witnesses and rejected Simerson's account.
The evidence accepted by the trial court proved that
Simerson performed an apparent refund without actually refunding
money to a customer. She did so without the required management
approval. This apparent falsification coupled with the
disappearance of the money supports the finding that Simerson
took the money and used this device as a cover. Furthermore,
she removed and did not preserve as required the record of the
cash register's transactions, thus attempting to mask what she
had done. No receipt reflected a cash refund to a customer.
The Commonwealth's evidence was competent, not inherently
incredible, and fully supports Simerson's conviction.
For these reasons, we affirm the judgment of the trial
court.
Affirmed.
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