Darrell Deon Harrison v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia
DARRELL DEON HARRISON
OPINION BY
v. Record No. 1098-98-2 JUDGE JAMES W. BENTON, JR.
MAY 30, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
L. A. Harris, Jr., Judge
Cullen D. Seltzer (Rawlings & Wood, on
brief), for appellant.
Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial judge convicted Darrell Deon Harrison of three
counts of forgery, three counts of uttering, grand larceny,
credit card theft, and credit card fraud. Harrison contends the
trial judge erred in finding the evidence sufficient to prove
that he took, obtained, or withheld a credit card number, in
violation of Code § 18.2-192, and that he used a credit card
number with intent to defraud, in violation of Code § 18.2-195.
For the reasons that follow, we affirm the convictions.
I.
On appeal, we view the evidence in the light most favorable
to the Commonwealth and accord to that evidence all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 536 (1975). The
evidence at trial concerning the credit card offenses proved that
Delia Pitchford, an employee of the Sunglass Hut, sold Harrison a
pair of sunglasses for $274.99. Harrison told Pitchford that he
was out of checks, showed her his empty checkbook, and asked if
he could use his credit card number. Pitchford testified that
Harrison paid for the sunglasses using a Visa credit card number,
which he had "written down in the front of [his] checkbook."
Pitchford further testified that Harrison explained "he did not
have his card with him [and] his girlfriend had the card."
Harrison gave Pitchford his own name and showed her his
identification. He then used the credit card number to make the
purchase and filled out the warranty card with his own name.
The credit card number Harrison used to purchase the
sunglasses belonged to Harold Lloyd Kretzer, Jr. Kretzer
testified that he owned a Visa card with the same number and that
someone made charges to the account without his permission. He
and his wife always had the cards in their possession. He
further testified that he did not give anyone permission to use
his credit card number for making a purchase at the Sunglass Hut.
Harrison testified that he received the credit card number
from "a female friend" named Linda Brown, who told him that it
was hers. He testified that she gave him the credit card number
because "she wanted to give [him] a gift" as a token of
"friendship . . . [and] romance." He did not know her address.
Harrison never had possession of Kretzer's credit card, only the
credit card number.
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The trial judge convicted Harrison of various offenses,
including credit card theft and credit card fraud. This appeal
followed.
II.
Code § 18.2-192 provides, in pertinent part, the following:
(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.
Harrison contends the evidence was insufficient to convict
him because the Commonwealth "failed to prove that the card
number was taken or obtained from the person, possession,
custody or control of . . . Kretzer or that Harrison received
the card number with the knowledge that it had been so taken or
obtained." Harrison argues that, because he did not obtain
physical control or custody of the credit card to the exclusion
of the cardholder and did not receive the number directly from
the cardholder, he could not be convicted of credit card number
theft.
The statute, however, does not require the Commonwealth to
prove that Harrison received the credit card number directly
from Kretzer. The statute prohibits the receipt of the number
"from the person, possession, custody or control of another
without the cardholder's consent." Code § 18.2-192. Although
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we must strictly construe penal statutes against the
Commonwealth, we are required to "construe a statute to promote
the end for which it was enacted, if such an interpretation can
reasonably be made from the language used[, and we must] read
[statutes] to give reasonable effect to the words used 'and to
promote the ability of the enactment to remedy the mischief at
which it is directed.'" Mayhew v. Commonwealth, 20 Va. App.
484, 489, 458 S.E.2d 305, 307 (1995) (citations omitted).
Clearly, the statute criminalizes the improper acquisition
of both credit cards and credit card numbers. The statute does
not exclude individuals who obtain credit card numbers from
discarded receipts, via the telephone or the Internet, or any of
the myriad ways in which credit card numbers can be fraudulently
acquired without possession of the credit card or without the
cardholder's consent.
The evidence proved that Kretzer did not consent to this
use of his credit card number. Moreover, Harrison testified at
trial that he received the number from a woman under peculiar
circumstances. "The credibility of the witnesses and the weight
accorded the evidence are matters solely for the fact finder who
has the opportunity to see and hear that evidence as it is
presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455
S.E.2d 730, 732 (1995). Harrison testified that Linda Brown
gave him the number, but he did not know where Brown lived or
even whether Linda Brown was her real name. Harrison told
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Pitchford, however, that the credit card number belonged to him.
This evidence permits the inference that Harrison knew the
credit card number did not belong to Linda Brown. Thus, we
cannot say the trial judge erred as a matter of law in rejecting
Harrison's testimony that he believed the card number belonged
to Brown and that Brown was "buying [him] a gift." See
Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417,
419 (1991) (holding that the fact finder's determination that a
witness was credible can only be disturbed on appeal if that
"testimony was 'inherently incredible, or so contrary to human
experience as to render it unworthy of belief'").
Harrison acquired Kretzer's credit card number without his
consent; therefore, the taking element of Code § 18.2-192 was
proved because Harrison interfered with Kretzer's right to
determine who shall have the right to use his credit card
number. Cf. Clay v. Commonwealth, 30 Va. App. 254, 259, 516
S.E.2d 684, 686 (1999) (en banc) (noting that in the context of
robbery, a taking from the person does not require actual
contact with the person, but can be simply taking the property
from that person's personal protection and presence).
III.
In pertinent part, Code § 18.2-195 provides as follows:
(1) A person is guilty of credit card
fraud when, with intent to defraud
any person, he:
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(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 [Code] § 18.2-192 or a
credit card or credit card number which
he knows is expired or revoked;
(b) Obtains money, goods, services or
anything else of value by
representing (i) without the consent of
the cardholder that he is the
holder of a specified card or credit
card number.
The evidence proved that Harrison used the credit card
number to purchase sunglasses after having obtained the number
in violation of Code § 18.2-192. To prove fraud, however, the
Commonwealth also had to prove that Harrison had the specific
intent to commit a crime. See Campbell v. Commonwealth, 14 Va.
App. 988, 990, 421 S.E.2d 652, 654 (1992) (defining intent to
defraud as "act[ing] with an evil intent, or with the specific
intent to deceive or trick"). "'Intent is a state of mind that
may be proved by an accused's acts or by his statements and that
may be shown by circumstantial evidence.'" Wilson v.
Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74 (1995)
(citation omitted).
Harrison told Pitchford that the credit card number was his
and then testified at trial that Linda Brown gave him the
number. Harrison would have no reason to tell Pitchford the
credit card number was his if he had not known the status of the
number. Moreover, as the trial judge noted, Harrison gave
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Pitchford a false address when he filled out the warranty card.
This evidence was sufficient for the trial judge to find beyond
a reasonable doubt that Harrison had the requisite intent to
defraud.
For the foregoing reasons, we affirm the convictions.
Affirmed.
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