Robert Mathew Lyne v. Commonwealth ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Cole
Argued at Richmond, Virginia
ROBERT MATHEW LYNE
v. Record No. 2428-94-2 MEMORANDUM OPINION * BY
JUDGE MARVIN F. COLE
COMMONWEALTH OF VIRGINIA MARCH 26, 1996
FROM THE CIRCUIT COURT OF
HENRICO COUNTY
James E. Kulp, Judge
Mark K. Tyndall (Christopher C. Booberg;
Morchower, Luxton and Whaley, on brief),
for appellant.
Thomas C. Daniel, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
The appellant, Robert Mathew Lyne, was convicted in a bench
trial of credit card theft in violation of Code § 18.2-192(1)(a).
He contends that the evidence is insufficient to support his
conviction. We disagree and affirm.
"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." Martin v. Commonwealth, 4 Va. App. 438, 443, 358
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
S.E.2d 415, 418 (1987). "'The finding of the judge, upon the
credibility of the witnesses and the weight to be given their
evidence, stands on the same footing as the verdict of a jury,
and unless that finding is plainly wrong, or without evidence to
support it, it cannot be disturbed.'" Speight v. Commonwealth, 4
Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (citation omitted).
Guided by these standards of review, the record discloses
that at about 1:45 a.m. on January 7, 1994, Karen Crawford parked
her car on the street in front of her house. She locked the car,
but inadvertently left her purse in it. At 7:50 a.m. she saw
that the right rear window of the car had been smashed. Her
purse had been stolen. The purse contained her wallet, ninety-
seven dollars in cash, her credit cards, a First Virginia Bank
ATM card, her checkbook and other items. Crawford had written
her personal identification number for the ATM card on a page in
the checkbook. When the First Virginia Bank opened at 9:00 a.m.,
she reported the theft of the ATM card.
At 3:01 a.m. on January 7, 1994, seventy-five dollars were
withdrawn from Crawford's bank account by use of her First
Virginia Bank ATM card from a Central Fidelity Bank branch.
Camera equipment at the bank photographed Lyne at the ATM
machine.
At 3:07 a.m. on January 7, 1994, one hundred and forty
dollars were withdrawn from Crawford's bank account by use of her
First Virginia Bank ATM card from a Crestar Bank branch located
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about two miles, or five minutes, from the Central Fidelity Bank
branch. Camera equipment at Crestar Bank showed a person with a
jacket pulled over his head covering his entire face and head
standing in front of the machine. The Crestar photographs showed
the arm of another person standing to the right of the person
with the jacket covering his head.
Henrico County Police Investigator Michael L. Wade testified
that he investigated the theft of the ATM card from Crawford
after he was provided with the pictures from Central Fidelity
Bank and Crestar Bank. He first spoke with Lyne on March 16,
1994. Lyne admitted to the officer that he was the person shown
in the Central Fidelity pictures, but he stated that he did not
use the ATM card. Lyne was shown the Crestar Bank pictures, but
he was reluctant to tell the officer who the person was under the
coat. However, through his mother, he gave the officer the name
of Jason Meeks. He did not say who the person was in the
picture.
Later in the day, Lyne telephoned the officer at his office
and gave him the following information:
[H]e said that they used to go to the machine
to get money to go to Taco Bell. He doesn't
know who used the card that day. He said
that Jason, who is Jason Meeks, used the card
a lot at the machine and that he'd also been
to ATM Machines before with Danny Proffit.
He also said that he was more than likely
drunk and don't remember going to the two
places, but that he would have remembered if
he had broke into a car. And he also told me
three places that they went to late at night.
The Amoco, the Taco Bell, and the Waffle
House.
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Lyne was arrested on May 12, 1994, and he furnished Officer
Wade additional information at that time:
He said that he didn't, speaking of himself,
didn't receive any of the money, that he
didn't know where the card came from, that
Jason was standing beside the machine, that
he had no idea prior to going to the machine,
what was going on. He said that Jason said
he stood beside the machine because they take
pictures of people, and he said he didn't
know anything about the machine but that they
probably went to Taco Bell after that.
Wade also said that Lyne did not say who paid at Taco Bell.
Lyne testified in his own behalf. He said he lived with
Jason Meeks. When shown the pictures taken at Central Fidelity
Bank, he recognized his photograph. He stated that it was about
fifty feet from the curb to the machine and that he was ten to
twenty feet back from the machine.
Lyne admitted being present at the Central Fidelity Bank
machine, but could not recall being dropped off during the six
minutes between 3:01 a.m. and 3:07 a.m. which elapsed during the
trip from Central Fidelity Bank to the Crestar Bank. Lyne was
asked what time he met Meeks on the night in question. He
testified that his girlfriend, who lived across the street from
him, always had to be home at midnight. He left there at 12:05
a.m. and walked across the street. He remembered Meeks "coming
and saying 'Let's go out to eat,' and there was a group of them,
as we usually do. We always met back and went out to eat. We
always went in separate directions most time at night."
Code § 18.2-192(1) provides that a person is guilty of
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credit card theft when:
(a) He takes, obtains or withholds a credit
card . . . 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 . . . with
intent to use it or sell it, or to transfer
it to a person other than the issuer or the
cardholder.
Lyne contends that under the first clause of Code
§ 18.2-192(1)(a), the Commonwealth must prove that he took,
obtained or withheld a credit card without consent. He asserts
that there is no evidence in the record to show who stole the
purse and certainly none to show that Lyne broke into the car and
stole the purse. In order to decide this case, we do not have to
determine who broke into the car and stole the purse. Therefore,
we make no determination under the first clause of Code
§ 18.2-192(1)(a) and proceed to the second clause.
The statute may be violated by proof that the accused was in
receipt of the card knowing that it was taken from the
possession, custody or control of the cardholder without her
consent. In a prosecution under those circumstances, the
Commonwealth does not have to prove that the accused was the
thief; however, it does have to prove that he had knowing receipt
of a card with intent to use, sell or transfer it. See Cheatham
v. Commonwealth, 215 Va. 286, 290, 208 S.E.2d 760, 763 (1974);
Sandoval v. Commonwealth, 20 Va. App. 133, 136, 455 S.E.2d 730,
731 (1995).
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The record establishes that Lyne and Jason Meeks were
together at some point after 12:05 a.m. on January 7, 1994. Lyne
testified, "I just remember him coming and saying 'Let's go out
to eat.'" At 1:45 a.m. Crawford parked her car in front of her
home and left her purse in the car with the ATM card in it.
Between 1:45 a.m. and 3:01 a.m. (one hour and sixteen minutes)
someone broke into the car and stole the purse and its contents,
including the ATM card. At 3:01 a.m. Lyne was photographed at
the Central Fidelity Bank ATM machine using the card. Lyne
admitted his presence at the machine. He also admitted to the
police officer that Jason Meeks was also present. The fact
finder could reasonably infer that Lyne knew that the card was
stolen from the facts that it was 3:01 a.m. and the manner in
which they approached the machine.
Susan Brooks, Bank Card Security Manager at Central Fidelity
Bank, testified that if you were standing directly in front of
the machine and put the card in the machine, the picture would be
centered. She testified that a person could approach from the
side and push the button from the side and the camera would not
take their picture. The photograph showed Lyne ten to twenty
feet in front of the machine and located where he could reach the
machine. Lyne testified that Meeks always approached the machine
from the side because he knew his picture could not be taken
there. We find that the fact finder could reasonably infer from
this evidence guilty knowledge. The evidence demonstrates that
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both Lyne and Meeks knew that the card was stolen.
Only six minutes elapsed between the withdrawals at Central
Fidelity Bank and Crestar Bank. It can be inferred that the card
did not change hands during this six minutes. Meeks had it at
the Central Fidelity Bank. Meeks was present and the card was
used six minutes later at Crestar Bank. Lyne identified the coat
in the Crestar Bank photograph as belonging to Meeks. It can be
inferred from the short period of time that elapsed that Lyne was
still with him. Meeks and Lyne lived together. Lyne testified
that he did not recall going to the second machine. When asked
where he was dropped off during this six minutes, Lyne testified:
I'm not saying that he did. I'm not sure.
Well, you say he was, he could have taken me
home. I could have got back in the car and
passed out. I know for sure, that whole
time, right after Christmas I drank for a
long, it could have been forty-some straight
days that I was a complete drunk . . . .
The trial judge compared the coat in the accused's picture
in the Central Fidelity Bank photograph with the arm shown in the
Crestar Bank photograph and found that "the Court believes that
the coat that's shown in there is very consistent with that being
worn by the defendant in Commonwealth's Exhibit No. 1." The
court further opined that "There cannot be any question in
anybody's mind that Mr. Meeks in [the Crestar Bank photograph] is
using a card that doesn't belong to him. He's covered his face
up, he's covered over so nobody can see his face." The trial
court found that Lyne was with Meeks at the time of the Crestar
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Bank theft and that he knew Meeks was using a card that did not
belong to him. The court then found that Lyne was aiding and
abetting Meeks in the credit card thefts.
It is well established that a "principal in the first degree
is the actual perpetrator of the crime." Hall v. Commonwealth, 8
Va. App. 526, 530, 383 S.E.2d 18, 21 (1989). A principal in the
second degree is a person present at the scene of the offense,
either actively or constructively, aiding or abetting its
commission through "words, gestures, signals or actions to in
some way encourage, advise, . . . urge, or . . . help" the
primary actor. Ramsey v. Commonwealth, 2 Va. App. 265, 269, 343
S.E.2d 465, 468 (1986). A principal in the second degree "may be
indicted, tried, convicted and punished in all respects as if a
principal in the first degree." Code § 18.2-18.
Aiders or abettors must either share the perpetrator's
criminal intent or commit an overt act in furtherance of the
crime, thereby making the offense "more likely" to occur.
Rollston v. Commonwealth, 11 Va. App. 535, 539, 399 S.E.2d 823,
826 (1991). Whether an accused aided and abetted in the
commission of an offense is a question of fact to be determined
from the circumstances of each case. Pugliese v. Commonwealth,
16 Va. App. 82, 93, 428 S.E.2d 16, 25 (1993).
Under Code § 18.2-192(1)(a) the Commonwealth is required to
prove "intent to use . . . or sell . . . or transfer" the card.
There can be no question that the Commonwealth proved this
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element because Lyne and Meeks actually used the card and
received money from it on two different occasions.
The evidence cited herein, when considered with the entire
record, establishes Lyne's role as a confederate of Meeks, acting
at least as an aider and abettor with him knowingly possessing a
credit card without permission of the cardholder with intent to
use it. We find credible evidence in the record to support the
judgment of the trial court beyond a reasonable doubt.
Therefore, we affirm the conviction.
Affirmed.
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