Preston Fisher v. Commonwealth ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Benton and
Senior Judge Overton
Argued at Alexandria, Virginia
PRESTON FISHER
MEMORANDUM OPINION * BY
v. Record No. 2871-01-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
OCTOBER 22, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Janell M. Wolfe for appellant.
Leah A. Darron, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Preston Fisher (appellant) was convicted in a jury trial of
credit card theft, in violation of Code § 18.2-192(1)(a). The
sole issue raised on appeal is whether the evidence proved that
appellant intended to use, sell or transfer the victim's credit
card. For the following reasons, we affirm appellant's
conviction.
I. BACKGROUND
"When considering the sufficiency of
the evidence on appeal of a criminal
conviction, we must view all the evidence in
the light most favorable to the Commonwealth
and accord to the evidence all reasonable
inferences fairly deducible therefrom.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
The jury's verdict will not be disturbed
unless plainly wrong or without evidence to
support it."
Hucks v. Commonwealth, 33 Va. App. 168, 177, 531 S.E.2d 658, 662
(2000) (quoting Clark v. Commonwealth, 30 Va. App. 406, 409-10,
517 S.E.2d 260, 261 (1999)).
So viewed, the evidence established that Rita Jenson, a
resident of Arlington County, routinely left her Exxon credit
card in the ashtray of her Jeep. On December 11, 2000, at
approximately 7:30 p.m., a friend of Jenson's, Margaret
Bardsley, arrived at Jenson's home and saw Jenson's Jeep parked
in the driveway with someone inside. As Bardsley approached
Jenson's house, a man exited the Jeep and walked past her toward
a wooded area.
When Jenson answered the door, Bardsley asked her if she
had someone working on her car. Jenson said no and called the
police and her neighbor, Rick Sansalone, who immediately drove
around the neighborhood to look for the person who had been in
Jenson's car. Within two minutes and not far from Jenson's
home, Sansalone saw appellant, who met the description given by
Bardsley. When Sansalone tried to talk to him, appellant
continued to walk away. Sansalone returned to Jenson's street
and spoke with Officer Scott Larsen. Larsen followed Sansalone
to appellant's location and attempted to stop him. Appellant
ran from the officer until the officer blocked his path
approximately two hundred feet from the initial encounter. As
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Larsen approached appellant and before he could ask him any
questions, appellant "stated to [Larsen] that [Larsen] should
search him, he didn't have anything on him. He basically threw
his hands up in the air."
Jenson testified that the car's glove compartment, center
console, ashtray and driver's side door were closed when she
last left her car. Later, the door was open, the car had been
riffled and change and her Exxon credit card had been removed
from the ashtray. Additionally, she testified she did not know
appellant and did not give him or anyone else permission to take
or use her Exxon credit card. Appellant conceded that the
evidence was sufficient to establish that he was the individual
who took the items from the car.
The jury found appellant guilty of credit card theft.
II. SUFFICIENCY OF THE EVIDENCE
"This Court does not substitute its judgment for that of
the trier of fact." Hunley v. Commonwealth, 30 Va. App. 556,
559, 518 S.E.2d 347, 349 (1999) (citing Cable v. Commonwealth,
243 Va. 236, 239, 415 S.E.2d 218, 220 (1992)). "Intent may, and
most often must, be proven by circumstantial evidence and the
reasonable inferences to be drawn from proven facts are within
the province of the trier of fact." Summerlin v. Commonwealth,
37 Va. App. 288, 297, 557 S.E.2d 731, 736 (2002) (citing Fleming
v. Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183
(1991)).
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Specific intent may be shown by
circumstances, including by a person's
conduct or by his statements. The
inferences to be drawn from proven facts, so
long as they are reasonable, are within the
province of the trier of fact. The mere
possibility that the accused might have had
another purpose than that found by the fact
finder is insufficient to reverse a
conviction on appeal.
Hancock v. Commonwealth, 12 Va. App. 774, 782-83, 407 S.E.2d
301, 306 (1991) (internal citations omitted). "The Commonwealth
need only exclude reasonable hypotheses of innocence that flow
from the evidence, 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).
Appellant contends that the evidence is insufficient to
prove he intended to use, sell or transfer Jenson's Exxon credit
card. We disagree.
Code § 18.2-192(1)(a) provides:
A person is guilty of credit card or credit
card number theft when . . . [h]e takes,
obtains or withholds a credit card or credit
card number from the person, possession,
custody or control of another without the
cardholder's consent or who, with knowledge
that it has been so taken, obtained or
withheld, receives the credit card or credit
card number with intent to use it or sell
it, or to transfer it to a person other than
the issuer or the cardholder . . . .
"The taking [of a credit card] must be with the intent to use,
sell, or transfer the card to [a] person other than the issuer
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or the cardholder." Darnell v. Commonwealth, 12 Va. App. 948,
954-55, 408 S.E.2d 540, 543-44 (1991).
[The term "withhold" from the statute]
must . . . import something more than mere
retention, for mere retention could be
consistent with innocent intent. The
retention must be accompanied by an intent
to deprive the owner of possession and to
use the card, or to sell it, or to transfer
it to a person other than the issuer or the
cardholder.
Cheatham v. Commonwealth, 215 Va. 286, 290, 208 S.E.2d 760, 763
(1974).
Appellant relies on Cheatham and Wilder v. Commonwealth,
217 Va. 145, 225 S.E.2d 411 (1976), for the proposition that the
"mere possession of a stolen credit card is not sufficient to
state the offense of credit card theft." Wilder, 217 Va. at
147, 225 S.E.2d at 413. While that is an accurate statement of
the law, it does not control the outcome of this case. The
evidence in Cheatham showed only that appellant had in his
possession a stolen credit card "that he had found . . . in the
1600 block of Jacqueline Street in Richmond." Cheatham, 215 Va.
at 287, 208 S.E.2d at 761. There was no other evidence in that
case. The police found the stolen credit card in Cheatham's
possession when they arrested him on a charge unrelated to the
original robbery of the credit card owner, and no evidence
identified him as involved in the robbery. The Supreme Court
relied in its ruling on the fact that "Cheatham was not charged
with the . . . robbery, and the Commonwealth does not contend
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that he participated in that crime. Cheatham was charged with
the statutory offense of credit card theft for withholding [the]
credit card after it came into his possession." Id. at 288, 208
S.E.2d at 762. In this case, appellant conceded that the
evidence was sufficient to establish that he was the individual
who took the items from the car.
Wilder is also inapposite to the facts of the instant case.
Wilder was an appeal "limited . . . to a consideration of
whether the original indictment was sufficient to charge the
accused with the commission of the crime [of credit card
theft]." 217 Va. at 146, 225 S.E.2d 412. The indictment was
found to be invalid because the language used charged only
possession and failed to allege the requisite intent to use,
sell, or transfer the card.
In the instant case, the evidence shows more than mere
unexplained possession or retention of another's credit card.
Appellant was identified as the person who took the items from
Jenson's car after ransacking the glove compartment, ashtray and
center console. The jurors could reasonably infer that
appellant stole the Exxon credit card along with the money and
other items from Jenson's car with the intent to use, sell or
transfer it. No innocent purpose is evident from this set of
facts. The inferences to be drawn from his conduct were clearly
within the province of the jury. See Hancock, 12 Va. App. at
782-83, 407 S.E.2d at 306.
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For the foregoing reasons, we affirm appellant's conviction
of credit card theft.
Affirmed.
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Benton, J., dissenting.
Mere proof that an accused possessed a credit card is
insufficient to establish a violation of Code § 18.2-192(1)(a).
See Wilder v. Commonwealth, 217 Va. 145, 147, 225 S.E.2d 411,
413 (1976). To sustain a conviction, the evidence must prove
that the accused took it with "an intent to use the card, or to
sell it or to transfer it to a person other than the issurer or
the cardholder." Id. See also Cheatham v. Commonwealth, 215
Va. 286, 290, 208 S.E.2d 760, 763 (1974); Darnell v.
Commonwealth, 12 Va. App. 948, 955, 408 S.E.2d 540, 543 (1991).
"It is elementary that where, as here, an indictment
charges an offense which consists of an act combined with a
particular intent, proof of the intent is essential to
conviction." Patterson v. Commonwealth, 215 Va. 698, 699, 213
S.E.2d 752, 753 (1975). Not only must proof of the intent rise
above "surmise or speculation," id., the Due Process Clause of
the Constitution requires the prosecution to prove the requisite
intent beyond a reasonable doubt. Fiore v. White, 531 U.S. 225,
228-29 (2001) (holding that the Constitution requires proof
beyond a reasonable doubt of every element necessary to
establish the crime charged); McKeon v. Commonwealth, 211 Va.
24, 26-27, 175 S.E.2d 282, 284 (1970).
The evidence proved that a man entered an unlocked motor
vehicle at night and riffled the interior of the vehicle. He
opened the glove box, the center console, and the ashtray. The
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man removed the contents of the ashtray, which included an Exxon
credit card, loose change, and other items. The evidence does
not indicate whether items were removed from the glove box or
the center console. Minutes later, when the police detained
Preston Fisher about a mile away from the vehicle, a witness
identified Fisher by his clothing as the person seen riffling
the interior of the vehicle. Fisher did not have the Exxon
card. Although the Exxon credit card was found under a pile of
leaves within a visual distance from the place Fisher was
detained, it contained no identifiable fingerprints. Fisher
made no statements from which an inference can be drawn
concerning intent. Indeed, he denied he had taken any items
from the vehicle.
When the issue on appeal concerns the sufficiency of the
evidence to prove beyond a reasonable doubt the required
statutory element of intent, "the appellate court is . . .
obligated to set aside the trial court's judgment when it is
contrary to the law and the evidence and, therefore, the
judgment is plainly wrong." Tarpley v. Commownealth, 261 Va.
251, 256, 542 S.E.2d 761, 763 (2001). Theft of property from a
vehicle does not ipso facto bespeak an intent other than to
deprive the owner of use of the property. Viewed in the light
most favorable to the Commonwealth, the evidence in this record
leaves only to speculation and suspicion that the thief had some
other intent. Speculation and suspicion are insufficient to
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prove intent, Adkins v. Commonwealth, 217 Va. 437, 440, 229
S.E.2d 869, 871 (1976), and are never enough to sustain a
conviction. Guill v. Commonwealth, 255 Va. 134, 139, 495 S.E.2d
489, 492 (1998); Hyde v. Commonwealth, 217 Va. 950, 955, 234
S.E.2d 74, 78 (1977). The evidence in this case concerning the
requisite intent amounts to unsupported inferences, mere
probabilities, and speculation; it is insufficient to sustain
the Commonwealth's burden of proving beyond a reasonable doubt
Fisher intended to use, sell, or transfer the card. Tarpley,
261 Va. at 257, 542 S.E.2d at 764; Moore v. Commonwealth, 254
Va. 184, 186, 491 S.E.2d 739, 740 (1997). See also Smith v.
Commonwealth, 185 Va. 800, 819, 40 S.E.2d 273, 282 (1946).
I, therefore, dissent.
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