José Rafael Salazar v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Russell and AtLee
PUBLISHED
Argued at Fredericksburg, Virginia
JOSÉ RAFAEL SALAZAR
OPINION BY
v. Record No. 0879-15-4 JUDGE WESLEY G. RUSSELL, JR.
AUGUST 23, 2016
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUDOUN COUNTY
J. Howe Brown, Jr., Judge Designate
Sean D. O’Malie (Law Offices of Sean D. O’Malie, PLC, on briefs),
for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
José Rafael Salazar, appellant, was convicted in a bench trial of felony identity theft1 in
violation of Code § 18.2-186.3. On appeal, appellant argues the evidence was insufficient to
establish all of the elements of the offense and that, even if the offense had been proven, the trial
court erred in finding that the evidence established a financial loss in excess of the felony threshold
of $200. For the reasons stated below, we affirm.
BACKGROUND
“Under well-settled principles of appellate review, we consider the evidence presented at
trial in the light most favorable to the Commonwealth, the prevailing party below.” Smallwood v.
1
Appellant was indicted and prosecuted for a violation of Code § 18.2-186.3, which is
entitled “identity theft.” The conviction and sentencing orders, however, indicate that appellant
was convicted of “identity fraud” in violation of Code § 18.2-186.3. Given our resolution of the
appeal, we remand to the trial court for the limited purpose of correcting the conviction and
sentencing orders so that they provide that appellant was convicted of “identity theft” as opposed
to “identity fraud.”
Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth,
275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). This principle requires us to “discard the evidence
of the accused in conflict with that of the Commonwealth, and regard as true all the credible
evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v.
Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and internal quotation
marks omitted).
So viewed, the evidence establishes that, in 1999, Christian Childers purchased a home in
Loudoun County, Virginia. In 2007 or 2008, Childers refinanced his mortgage on the property
through Wells Fargo. In order to obtain that mortgage, Childers provided Wells Fargo with his
social security number. Beginning in 2009, Childers began receiving mail and telephone calls at
his home for the appellant, José Salazar, whom Childers did not know. In 2010, as a result of an
increase in the amount of correspondence addressed to Salazar he received at his home, Childers
subscribed to a credit monitoring service as a precaution. The cost of the credit monitoring
service was approximately $29 a month, and Childers maintained the service from January 2010
through the time of trial.
In 2012, Childers received emails from Wells Fargo that were addressed to him, yet
referenced José Salazar, a loan number that Childers did not recognize, and an unfamiliar address
in Silver Spring, Maryland. Childers testified that he never used his social security number to
obtain a mortgage loan for a home in Silver Spring, Maryland and that he never gave anyone else
permission to do so.
Detective Terry Sheffer with the Loudoun County Sheriff’s Office initiated an
investigation regarding the correspondence and the Silver Spring property and testified at trial
regarding what he discovered. In the course of the investigation, Detective Sheffer spoke with
appellant. Appellant identified a loan application that he filed to obtain a refinance on his
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mortgage loan for the Silver Spring residence. Appellant told Detective Sheffer that the social
security number on the document was not his own and that he “made up the number” in order to
obtain the loan. The social security number appellant used on the application was Childers’
social security number.
Kimberly Moody, a financial crimes investigator for Wells Fargo also testified. Through
her testimony, it was established that, in the records of Wells Fargo, the entity that ultimately
held mortgages on both the home of appellant and the home of Childers, Childers’ social security
number was associated with two separate mortgage loans. The mortgage loan taken out by
Childers on his own home was tied to Childers’ social security number, and the mortgage loan
appellant had taken out on his Silver Spring home was also tied to Childers’ social security
number.
At the conclusion of the evidence, appellant moved to strike the Commonwealth’s
evidence and argued that no evidence showed that the mortgagor had relied on Childers’ social
security number in approving the loan or that appellant knowingly had selected Childers’ social
security number as opposed to choosing the number randomly or by mistake. Appellant also
argued that the Commonwealth failed to prove that the mortgagor suffered a financial loss. The
trial court denied the motions and found appellant guilty.
Upon imposition of sentence, the trial court referred to the theft of “the information of a
particular social security number” and indicated that it did not believe appellant’s statement that
he had made up the social security number without any knowledge that it was a real social
security number.
This appeal followed. Specifically, appellant argues that the Commonwealth was
required to prove: (1) that he knowingly used Childers’ social security number, (2) that he had
the intent to defraud, and (3) that he obtained money, credit, loans, goods or services through the
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use of Childers’ social security number. He contends that the evidence did not establish these
elements.2 Alternatively, he argues that the evidence was insufficient to establish that anyone
suffered a financial loss in excess of $200 as a result of his use of the number, and therefore, the
trial court erred in convicting him of a felony as opposed to a misdemeanor.3
ANALYSIS
I. Standard of Review
In reviewing appellant’s challenge to the sufficiency of the evidence, we note that we
examine a factual finding “with the highest degree of appellate deference.” Thomas v.
Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). The only “relevant question
is, after reviewing the evidence in the light most favorable to the prosecution, whether any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010) (emphasis
added). This deferential appellate standard “applies not only to the historical facts themselves,
but the inferences from those facts as well.” Clanton v. Commonwealth, 53 Va. App. 561, 566,
673 S.E.2d 904, 907 (2009) (en banc) (internal quotation marks omitted). “Thus, a factfinder
may ‘draw reasonable inferences from basic facts to ultimate facts.’” Tizon v. Commonwealth,
60 Va. App. 1, 10, 723 S.E.2d 260, 264 (2012) (quoting Haskins v. Commonwealth, 44 Va. App.
1, 10, 602 S.E.2d 402, 406 (2004)).
2
On brief, appellant also argues that the evidence was insufficient to prove that he
obtained, recorded, or accessed the identifying information of another person that was not
available to the general public in violation of Code § 18.2-186.3(A)(1). At oral argument,
appellant noted that the language of the indictment tracked the prohibition found in
Code § 18.2-186.3(A)(2). Given the language of the indictment and our ultimate conclusion that
the evidence was sufficient to support a conviction under Code § 18.2-186.3(A)(2), we do not
address appellant’s argument regarding the requirements of Code § 18.2-186.3(A)(1).
3
Both parties consented at oral argument that, if we were to find that the evidence
supported a conviction only for the misdemeanor, the remedy would be resentencing rather than
a new trial. See Commonwealth v. South, 272 Va. 1, 630 S.E.2d 318 (2006).
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However, the determination of what elements the Commonwealth was required to prove
to obtain a conviction under Code § 18.2-186.3(A)(2) requires us to construe the statute. We
conduct such a review de novo.
II. Elements Required for a Conviction Under Code § 18.2-186.3(A)(2)
To ascertain the elements that the Commonwealth must prove to support a conviction
under Code § 18.2-186.3(A)(2), we turn to the statute itself. “When construing a statute, our
primary objective is ‘to ascertain and give effect to legislative intent,’ as expressed by the
language used in the statute.” Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420,
425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706
S.E.2d 879, 882 (2011)) (further citation and internal quotation marks omitted). “Under basic
rules of statutory construction, we determine the General Assembly’s intent from the words
contained in the statute,” Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470
(2003), and we are prohibited from adding language to or deleting language from a statute,
Appalachian Power Co. v. State Corp. Comm’n, 284 Va. 695, 706, 733 S.E.2d 250, 256 (2012).
Code § 18.2-186.3(A)(2) provides that
It shall be unlawful for any person, without the authorization or
permission of the person or persons who are the subjects of the
identifying information, with the intent to defraud, for his own use
or the use of a third person, to . . .
[o]btain money, credit, loans, goods, or services through the use of
identifying information of such other person . . . .
What constitutes “identifying information” for the purposes of Code § 18.2-186.3(A)(2) is
defined in Code § 18.2-186.3(C), which provides:
As used in this section, “identifying information” shall include but
not be limited to: (i) name; (ii) date of birth; (iii) social security
number; (iv) driver’s license number; (v) bank account numbers;
(vi) credit or debit card numbers; (vii) personal identification
numbers (PIN); (viii) electronic identification codes;
(ix) automated or electronic signatures; (x) biometric data;
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(xi) fingerprints; (xii) passwords; or (xiii) any other numbers or
information that can be used to access a person’s financial
resources, obtain identification, act as identification, or obtain
money, credit, loans, goods, or services.
Applying the plain meaning of the words contained in the statute, Davenport v.
Little-Bowser, 269 Va. 546, 555, 611 S.E.2d 366, 371 (2005), in the context of this case, the
Commonwealth had to establish that appellant, with “the intent to defraud,” used the social
security number of another “person,” without that person’s “authorization or permission,” in
order to “[o]btain money, credit, loans, goods, or services.” Code § 18.2-186.3(A)(2). The
statute does not require the Commonwealth prove anything else to establish a violation.
Appellant contends that there is an additional, implied element under the statute. Citing
the United States Supreme Court’s decision in Flores-Figueroa v. United States, 556 U.S. 646
(2009), appellant argues that Code § 18.2-186.3(A)(2) requires that the Commonwealth prove
that he knew that he was using the social security number of Childers as opposed to simply
having made up the number at random. Although appellant is correct that the United States
Supreme Court did hold in Flores-Figueroa that 18 U.S.C. § 1028A(a)(1), which imposes a
mandatory minimum sentence for certain identity theft crimes, requires a showing that a
defendant “knew” that the personal information “used, in fact, belonged to another person . . ,”
556 U.S. at 647, his reliance on the case is misplaced.
The text of the federal statute at issue in Flores-Figueroa provides that “[w]hoever, during
and in relation to any felony violation enumerated in subsection (c), knowingly transfers,
possesses, or uses, without lawful authority, a means of identification of another person shall, in
addition to the punishment provided for such felony, be sentenced to a term of imprisonment of
2 years.” 18 U.S.C. § 1028A(a)(1) (emphasis added). The inclusion of the word “knowingly” in
the statute led the United States Supreme Court to hold that it “requires the Government to show
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that the defendant knew that the means of identification at issue belonged to another person.”
Flores-Figueroa, 556 U.S. at 657.
In contrast to 18 U.S.C. § 1028A(a)(1), Code § 18.2-186.3(A)(2) does not contain the
word “knowingly.” Thus, we must conclude that the General Assembly did not intend to impose
a requirement that an offender actually know that the false social security number (or other
identifying information) actually belongs to another person.4 To hold otherwise would amount to
this Court impermissibly “rewriting the statute under the guise of statutory construction.” Lahey
v. Johnson, 283 Va. 225, 230, 720 S.E.2d 534, 537 (2012). Thus, while the offense requires that
the identifying information belong to another person, there is no requirement that appellant know
who that person is or that the information actually does belong to another person.
4
That the General Assembly knows how to require that a fraudulent use of information to
obtain benefits be “knowing” before the act is criminal is readily apparent from the Code of
Virginia. Code § 18.2-186.2, the immediately preceding code section, provides that
[a]ny person who (i) knowingly makes or causes to be made either
directly or indirectly or through any agent or agency, any false
statement in writing with the intent that it shall be relied upon, or
fails to disclose any material fact concerning the financial means or
ability to pay of himself or of any other person for whom he is
acting, for the purpose of procuring aid and benefits available
under any local, state or federally funded housing assistance
program, or (ii) knowingly fails to disclose a change in
circumstances in order to obtain or continue to receive under any
such program aid or benefits to which he is not entitled or who
knowingly aids and abets another person in the commission of any
such act is guilty of a Class 1 misdemeanor.
(Emphasis added). We must give effect to the General Assembly’s decision not to include
“knowingly” in Code § 18.2-186.3(A)(2). See Brown v. Commonwealth, 284 Va. 538, 545, 733
S.E.2d 638, 641 (2012) (“[W]hen the General Assembly includes specific language in one . . .
statute, but omits that language from another . . . statute, [courts] must presume that the
exclusion of the language was intentional because under these circumstances, it is evident that
the General Assembly knows how to include such language in a statute to achieve an intended
objective; thus the omission of [such] language [in another statute] represents an unambiguous
manifestation of a contrary intention.” (internal quotation marks and citations omitted)).
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With the required elements of the offense identified, we now turn to whether the
Commonwealth’s evidence was sufficient to establish those elements beyond a reasonable doubt.
III. Sufficiency of the Evidence
There is no dispute that the evidence established that the social security number appellant
used on the loan application belonged to Childers and that Childers did not give appellant
permission or authorization to use his social security number. Appellant argues that the evidence
failed to establish the remaining elements—namely, that he used Childers’ social security number
with the intent to defraud and that he used the number to “[o]btain money, credit, loans, goods, or
services.”
A. Intent to Defraud
“Intent may be, and most often is, proven by circumstantial evidence and the reasonable
inferences to be drawn from proven facts.” Viney v. Commonwealth, 269 Va. 296, 301, 609
S.E.2d 26, 29 (2005). Here, it is undisputed that appellant intentionally filled out and submitted
a loan application using a social security number that was not his. There is no innocent
explanation for such an action. Accordingly, this fact alone was sufficient to allow a reasonable
factfinder to conclude, beyond a reasonable doubt, that appellant had the intent to defraud the
lender when he used Childers’ social security number on the loan application.
Of course, the Commonwealth’s evidence of intent was not limited to the mere fact that
appellant used Childers’ social security number on the loan application. Through the testimony
of Detective Sheffer, the Commonwealth introduced appellant’s statement that he “made up the
[social security] number in order to obtain the mortgage loan.” Appellant’s statement is
sufficient, in and of itself, to allow a reasonable factfinder to conclude, beyond a reasonable
doubt, that appellant had the intent to defraud the lender when he used Childers’ social security
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number on the loan application. In short, the Commonwealth’s evidence was more than
sufficient to establish that appellant possessed the requisite intent to defraud.
B. Obtain the Mortgage
Appellant argues that it is not enough for the evidence to establish that he fraudulently
used another person’s social security number in an effort to obtain a mortgage loan, but rather,
the Commonwealth must establish that he actually obtained a loan through the use of the false
social security number. Assuming without deciding that appellant is correct, the evidence was
sufficient to allow a reasonable factfinder to conclude beyond a reasonable doubt that appellant
actually obtained a mortgage loan through the use of Childers’ social security number.5
The completed loan application establishes both that the lender required a social security
number to process the application and that appellant used Childers’ social security number in an
effort to obtain the loan. The fact that the records of Wells Fargo, the mortgage loan servicer,
linked appellant’s mortgage on the Silver Spring property to Childers’ social security number is
sufficient to establish that the mortgage actually was obtained through an application listing that
social security number. Thus, a factfinder reasonably could conclude that appellant obtained the
mortgage through the use of Childers’ social security number.
Appellant argues that there is no evidence that the lender actually relied on the social
security number. There is no explicit requirement in the statute that a lender rely on the false
information, whether by conducting a credit check using the false social security number or by
some other means, in making its loan determination. The statute requires only that the false
information be used to obtain the loan, and we cannot add a reliance requirement to the statute
5
Appellant’s statement that he made up the number to obtain the loan conclusively
establishes he used Childers’ social security number in an effort to do so.
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crafted by the General Assembly.6 See Lahey, 283 Va. at 230, 720 S.E.2d at 537. Here, the
established facts that the lender requested the social security number on the application and that
appellant provided the false number for the avowed purpose of obtaining the loan are sufficient to
support a conclusion that appellant obtained the loan through the use of Childers’ social security
number.
IV. Classification of the Offense
In general, violations of Code § 18.2-186.3(A)(2) are Class 1 misdemeanors; however, the
statute identifies various aggravating circumstances that will result in the offense being a felony.
Relevant here, Code § 18.2-186.3(D) provides, in pertinent part, that “[v]iolations of this section
shall be punishable as a Class 1 misdemeanor. Any violation resulting in financial loss of greater
than $200 shall be punishable as a Class 6 felony.”
The statute does not provide a definition of financial loss. “When . . . a statute contains
no express definition of a term, the general rule of statutory construction is to infer the
legislature’s intent from the plain meaning of the language used.” Hubbard v. Henrico Ltd.
P’ship, 255 Va. 335, 340, 497 S.E.2d 335, 338 (1998) (citing City of Virginia Beach v. Flippen,
251 Va. 358, 362, 467 S.E.2d 471, 473-74 (1996); Marsh v. City of Richmond, 234 Va. 4, 11,
360 S.E.2d 163, 167 (1987)). “Financial,” of course, refers to the pecuniary, limiting the
statute’s reach to losses of money or things of monetary value as opposed to abstract injury to a
property right. Thus, in context, “financial loss” means some monetary injury or non-reimbursed
6
Once again, Code § 18.2-186.2 reveals that the General Assembly knows how to craft
such a requirement if that is its purpose. Code § 18.2-186.2, in pertinent part, prohibits the use
of a false statement in writing “with the intent that it shall be relied upon” for the purpose of
obtaining certain housing benefits. (Emphasis added). We must give effect to the General
Assembly’s decision not to include a reliance element in Code § 18.2-186.3(A)(2). See Brown,
284 Va. at 545, 733 S.E.2d at 641.
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expenditure of funds that results from the use of another’s identifying information as defined in
Code § 18.2-186.3(C).
The Commonwealth argued, and the trial court found, that the evidence established a
financial loss of greater than $200. Specifically, the Commonwealth argued that both the lender
and Childers independently suffered losses greater than $200—the bank from lending money it
would not have in a loan that, at one point, was noted to be in default and Childers from
expending money on credit monitoring services. Appellant argues that the evidence did not
support the conclusion that he caused a financial loss of at least $200. We address the two bases
advanced by the Commonwealth in turn.
A. Purported financial loss of the lender
The Commonwealth argues that the evidence establishes that the lender suffered a
financial loss of far greater than $200. After all, the initial loan amount was $344,000, and the
loan was reported to be in default. Alternatively, the Commonwealth argues that the mere fact
that more than $200 was loaned as a result of appellant’s fraudulent use of Childers’ social
security number is sufficient to prove a financial loss of greater than $200. We disagree.
Although there was testimony that appellant received a loan far in excess of $200 and that
the loan was, at least at one point, in default, there was no evidence that the lender suffered a
financial loss. There was no evidence to establish whether, after the loan went into default,
appellant brought it current by paying any contractually required penalties and interest or the loan
remained in default. Even if the mortgage had proceeded to foreclosure, the lender could have
been made whole through a foreclosure sale if appellant’s equity in the home had exceeded the
loan amount and any costs associated with the foreclosure sale.7
7
See, e.g., Code § 55-59.4(A)(3) (providing the order or priority for the payment of costs
and lienholders in a foreclosure sale and that any amount in excess of the liens and costs that is
recovered is to be paid to the mortgage borrower); Simard v. White, 859 A.2d 168, 203
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The Commonwealth argues that the mere fact that the lender was tricked into loaning
money through appellant’s fraudulent use of Childers’ social security number is sufficient to
establish a “financial loss.” In the context of a mortgage loan, whether a lender has suffered a
financial loss is dictated by the terms of the loan agreement and the circumstances surrounding
any events of default/foreclosure. If a person fraudulently obtains a mortgage through the use of
another person’s identifying information but makes all of the mortgage payments on time
consistent with his contractual obligations, a mortgage lender has not suffered a financial loss.8
Although the lender in this case may have suffered a financial loss, the absences of
evidence regarding the terms of the loan agreement, the ultimate resolution of the loan after it
went into default, and the results of a foreclosure sale, if any, required the factfinder to engage in
speculation to conclude that the lender, in fact, suffered the requisite financial loss. Accordingly,
the purported financial loss of the lender cannot be used to enhance the crime from a Class 1
misdemeanor to a Class 6 felony.
B. Financial loss of Childers
Alternatively, the Commonwealth argues that the payments Childers made for credit
monitoring services after he became concerned that someone had stolen his identity establish that
Childers suffered a financial loss of greater than $200 as a result of appellant’s use of Childers’
(Md. App. 2004) (noting that “the practice of mortgage foreclosures was designed to (1) pay the
expenses of sale, (2) pay off the mortgage debt, (3) return to the mortgagor the surplus as
representing the true remaining value of the property sold”).
8
This is not to say that the person fraudulently obtaining the mortgage has not committed
a violation of Code § 18.2-186.3(A)(2) or potentially other crimes when the loan application is
filed or the lender provides the funds. See, e,g., Code § 18.2-186 (criminalizing false statements
made to obtain a loan or credit and tying an enhanced penalty to the amount of the loan or credit
extended, but not requiring proof of a “financial loss”). Rather, it simply recognizes that neither
an application nor the providing of the funds is sufficient to establish that, when only those
events have occurred, a mortgage lender has suffered the “financial loss” required by the
General Assembly to enhance a violation of Code § 18.2-186.3(A)(2) to a Class 6 felony.
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social security number. The record makes clear that Childers contracted for credit monitoring
services only after he began receiving communications addressed to Salazar related to
financial/credit issues tied to Salazar’s fraudulent use of Childers’ social security number.9
Accordingly, the record establishes that Childers’ payment of the funds resulted from Salazar’s
criminal use of Childers’ social security number.
The record also amply demonstrates that Childers paid, without reimbursement, $29 a
month for the credit monitoring services and that the services were in place for more than seven
months. Accordingly, the record establishes that Childers spent more than $200 for the credit
monitoring services. Thus, the sole remaining question is whether such payments constitute a
“financial loss” within the meaning of Code § 18.2-186.3(D).
In general, crime victims are not entitled to restitution for costs incurred to prevent further
criminal activity. For example, in Howell v. Commonwealth, 274 Va. 737, 652 S.E.2d 107
(2007), the Supreme Court reversed a trial court’s restitution award that reimbursed the burglary
victim for the costs incurred to install a security system to help stop losses that might be
occasioned by future burglaries. Id. at 741, 652 S.E.2d at 109. The Supreme Court reasoned that
such expenses were not the direct result of the burglary, and therefore, could not be recovered in
restitution as having been “caused by the offense.” Id.
Although the reasoning of Howell might suggest that Childers has not suffered the
requisite financial loss, Howell is distinguishable. First, on the record before us, it is clear that
Childers contracted for credit monitoring services as a direct result of appellant’s yet-to-be
discovered criminal use of Childers’ social security number and not merely to prevent or
ameliorate a second criminal event that was yet to occur.
9
We do not address a scenario in which a person’s identifying information is used in
violation of Code § 18.2-186.3(A)(2), but that person had contracted for credit monitoring
services prior to the misappropriation of his identifying information.
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Second, and more importantly, the General Assembly has made clear that such costs
incurred by victims of violations of Code § 18.2-186.3(A)(2) are one of the very evils the statute
was enacted to combat. Specifically, Code § 18.2-186.3(E) provides that
Upon conviction, in addition to any other punishment, a person
found guilty of this offense shall be ordered by the court to make
restitution as the court deems appropriate to any person whose
identifying information was appropriated or to the estate of such
person. Such restitution may include the person’s or his estate’s
actual expenses associated with correcting inaccuracies or errors in
his credit report or other identifying information.
Because the General Assembly made such payments subject to an award of restitution, we
conclude that, taking the statutory scheme as a whole, such payments can be used to establish a
financial loss resulting from the violation of Code § 18.2-186.3(A)(2). Accordingly, the evidence
was sufficient to support the factfinder’s determination that appellant’s illegal conduct “result[ed]
in [a] financial loss of greater than $200,” and therefore, we affirm appellant’s conviction for a
felony violation of Code § 18.2-186.3(A)(2). See Code § 18.2-186.3(D).10
CONCLUSION
For the foregoing reasons, we find that the evidence was sufficient for the trial court to
conclude, beyond a reasonable doubt, that appellant was guilty of violating Code
§ 18.2-186.3(A)(2) and that such violation resulted in a financial loss in excess of $200.
Accordingly, the judgment of the trial court is affirmed.
Affirmed and remanded.
10
For the first time on appeal, appellant argues that the “financial loss” aspect of
Code § 18.2-186.3 is impermissibly vague because it is not reasonably defined in terms of who
must have sustained the loss in order for the court, or an accused, to ascertain what constitutes a
felony or misdemeanor offense. We will not consider on appeal an argument that appellant did
not raise in the trial court. Rule 5A:18.
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