Mildred Baldwin v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: November 15, 2011
• Docket: 2262104
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Petty, Alston and Senior Judge Coleman Argued by teleconference

MILDRED BALDWIN MEMORANDUM OPINION * BY v. Record No. 2262-10-4 JUDGE ROSSIE D. ALSTON, JR. NOVEMBER 15, 2011 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA Lisa B. Kemler, Judge

Paul E. Pepper, Deputy Public Defender (Office of the Public Defender, on brief), for appellant.

Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.

Mildred Baldwin (appellant) appeals her convictions for credit card theft in violation of

Code § 18.2-192(1)(a) and credit card fraud in violation of Code § 18.2-195. On appeal,

appellant argues that the trial court erred in finding her guilty of credit card theft and credit card

fraud, claiming that the evidence did not establish venue in the City of Alexandria. Finding no

reversible error, we affirm.

I. Background 1

Appellant was employed as a comptroller at Calvert Jones Company, located on Edsall

Road in Alexandria, Virginia. Appellant’s duties included management of the “books and

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 As the parties are fully conversant with the record in this case and because this memorandum opinion carries no precedential value, this opinion recites only those facts and incidents of the proceedings as are necessary to the parties’ understanding of the disposition of this appeal. records” of the company. Appellant was laid off on October 19, 2009. On this date, a human

resources employee and George Petty, the chief financial officer of the company, informed

appellant that her employment was terminated, and Petty instructed appellant to pack up her desk

and leave. Petty did not supervise appellant as she packed up her office and left the premises.

During appellant’s employment with the company, she had held a company credit card

issued by Bank of America in the name of another employee. Appellant was authorized to use

the credit card for business purposes during her employment. On February 19, 2010, Petty

became aware that appellant was still using the credit card and that appellant had changed the

billing statement address for the credit card from the company’s offices in Alexandria to her

home in Maryland. Petty contacted appellant and asked her to return the credit card and make

restitution to the company. Appellant responded that she could not return the credit card because

she had destroyed it. Appellant also said that she did not have the money to make restitution.

On June 14, 2010, appellant was indicted for credit card theft and credit card fraud. Prior

to trial, appellant moved to dismiss for lack of venue. Appellant argued that no act in

furtherance of the crimes of credit card theft or credit card fraud occurred in the City of

Alexandria. Following a hearing on appellant’s motion to dismiss, the trial court denied the

motion but stated that appellant could “reraise[ ] this issue after the Commonwealth has

presented its case in chief.”

Appellant was tried in a bench trial on July 23, 2010. At trial, Valerie Dunigan, a credit

card investigator for Bank of America, testified that between the issuance of the September 21,

2009 and October 21, 2009 billing statements for the credit card, the address on the account was

changed from the company’s address on Edsall Road in Alexandria, Virginia, to an address in

Waldorf, Maryland. Dunigan also testified that after October 19, 2009, none of the purchases or

transactions using the credit card were made in Virginia and that six payments had been made on -2- the card from November 16, 2009, to July 1, 2010. The credit card billing statements were

admitted into evidence.

Petty also testified at trial. Petty described generally the various legitimate and

illegitimate uses of a company credit card, including the possible legitimate use of the credit card

for nonbusiness purchases or to receive a loan, with the permission of the company. Petty

testified that he had not authorized nonbusiness use of the credit card by appellant or a loan to

appellant using the credit card, but acknowledged that it was possible that she could have

received authorization from another employee. Petty testified that appellant did not have

permission to take or use the credit card when her employment was terminated on October 19,

2009.

Petty also reviewed the credit card billing statements from October 21, 2009, through

February 19, 2010. He testified that the address where the billing statements were sent in

Waldorf, Maryland, was appellant’s address. He had verified appellant’s address through payroll

records. He also testified that three charges made on the credit card before the date of

appellant’s termination were not legitimate business expenses: charges to State Farm insurance

and a Wawa convenience store in Waldorf, Maryland, made on October 15, 2009, and a charge

to a 7-Eleven convenience store in Brandywine, Maryland, made on October 18, 2009. 2 Petty

testified further that none of the charges shown by the billing statements from October 19, 2009,

to February 19, 2010, were legitimate business expenses, although he acknowledged that there

were three charges that were “at least possibly business expenses.”

Finally, Officer Sarah Smith of the City of Alexandria Police Department testified

regarding her investigation of appellant’s use of the credit card. Appellant’s written statement

2 Appellant was not charged with any crime for her use of the credit card on October 15 or 18, 2009. Her convictions in the instant case were based solely upon her use of the credit card from October 19, 2009, to February 2010. -3- made after her arrest was admitted into evidence through the testimony of Officer Smith. In the

written statement, appellant stated that she accidentally removed the credit card from her desk

along with her other papers when her employment was terminated. Appellant admitted that she

used the credit card for personal expenses.

At the conclusion of the Commonwealth’s evidence, appellant moved to strike the

evidence as insufficient, arguing that the Commonwealth had not established that venue was

proper in the City of Alexandria. The trial court denied the motion. Appellant presented no

evidence, rested her case, and renewed her motion to strike in closing argument. The trial court

again denied the motion and found appellant guilty. The trial court found that the personal

charges made using the credit card on October 15 and 18, 2009, before appellant’s employment

was terminated, provided strong evidence that countered appellant’s claim that she inadvertently

took the card when she left the company on October 19, 2009.

The trial court sentenced appellant to a total of twenty-four months’ imprisonment and

suspended the twenty-four months. This appeal followed.

II. Analysis

We note at the outset that, on appeal, appellant challenges the trial court’s holding that

venue in Alexandria was proper for the charges of credit card theft and credit card fraud, and not

the sufficiency of the evidence supporting her convictions. “When venue is challenged on

appeal, we determine ‘whether the evidence, when viewed in the light most favorable to the

Commonwealth, is sufficient to support the [trial court’s] venue findings.’” Morris v.

Commonwealth, 51 Va. App. 459, 464-65, 658 S.E.2d 708, 710-11 (2008) (quoting Cheng v.

Commonwealth, 240 Va. 26, 36, 393 S.E.2d 599, 604 (1990)). To decide whether venue is

proper, “a court must determine whether the evidence . . . gave rise to a ‘strong presumption’ that

the offense was committed within the jurisdiction of the court.’” Meeks v. Commonwealth, 274 -4- Va. 798, 802, 651 S.E.2d 637, 639 (2007) (quoting Cheng, 240 Va. at 36, 393 S.E.2d at 604)

(internal quotation marks omitted).

We note that “[f]or most crimes, venue is proper in the jurisdiction where all the elements

of the completed crimes were committed.” Gheorghiu v. Commonwealth, 54 Va. App. 645, 655,

682 S.E.2d 50, 55 (2009) (citing Green v. Commonwealth, 32 Va. App. 438, 448, 528 S.E.2d

187, 192 (2000)), aff’d in part, rev’d in part on other grounds, 280 Va. 678, 701 S.E.2d 407

(2010). However, the General Assembly has enacted a special venue statute for credit card theft

and credit card fraud. In this regard, Code § 18.2-198.1 provides, in pertinent part, “[A]

prosecution for a violation of this article may be had in any county or city in which (i) any act in

furtherance of the crime was committed . . . .”

In its assessment of the circumstances of the instant case, the trial court found, as a matter

of fact, that appellant took the credit card purposely, as opposed to inadvertently, from the

company’s offices in Alexandria, Virginia, when she was terminated from her employment. “On

review, we will not disturb the factual findings of the trial court unless plainly wrong or

unsupported by the evidence.” Robinson v. Commonwealth, 273 Va. 26, 39, 639 S.E.2d 217,

224 (2007) (citing Mercer v. Commonwealth, 259 Va. 235, 243, 523 S.E.2d 213, 217 (2000)).

The trial court’s factual findings regarding appellant’s purposeful taking of the credit card were

not plainly wrong or unsupported by the evidence. The evidence showed that appellant used the

credit card for nonbusiness purposes on October 15 and 18, 2009, before she was terminated.

These uses support the conclusion that when appellant took the credit card on October 19, 2009,

appellant intended to continue to use it for nonbusiness purposes. In addition, the uncontroverted

evidence established that the mailing address for the credit card’s billing statement was changed

from the company’s address to appellant’s home address sometime between September 21, 2009,

and October 21, 2009. The evidence of this change of address could circumstantially lead to the -5- conclusion that appellant changed the billing statement before or very shortly after taking the

credit card to conceal her use of the credit card, thus discrediting her claim that she took the

credit card inadvertently. The trial court’s factual finding that appellant took the credit card

purposefully on October 19, 2009, from the company’s Alexandria offices is not plainly wrong,

when considered with the circumstances surrounding appellant’s pre-termination use of the

credit card for nonbusiness purposes and change of address for the billing statement of the credit

card. As a result, we are bound by the trial court’s factual finding on appeal.

Moreover, appellant’s purposeful taking of the credit card from Alexandria is sufficient

to establish venue in Alexandria for both credit card theft and credit card fraud. The Virginia

Supreme Court has held that “credit card theft is completed where the card or number is

unlawfully taken from its rightful owner . . . with the intent to use it, sell it, or transfer it.”

Meeks, 274 Va. at 803, 651 S.E.2d at 640. Viewed in the light most favorable to the

Commonwealth, the evidence proved that appellant unlawfully took the credit card from its

rightful owner, her former employer, with the intent to use it when she was terminated on

October 19, 2009, thereby completing the crime of credit card theft in Alexandria. Moreover,

the act of credit card theft in violation of Code § 18.2-192 was also an act in furtherance of credit

card fraud. Code § 18.2-195(1)(a) defines credit card fraud as the “[u]se[ ] [of] . . . a credit card

. . . obtained or retained in violation of [Code] § 18.2-192” for “the purpose of obtaining money,

goods, services or anything else of value.” Thus, to commit credit card fraud under this part of

Code § 18.2-195, one must first obtain a credit card by theft, in violation of Code § 18.2-192. As

stated earlier, appellant committed credit card theft in Alexandria when she purposefully took the

credit card with the intent to use it for her personal purposes. Appellant later committed credit

card fraud. Appellant’s theft of the credit card was the precursor to, and as such an act in

-6- furtherance of, her later credit card fraud. 3 As a result, the trial court did not err in holding that

venue was proper in Alexandria for the charges of credit card theft and credit card fraud.

Affirmed.

3 We note that the instant case is distinguishable from Gheorghiu v. Commonwealth, 280 Va. 678, 701 S.E.2d 407 (2010), because the theft of the credit card in Alexandria in the instant case occurred before the fraudulent use of the credit card. In contrast, in Gheorghiu, the Supreme Court of Virginia held that the defendant’s unlawful possession of a credit card in violation of Code § 18.2-192 in Arlington County was insufficient to establish venue for credit card fraud in Arlington County because the defendant was found in possession of the credit card in Arlington County after he had already committed the credit card fraud in Fairfax County the previous day. 280 Va. at 688, 701 S.E.2d at 413. In Gheorghiu, “the crime of credit card fraud . . . was complete” by the time the defendant was found in unlawful possession of the credit card in Arlington County. Id. In contrast, in the instant case, appellant was convicted of credit card fraud for acts committed after she had first committed credit card theft in Alexandria. -7-