Patricia Ruth Simerson v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: March 18, 2003
• Docket: 0637021
• Status: Unpublished

Opinion

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

- 2 - 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,

- 3 - 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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