Carl Edward Warren, Jr. v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Annunziata
Argued at Richmond, Virginia
CARL EDWARD WARREN, JR.
MEMORANDUM OPINION * BY
v. Record No. 1078-01-2 JUDGE RICHARD S. BRAY
MAY 7, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF POWHATAN COUNTY
Thomas V. Warren, Judge
(William R. Blandford, Jr.; Blandford,
Carrico & Newlon, P.C., on brief), for
appellant. Appellant submitting on brief.
Amy L. Marshall, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
Carl Edward Warren, Jr. (defendant) was convicted in a bench
trial for petit larceny and credit card theft, violations of Code
§§ 18.2-96 and -192, respectively. On appeal, he contends the
evidence was insufficient to prove the offenses. Finding no
error, we affirm the trial court.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, granting
to it all reasonable inferences fairly deducible therefrom.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). The credibility of the witnesses, the weight accorded
their testimony, and the inferences drawn from the proven facts
are matters to be determined by the fact finder. Long v.
Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).
The judgment of the trial court will not be disturbed unless
plainly wrong or unsupported by evidence. Code § 8.01-680.
Viewed accordingly, the record discloses that, in May 2000,
Nathalie Van deVorrde was residing at the Powhatan County farm of
a friend, Nicole Zoet, together with Zoet's two daughters and
defendant. At the "[e]nd of May or June," Van deVorrde noticed a
"reserve credit card," "a spare one" she "never used," missing
from her wallet. She reported loss of the card to the issuer, was
advised "a week or two later" that "the card had been used," and
promptly notified Powhatan County Police.
"[W]orking with . . . information" provided by Van deVorrde,
police investigator Daniel Giardini "ran a [record] check on
[defendant]" and learned he was the subject of "outstanding
warrants." When Giardini and Lieutenant Vernon Poe arrived at
Zoet's farm to arrest defendant, they discovered his car with "all
four doors . . . standing open" and a "box protruding from the
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passenger front seat" was identified by Van deVorrde as the "cash
box" maintained by Zoet for household expenses. A search of the
vehicle by Giardini yielded Zoet's box and, "on the center console
between the front seats," "a black leather wallet" containing
defendant's "identification" and Van deVorrde's missing credit
card.
At trial, Van deVorrde testified defendant did not have
permission to possess or use the credit card. Nicole Zoet
testified she maintained "reserve money" for expenses in the cash
box and that defendant was not allowed access to the funds.
Defendant, previously convicted of "seven" "felonies" and
"[f]ive" crimes "involving lying, cheating and stealing,"
insisted Van deVorrde was aware of his "finances" and allowed
him to use her credit card for various purchases, including a
cash advance, sign related purchase documents and "keep the
credit card." "[A]lways together" when the card was utilized
for his purposes, defendant claimed Van deVorrde "kept up with
the money she loaned [him]," "the total amount that was spent,"
admitting "[i]t wasn't paid back yet . . . ." He recalled
returning the card to Van deVorrde when she "got upset about the
money" at "the end of May."
Aware Zoet maintained a cash box "to buy groceries and
stuff for the house," defendant admitted taking "eight to ten
dollars" from the box on "the sixth or the seventh of June,"
without permission, to purchase food for one of Zoet's children
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and himself. Defendant denied knowledge that the cash box or
credit card were in his car.
At the conclusion of the Commonwealth's evidence and,
again, at the conclusion of all the evidence, defendant moved
the court to strike, arguing, first, that "the box is available
to all," and "there is no indication, except for the discovery
of the box in [his] car, that he took anymore than seven or
eight dollars out," and, secondly, that the evidence was
insufficient to prove he possessed the credit card. Finding
defendant's testimony and related argument incredible, the court
denied the motion and convicted defendant of the subject
offenses, resulting in the instant appeal.
II.
Code § 18.2-192 provides, in pertinent part:
(1) A person is guilty of credit card or
credit card number theft when:
(a) He 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 . . . .
Here, Van deVorrde had not consented for defendant to possess
or use her credit card. Nevertheless, it was found inside
defendant's wallet, secreted in his car. Although defendant
claimed he had previously possessed and used the card with Van
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deVorrde's permission, "[t]he trial court was entitled to
disbelieve [defendant's] explanation and conclude that he lied to
conceal his guilt." Dunbar v. Commonwealth, 29 Va. App. 387, 394,
512 S.E.2d 823, 827 (1999). Thus, discounting defendant's
testimony, the Commonwealth's evidence was clearly sufficient to
prove beyond a reasonable doubt that he committed credit card
theft.
III.
Defendant next contends the evidence was insufficient to
prove he committed petit larceny, claiming he removed "a small
amount of cash" from the "cash box" with "implied authority."
Again, we disagree.
"Larceny is the wrongful taking of the goods of another
without the owner's consent and with the intention to permanently
deprive the owner of possession of the goods." Bright v.
Commonwealth, 4 Va. App. 248, 251, 356 S.E.2d 443, 444 (1987).
"Intent is the purpose formed in a person's mind which may, and
often must, be inferred from the facts and circumstances in a
particular case. The state of mind of an alleged offender may be
shown by his acts and conduct." Ridley v. Commonwealth, 219 Va.
834, 836, 252 S.E.2d 313, 314 (1979) (citations omitted).
The instant record established that Zoet had not given
defendant permission to obtain monies from the cash box.
Nevertheless, he removed and expended "eight to ten dollars" from
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the repository. Such evidence clearly supports the finding that
defendant committed petit larceny.
Accordingly, we affirm the convictions.
Affirmed.
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