Cynthia Elizabeth Ford, a/k/a Cynthia Torres v. CW

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Frank
Argued at Chesapeake, Virginia
CYNTHIA ELIZABETH FORD, A/K/A
CYNTHIA TORRES
MEMORANDUM OPINION * BY
v. Record No. 1276-00-1 JUDGE JAMES W. BENTON, JR.
MAY 8, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
Thomas L. Watkins, Deputy Public Defender,
for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial judge convicted Cynthia Elizabeth Ford of
attempted credit card fraud in violation of Code § 18.2-195.
Ford challenges her conviction on the grounds that the evidence
was insufficient and that the trial judge erred by admitting
evidence the Commonwealth failed to disclose during discovery.
We hold that the evidence was insufficient to support the
conviction, and we reverse her conviction.
I.
The evidence proved that a female telephone caller
contacted a Dillard's Department Store in Virginia Beach on
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
September 27, 1999 and spoke with a customer service clerk. The
caller asked to purchase two gift certificates in the amount of
$400 each, gave the clerk the number of a VISA credit card
account, spelled her own name as "Maler," and said her
granddaughter would come for the certificates that afternoon.
The Commonwealth offered these statements "not . . . for the
truth of the matter but only why [the clerk] did what she did."
The Commonwealth introduced no evidence identifying the VISA
account number the caller gave the clerk. The clerk reported
the incident to the store supervisor.
Early that afternoon, Ford arrived at the store and told
another customer service employee that she was there to obtain
gift certificates her grandmother had purchased over the
telephone. The store supervisor intervened and interviewed Ford
while an off-duty police officer took notes. When Ford said her
grandmother's name was "Sheila Malher," and "spelled it
M-a-l-h-e-r," the supervisor asked how he could contact Malher.
Ford said Malher had no home phone number and gave him a
cellular phone number and an address. When the supervisor and
the officer dialed that number, they received a message that the
service was disconnected. Ford gave the supervisor her own
identification displaying the name "Torres" and said she was
recently divorced and using her name, Ford, again.
Sheila Maher testified that she worked as a real estate
agent in an office where Ford had been a receptionist. Maher
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testified that Ford's job included opening the mail. Maher also
testified that she received her VISA account bill at her work
address but never received a statement for August or September
1999. During Maher's testimony, she displayed her credit card,
which was admitted into evidence as an exhibit.
Ford moved to strike the evidence both at the end of the
Commonwealth's case and after she notified the trial judge she
would present no evidence. The judge denied both of the motions
and convicted Ford of attempted credit card fraud in violation
of Code § 18.2-195.
II.
In assessing the sufficiency of the evidence on appeal
after a conviction, we view the evidence in the light most
favorable to the Commonwealth, the prevailing party below, and
accord to that evidence all reasonable inferences fairly
deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975). When the Commonwealth relies
on circumstantial evidence to prove guilt, however, "all
necessary circumstances proved must be consistent with guilt and
inconsistent with innocence and exclude every reasonable
hypothesis of innocence." Bishop v. Commonwealth, 227 Va. 164,
169, 313 S.E.2d 390, 393 (1984). "To satisfy the due process
requirements of the . . . Constitution, the prosecution must
bear the burden of proving all elements of the offense beyond a
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reasonable doubt." Stokes v. Warden, 226 Va. 111, 117, 306
S.E.2d 882, 885 (1983).
Pertinent to this appeal, Code § 18.2-195(1)(a) provides
that "[a] person is guilty of credit card fraud when, with
intent to defraud any person, [she] . . . [u]ses 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." The relevant part of Code
§ 18.2-192(1)(a) provides that "[a] person is guilty of . . .
credit card number theft when . . . [she] takes, obtains or
withholds a . . . credit card number from the person,
possession, custody or control of another without the
cardholder's consent."
The use of a credit card or a credit card number is an
essential element in the offense of credit card fraud. "An
attempt to commit a crime is composed of two elements: (1) the
intent to commit it; and (2) a direct, ineffectual act done
toward its commission." Barrett v. Commonwealth, 210 Va. 153,
156, 169 S.E.2d 449, 451 (1969). The Commonwealth must prove
each element of the offense beyond a reasonable doubt. In this
case it did not do so.
The direct evidence shows that Ford went to the store on
the date in question and inquired about gift certificates, which
she alleged her grandmother bought for her. No evidence proved
that Ford ever attempted to use a credit card number in this
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encounter. Although the clerk testified the telephone caller
identified herself as "Maler," Ford identified the person who
sent her as "Malher." To convict Ford, the finder of fact had
to infer from the similarity of names used that Ford either
placed the call herself or knew the caller had used a credit
card number without consent. Otherwise, no connection exists
between Ford and the fact that the caller mentioned a credit
card number.
Those inferences, however, are not the only reasonable
inferences to be drawn from the evidence. The evidence does not
exclude the reasonable inference that a person named Maler
placed the call or that Ford had no knowledge of the use of a
credit card number. Either of these hypotheses is consistent
with innocence. Elements of a crime must be proved beyond a
reasonable doubt and not left to speculation. Strawderman v.
Commonwealth, 200 Va. 855, 860, 108 S.E.2d 376, 380 (1959).
Furthermore, no evidence proved even that the caller used
Sheila Maher's credit card number when requesting the gift
certificates. The evidence does not prove what number was given
to the clerk. At trial, the prosecutor represented that the
store discarded its record of the information the caller gave.
Thus, the implication that Ford stole Maher's VISA statement and
caused her number to be used is purely speculative. The only
evidence linking the caller, Ford, and Maher to Maher's credit
card is the similarity in the names Maler, Malher, and Maher.
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Such evidence provides only a probability that Ford was
attempting to use Maher's credit card number to violate the
statute in question. A mere probability, however, is not
sufficient to convict a defendant beyond a reasonable doubt.
Sheppard v. Commonwealth, 250 Va. 379, 387, 464 S.E.2d 131, 136
(1995). Accordingly, we reverse the conviction and dismiss the
indictment.
Because we reverse this conviction on the grounds of
sufficiency of the evidence, we do not reach the discovery issue
in the case.
Reversed and dismissed.
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