Mildred Baldwin v. Commonwealth of Virginia ( 2011 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Petty, Alston and Senior Judge Coleman
Argued by teleconference
MILDRED BALDWIN
MEMORANDUM OPINION * BY
v. Record No. 2262-10-4 JUDGE ROSSIE D. ALSTON, JR.
NOVEMBER 15, 2011
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Lisa B. Kemler, Judge
Paul E. Pepper, Deputy Public Defender (Office of the Public
Defender, on brief), for appellant.
Susan M. Harris, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Mildred Baldwin (appellant) appeals her convictions for credit card theft in violation of
Code § 18.2-192(1)(a) and credit card fraud in violation of Code § 18.2-195. On appeal,
appellant argues that the trial court erred in finding her guilty of credit card theft and credit card
fraud, claiming that the evidence did not establish venue in the City of Alexandria. Finding no
reversible error, we affirm.
I. Background 1
Appellant was employed as a comptroller at Calvert Jones Company, located on Edsall
Road in Alexandria, Virginia. Appellant’s duties included management of the “books and
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
As the parties are fully conversant with the record in this case and because this
memorandum opinion carries no precedential value, this opinion recites only those facts and
incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this
appeal.
records” of the company. Appellant was laid off on October 19, 2009. On this date, a human
resources employee and George Petty, the chief financial officer of the company, informed
appellant that her employment was terminated, and Petty instructed appellant to pack up her desk
and leave. Petty did not supervise appellant as she packed up her office and left the premises.
During appellant’s employment with the company, she had held a company credit card
issued by Bank of America in the name of another employee. Appellant was authorized to use
the credit card for business purposes during her employment. On February 19, 2010, Petty
became aware that appellant was still using the credit card and that appellant had changed the
billing statement address for the credit card from the company’s offices in Alexandria to her
home in Maryland. Petty contacted appellant and asked her to return the credit card and make
restitution to the company. Appellant responded that she could not return the credit card because
she had destroyed it. Appellant also said that she did not have the money to make restitution.
On June 14, 2010, appellant was indicted for credit card theft and credit card fraud. Prior
to trial, appellant moved to dismiss for lack of venue. Appellant argued that no act in
furtherance of the crimes of credit card theft or credit card fraud occurred in the City of
Alexandria. Following a hearing on appellant’s motion to dismiss, the trial court denied the
motion but stated that appellant could “reraise[ ] this issue after the Commonwealth has
presented its case in chief.”
Appellant was tried in a bench trial on July 23, 2010. At trial, Valerie Dunigan, a credit
card investigator for Bank of America, testified that between the issuance of the September 21,
2009 and October 21, 2009 billing statements for the credit card, the address on the account was
changed from the company’s address on Edsall Road in Alexandria, Virginia, to an address in
Waldorf, Maryland. Dunigan also testified that after October 19, 2009, none of the purchases or
transactions using the credit card were made in Virginia and that six payments had been made on
-2-
the card from November 16, 2009, to July 1, 2010. The credit card billing statements were
admitted into evidence.
Petty also testified at trial. Petty described generally the various legitimate and
illegitimate uses of a company credit card, including the possible legitimate use of the credit card
for nonbusiness purchases or to receive a loan, with the permission of the company. Petty
testified that he had not authorized nonbusiness use of the credit card by appellant or a loan to
appellant using the credit card, but acknowledged that it was possible that she could have
received authorization from another employee. Petty testified that appellant did not have
permission to take or use the credit card when her employment was terminated on October 19,
2009.
Petty also reviewed the credit card billing statements from October 21, 2009, through
February 19, 2010. He testified that the address where the billing statements were sent in
Waldorf, Maryland, was appellant’s address. He had verified appellant’s address through payroll
records. He also testified that three charges made on the credit card before the date of
appellant’s termination were not legitimate business expenses: charges to State Farm insurance
and a Wawa convenience store in Waldorf, Maryland, made on October 15, 2009, and a charge
to a 7-Eleven convenience store in Brandywine, Maryland, made on October 18, 2009. 2 Petty
testified further that none of the charges shown by the billing statements from October 19, 2009,
to February 19, 2010, were legitimate business expenses, although he acknowledged that there
were three charges that were “at least possibly business expenses.”
Finally, Officer Sarah Smith of the City of Alexandria Police Department testified
regarding her investigation of appellant’s use of the credit card. Appellant’s written statement
2
Appellant was not charged with any crime for her use of the credit card on October 15
or 18, 2009. Her convictions in the instant case were based solely upon her use of the credit card
from October 19, 2009, to February 2010.
-3-
made after her arrest was admitted into evidence through the testimony of Officer Smith. In the
written statement, appellant stated that she accidentally removed the credit card from her desk
along with her other papers when her employment was terminated. Appellant admitted that she
used the credit card for personal expenses.
At the conclusion of the Commonwealth’s evidence, appellant moved to strike the
evidence as insufficient, arguing that the Commonwealth had not established that venue was
proper in the City of Alexandria. The trial court denied the motion. Appellant presented no
evidence, rested her case, and renewed her motion to strike in closing argument. The trial court
again denied the motion and found appellant guilty. The trial court found that the personal
charges made using the credit card on October 15 and 18, 2009, before appellant’s employment
was terminated, provided strong evidence that countered appellant’s claim that she inadvertently
took the card when she left the company on October 19, 2009.
The trial court sentenced appellant to a total of twenty-four months’ imprisonment and
suspended the twenty-four months. This appeal followed.
II. Analysis
We note at the outset that, on appeal, appellant challenges the trial court’s holding that
venue in Alexandria was proper for the charges of credit card theft and credit card fraud, and not
the sufficiency of the evidence supporting her convictions. “When venue is challenged on
appeal, we determine ‘whether the evidence, when viewed in the light most favorable to the
Commonwealth, is sufficient to support the [trial court’s] venue findings.’” Morris v.
Commonwealth, 51 Va. App. 459, 464-65, 658 S.E.2d 708, 710-11 (2008) (quoting Cheng v.
Commonwealth, 240 Va. 26, 36, 393 S.E.2d 599, 604 (1990)). To decide whether venue is
proper, “a court must determine whether the evidence . . . gave rise to a ‘strong presumption’ that
the offense was committed within the jurisdiction of the court.’” Meeks v. Commonwealth, 274
-4-
Va. 798, 802, 651 S.E.2d 637, 639 (2007) (quoting Cheng, 240 Va. at 36, 393 S.E.2d at 604)
(internal quotation marks omitted).
We note that “[f]or most crimes, venue is proper in the jurisdiction where all the elements
of the completed crimes were committed.” Gheorghiu v. Commonwealth, 54 Va. App. 645, 655,
682 S.E.2d 50, 55 (2009) (citing Green v. Commonwealth, 32 Va. App. 438, 448, 528 S.E.2d
187, 192 (2000)), aff’d in part, rev’d in part on other grounds, 280 Va. 678, 701 S.E.2d 407
(2010). However, the General Assembly has enacted a special venue statute for credit card theft
and credit card fraud. In this regard, Code § 18.2-198.1 provides, in pertinent part, “[A]
prosecution for a violation of this article may be had in any county or city in which (i) any act in
furtherance of the crime was committed . . . .”
In its assessment of the circumstances of the instant case, the trial court found, as a matter
of fact, that appellant took the credit card purposely, as opposed to inadvertently, from the
company’s offices in Alexandria, Virginia, when she was terminated from her employment. “On
review, we will not disturb the factual findings of the trial court unless plainly wrong or
unsupported by the evidence.” Robinson v. Commonwealth, 273 Va. 26, 39, 639 S.E.2d 217,
224 (2007) (citing Mercer v. Commonwealth, 259 Va. 235, 243, 523 S.E.2d 213, 217 (2000)).
The trial court’s factual findings regarding appellant’s purposeful taking of the credit card were
not plainly wrong or unsupported by the evidence. The evidence showed that appellant used the
credit card for nonbusiness purposes on October 15 and 18, 2009, before she was terminated.
These uses support the conclusion that when appellant took the credit card on October 19, 2009,
appellant intended to continue to use it for nonbusiness purposes. In addition, the uncontroverted
evidence established that the mailing address for the credit card’s billing statement was changed
from the company’s address to appellant’s home address sometime between September 21, 2009,
and October 21, 2009. The evidence of this change of address could circumstantially lead to the
-5-
conclusion that appellant changed the billing statement before or very shortly after taking the
credit card to conceal her use of the credit card, thus discrediting her claim that she took the
credit card inadvertently. The trial court’s factual finding that appellant took the credit card
purposefully on October 19, 2009, from the company’s Alexandria offices is not plainly wrong,
when considered with the circumstances surrounding appellant’s pre-termination use of the
credit card for nonbusiness purposes and change of address for the billing statement of the credit
card. As a result, we are bound by the trial court’s factual finding on appeal.
Moreover, appellant’s purposeful taking of the credit card from Alexandria is sufficient
to establish venue in Alexandria for both credit card theft and credit card fraud. The Virginia
Supreme Court has held that “credit card theft is completed where the card or number is
unlawfully taken from its rightful owner . . . with the intent to use it, sell it, or transfer it.”
Meeks, 274 Va. at 803, 651 S.E.2d at 640. Viewed in the light most favorable to the
Commonwealth, the evidence proved that appellant unlawfully took the credit card from its
rightful owner, her former employer, with the intent to use it when she was terminated on
October 19, 2009, thereby completing the crime of credit card theft in Alexandria. Moreover,
the act of credit card theft in violation of Code § 18.2-192 was also an act in furtherance of credit
card fraud. Code § 18.2-195(1)(a) defines credit card fraud as the “[u]se[ ] [of] . . . a credit card
. . . obtained or retained in violation of [Code] § 18.2-192” for “the purpose of obtaining money,
goods, services or anything else of value.” Thus, to commit credit card fraud under this part of
Code § 18.2-195, one must first obtain a credit card by theft, in violation of Code § 18.2-192. As
stated earlier, appellant committed credit card theft in Alexandria when she purposefully took the
credit card with the intent to use it for her personal purposes. Appellant later committed credit
card fraud. Appellant’s theft of the credit card was the precursor to, and as such an act in
-6-
furtherance of, her later credit card fraud. 3 As a result, the trial court did not err in holding that
venue was proper in Alexandria for the charges of credit card theft and credit card fraud.
Affirmed.
3
We note that the instant case is distinguishable from Gheorghiu v. Commonwealth, 280
Va. 678, 701 S.E.2d 407 (2010), because the theft of the credit card in Alexandria in the instant
case occurred before the fraudulent use of the credit card. In contrast, in Gheorghiu, the
Supreme Court of Virginia held that the defendant’s unlawful possession of a credit card in
violation of Code § 18.2-192 in Arlington County was insufficient to establish venue for credit
card fraud in Arlington County because the defendant was found in possession of the credit card
in Arlington County after he had already committed the credit card fraud in Fairfax County the
previous day. 280 Va. at 688, 701 S.E.2d at 413. In Gheorghiu, “the crime of credit card fraud
. . . was complete” by the time the defendant was found in unlawful possession of the credit card
in Arlington County. Id. In contrast, in the instant case, appellant was convicted of credit card
fraud for acts committed after she had first committed credit card theft in Alexandria.
-7-