Douglas Gordon Myatt v. Commonwealth of Virginia ( 2010 )

COURT OF APPEALS OF VIRGINIA
Present: Judges McClanahan, Beales and Senior Judge Willis
Argued at Salem, Virginia
DOUGLAS GORDON MYATT
MEMORANDUM OPINION * BY
v. Record No. 1187-09-3 JUDGE JERE M. H. WILLIS, JR.
MARCH 16, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF RUSSELL COUNTY
Charles H. Smith, Jr., Judge Designate
David R. Tiller (Tiller & Tiller, P.C., on brief), for appellant.
Gregory W. Franklin, Assistant Attorney General (William C. Mims,
Attorney General, on brief), for appellee.
In a bench trial, Douglas Gordon Myatt was acquitted of credit card theft in violation of
Code § 18.2-192(1)(a) and was convicted of credit card fraud in violation of Code § 18.2-195(1)(a).
On appeal, he contends these verdicts were impermissibly inconsistent. We agree and reverse his
conviction for credit card fraud.
BACKGROUND
Mercy Ambulance Service (Mercy) hired Myatt as a paramedic in November 2005. The
following month, he was promoted to manager, and Mercy provided him with a corporate credit
card. Ginger Woods, Myatt’s supervisor, testified that he was authorized to use the credit card to
make purchases for the company. Small purchases, such as fuel or office supplies, did not
require prior authorization. Larger purchases required pre-approval by Woods or James Lewis,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
the company’s owner. Myatt was also authorized to use the card for personal purchases,
provided he reimbursed the company.
In March 2006, Myatt was demoted to a non-managerial paramedic position. At that
time, Woods told him to return the credit card to Lewis or to the assistant manager. Myatt stated
he did not have the card with him that day. In early April 2006, while Woods and Lewis were on
vacation, Myatt resigned from the company. Though asked to return the credit card, he never
did. He continued to use the card for personal purchases after he no longer worked for Mercy.
Myatt was indicted for credit card theft, in violation of Code § 18.2-192(1)(a), and for
credit card fraud, in violation of Code § 18.2-195(1)(a). At the conclusion of a bench trial on
these charges, the trial court held:
Mr. Myatt . . . thought he could get by with using that card
for a while and, . . . at some future point, he would be responsible
for paying it back. So while he took it and kept it after his
employment terminated, I do not think he did so with the intent of
stealing it. Therefore, I find him not guilty of the credit card theft.
(Emphasis added).
The trial court then convicted Myatt of credit card fraud.
ANAYLSIS
Code § 18.2-195 provides, in pertinent part:
(1) A person is guilty of credit card fraud when, with intent to
defraud any person, he:
(a) Uses for the purpose of obtaining money, goods, services or
anything else of value a credit card or credit card number obtained
or retained in violation of § 18.2-192 or a credit card or credit card
number which he knows is expired or revoked . . . .
Code § 18.2-192, provides, in 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
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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 . . . .
By acquitting Myatt of credit card theft under Code § 18.2-192, the court necessarily
concluded that an essential element of credit card fraud under Code § 18.2-195(1)(a) had not
been proven.
In Akers v. Commonwealth, 31 Va. App. 521, 532, 525 S.E.2d 12, 19 (2000), we held
that truly inconsistent verdicts in a bench trial constitute reversible error. Nevertheless, under
Akers, a facially inconsistent judgment will be sustained “where a trial judge on the record
explains an apparent inconsistency in the verdicts, and where the explanation shows that the trial
court’s action was ‘proper’ and that there was no ‘unfairness.’” Id. at 532 n.5, 525 S.E.2d at 18
n.5 (quoting Johnson v. State, 209 A.2d 765, 773 (Md. 1965)); see Cleveland v. Commonwealth,
38 Va. App. 199, 204, 562 S.E.2d 696, 698 (2002).
In Cleveland,
the trial judge said he “[c]hose to give [Cleveland] a break even
though [the evidence proved Cleveland] was under the influence.”
This statement indicates the judge considered his ruling to be an
act of lenity, and it clearly establishes that the ruling was not a
product of confusion. Thus, unlike in Akers, the trial judge made a
specific finding concerning the reason he convicted Cleveland of
reckless driving and dismissed the driving under the influence
charge.
Cleveland, 38 Va. App. at 204-05, 562 S.E.2d at 698.
In ruling on Myatt’s post-trial motion challenging the verdicts, the trial court stated, “I
don’t recall specifically . . . there was some leniency perhaps . . . .” However, in its holding at
trial, the trial court concluded that Myatt “did wrongfully withhold the card, but that he did not
do so with the intention of stealing it and keeping it.” The trial court specifically held,
“Therefore,” for that reason, that Myatt was “not guilty of the credit card theft.” Thus, the trial
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court “‘rejected the only evidence that would support the [credit card fraud] conviction.’” Akers,
31 Va. App. at 531, 525 S.E.2d at 18 (quoting Shell v. State, 512 A.2d 358, 362-63 (Md. 1986)).
It plainly held that the violation of Code § 18.2-192 had not been proven. Thus, an essential
element of Code § 18.2-195(1)(a) was also not proven.
The trial court gave no valid explanation for convicting Myatt of credit card fraud while
acquitting him of credit card theft. Its suggested explanation in its ruling on Myatt’s post-trial
motion was vague and suppositional; plainly insufficient in the face of its firm and unambiguous
holding at trial. Without a sufficient explanation for the inconsistent verdicts, Myatt’s credit card
fraud conviction must be reversed. See Cleveland, 38 Va. App. at 204, 562 S.E.2d at 698.
Accordingly, the judgment of the trial court is reversed and the indictment charging
Myatt with credit card fraud is dismissed.
Reversed and dismissed.
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