Melinda May Mendez v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Senior Judge Cole
Argued at Richmond, Virginia
MELINDA MAY MENDEZ
MEMORANDUM OPINION * BY
v. Record No. 0946-99-2 JUDGE JERE M. H. WILLIS, JR.
JULY 18, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Frank K. Friedman (Donald D. Long; Woods,
Rogers & Hazlegrove, P.L.C., on briefs), for
appellant.
Stephen R. McCullough, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
On appeal from her conviction of grand larceny, in
violation of Code § 18.2-95, Melinda May Mendez contends that
the evidence was insufficient to support her conviction. We
affirm the judgment of the trial court.
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.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
Mr. and Mrs. Ayad Al-Hamdani employed Mendez on Wednesdays
and Thursdays for six weeks as a maid. At noon on Thursday,
May 14, 1998, Mendez arrived at the Al-Hamdanis' home just as
Mrs. Al-Hamdani was leaving to run errands. When Mrs.
Al-Hamdani returned at 2:30 p.m., Mendez was gone. She had not
completed her work, and cleaning supplies were left in the
hallway. Mrs. Al-Hamdani's desk was in disarray.
When Mr. Al-Hamdani arrived home, he checked his desk and
found missing a black pouch containing $4,200 in cash. He
testified that he had seen the pouch containing the money in the
desk drawer within forty-eight hours prior to May 14. Only he
knew of the presence of the cash, because he was saving it to
buy a birthday present for his wife.
Mrs. Al-Hamdani attempted to call Mendez. Although she
called repeatedly, she received no answer. The police were also
unable to locate Mendez.
Mendez denied taking the money. She testified that she had
left the Al-Hamdanis' home about 1:45 p.m. because she was ill
and had left a note explaining her early departure. However,
the Al-Hamdanis found no note.
From the time Mr. Al-Hamdani last saw the money to the
discovery of the loss, only family members and Mendez had been
in the home. The house was usually locked when the family was
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away, the only exception being the time from Mendez's departure
to Mrs. Al-Hamdani's return on May 14. The Al-Hamdanis'
twelve-year-old daughter did not have friends in during the
week. There was no evidence of forced entry.
Mendez contends that the Commonwealth failed to prove her
guilt, because the evidence failed to exclude every reasonable
hypothesis consistent with innocence. See Vaughan v.
Commonwealth, 7 Va. App. 665, 675, 376 S.E.2d 801, 807 (1989).
She argues that another person could have come into the house
and taken the money before or after she left, that workmen were
in the neighborhood that week, and that a friend of the family
could have entered and taken the money. None of these
hypotheses is supported by the evidence. Only forty-five
minutes elapsed between Mendez's departure and Mrs. Al-Hamdani's
return. Nothing in the house was disturbed except Mrs.
Al-Hamdani's desk.
Mendez explained that she was ill, that she left the
Al-Hamdanis' home because of her illness, and that she did not
answer her phone because she was sleeping. The trial court,
however, was not required to accept Mendez's explanation of the
events. "In its role of judging witness credibility, the [trial
court] is entitled to disbelieve the self-serving testimony of
the accused and to conclude that the accused is lying to conceal
[her] guilt." Marable v. Commonwealth, 27 Va. App. 505, 509-10,
500 S.E.2d 233, 235 (1998). In judging her credibility, the
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trial court was entitled to consider the Commonwealth's
impeachment evidence, disclosing that Mendez attended an aunt's
birthday party on the night of May 14, that her behavior on May
14 contrasted with her usual routine, and that she had been
convicted of seven felonies and a misdemeanor involving lying,
cheating, or stealing.
The dissent argues that this case is controlled by Simmons
v. Commonwealth, 219 Va. 181, 247 S.E.2d 359 (1978). Simmons
was the night operator of his employer's service station,
running the station between 6:00 p.m. and its 9:00 p.m. closing.
Two daytime employees also had keys to the station. The
employer left the station at 5:30 p.m. on the evening in
question and did not return until 7:30 a.m. the next morning,
when he found the station unlocked and unattended with sundry
items of cash and merchandise missing. Simmons could not be
located. Reversing Simmons' conviction for embezzlement, the
Supreme Court held that the evidence proved only that he had the
opportunity to steal the missing items and that he apparently
fled, and was thus insufficient to prove that he was the thief.
This case is distinguishable from Simmons. In Simmons, the
evidence did not prove whether Simmons had closed and locked the
station properly. It did not prove how the station came to be
unlocked. It established an all night window from 9:00 p.m. to
7:30 a.m. when a thief other than Simmons could have gained
access. It established that two other employees had keys.
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In this case, the evidence, taken in the light most
favorable to the Commonwealth, proved that only members of the
family and Mendez were in the house between the time Mr.
Al-Hamdani last saw the money and the time the loss was
discovered. The time from Mrs. Al-Hamdani's departure to her
return was brief, and during at least most of that time, with
the exception of only forty-five minutes, Mendez was on the
premises. There was no evidence that anyone else entered the
house during that time. Thus, the evidence in this case not
only proved that Mendez had the opportunity to steal the money
and thereafter behaved furtively and in a manner suggestive of
guilt, but also excluded anyone else as a possible thief.
The judgment of the trial court is affirmed.
Affirmed.
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Elder, J., dissenting.
Because I believe the evidence fails to exclude all
reasonable hypotheses of innocence flowing from it, I would
reverse the conviction of Mendez (appellant). Therefore, I
respectfully dissent.
No direct evidence linked appellant to the crime or even
the desk from which the money was taken. No one saw her take
the money, and her fingerprints were not recovered from the
desk.
Where the evidence is entirely circumstantial, "all
necessary circumstances proved must be consistent with guilt and
inconsistent with innocence and must exclude every reasonable
hypothesis of innocence. . . . The circumstances of motive,
time, place, means, and conduct must all concur to form an
unbroken chain which links the defendant to the crime beyond a
reasonable doubt." Bishop v. Commonwealth, 227 Va. 164, 169,
313 S.E.2d 390, 393 (1984).
[I]f facts are susceptible to two different
interpretations, "one of which is consistent
with the innocence of the accused, the [fact
finder] cannot arbitrarily adopt the
interpretation which incriminates him."
Instead, "[t]he interpretation more
favorable to the accused should be adopted
unless it is untenable under all the facts
and circumstances of the case."
Varker v. Commonwealth, 14 Va. App. 445, 447, 417 S.E.2d 7, 8
(1992) (quoting Williams v. Commonwealth, 193 Va. 764, 772, 71
S.E.2d 73, 77 (1952)).
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Here, the circumstantial evidence, viewed in the light most
favorable to the Commonwealth, established that Mr. Al-Hamdani
had last seen the pouch containing the money some forty-eight
hours before he discovered it missing on the afternoon of May
14. The majority states that "[t]he house was always locked
when the family was away, the only exception being the time from
[appellant's] departure to Mrs. Al-Hamdani's return on May 14."
However, Mrs. Al-Hamdani testified merely that the house was
"usually . . . locked," and said that, on May 14, she had the
front door open . . . with a little stop" before appellant came
to work that day. Although appellant arrived before Mrs.
Al-Hamdani departed, the front door was unlocked when Mrs.
Al-Hamdani returned about two-and-one-half hours later;
appellant was not present at that time; and the house had been
unlocked and unoccupied for at least forty-five minutes. Mrs.
Al-Hamdani testified that no one other than she, Mr. Al-Hamdani,
her twelve-year-old daughter, infant son, and appellant had been
in the house that week. However, Mrs. Al-Hamdani did not
testify that she had been home that entire time and, as outlined
above, the evidence established that, on May 14, the front door
was unlocked while no one was at home.
Other evidence left open the reasonable hypothesis that the
money could have been taken by someone with access to the house
even when it was locked. Mrs. Al-Hamdani's twelve-year-old
daughter resided in the house but did not testify, leaving the
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reasonable hypothesis that she could have taken the money. The
evidence also established that the Al-Hamdanis' neighbors had
keys to the house and could have entered even at a time when the
door was locked.
The trial court focused on the credibility of appellant's
statements and whether she left a note explaining her hasty
departure on May 14. Although the trial court clearly was
entitled to disregard appellant's testimony about the note, this
rejection did not constitute affirmative evidence of appellant's
guilt. See Tucker v. Commonwealth, 18 Va. App. 141, 144, 442
S.E.2d 419, 421 (1994). Appellant's failure to return to work,
respond to telephone calls, or collect her pay for the portion
of the week she did work was suspicious but was not affirmative
evidence of guilt. The remaining evidence, viewed in the light
most favorable to the Commonwealth, did not exclude the
reasonable hypothesis that Mrs. Al-Hamdani's daughter, the
neighbors with the keys, or someone other than appellant entered
the house and took the pouch and money in the forty-eight hours
since Mr. Al-Hamdani had last seen it.
The facts here closely resemble those in Simmons v.
Commonwealth, 219 Va. 181, 247 S.E.2d 359 (1978), in which the
Court held the evidence insufficient as a matter of law to prove
criminal agency. See id. at 183, 247 S.E.2d at 360. In
Simmons, the defendant was a gas station attendant employed to
work the 6:00 p.m.-to-9:00 p.m. shift. See id. at 182, 247
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S.E.2d at 359. Two other employees worked from 7:00 a.m. to
6:00 p.m. and had keys to the station. See id. On the evening
in question, the owner departed the station at 5:30 p.m. and
received no answer when he telephoned the station at 9:05 p.m.
that evening. See id. When the owner arrived the next morning,
he discovered that the station's doors were unlocked and that
$100 in cash and various tools and merchandise were missing, but
he admitted that he "had not taken a physical inventory for
several days." Id. at 182, 247 S.E.2d at 359-60. Although the
defendant, who had worked six days prior to the theft, was owed
$70 in wages, the police officer investigating the theft was
unable to locate him for a period of at least six months. See
id. at 182, 247 S.E.2d at 360.
The Court held, "[a]ll that reasonably may be inferred from
the evidence is that [the defendant] had the opportunity to
commit the crime and that he fled at a time when wages were
payable to him." Id. at 183, 247 S.E.2d at 360. This
"opportunity and subsequent flight, while sufficient to arouse
strong suspicion, [were] not themselves sufficient to support
[the defendant's] conviction." Id. (emphasis added).
Therefore, assuming appellant's failure to report to work or to
answer her phone could be considered flight, even this evidence
was insufficient to prove she took the money.
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Therefore, I would hold the circumstantial evidence does
not exclude all reasonable hypotheses of appellant's innocence,
and I respectfully dissent.
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