Rita Fay Darby v. Commonwealth of Virginia

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Judges Alston and Chafin UNPUBLISHED

Argued at Salem, Virginia

RITA FAY DARBY MEMORANDUM OPINION* BY v. Record No. 1295-13-3 CHIEF JUDGE WALTER S. FELTON, JR. MAY 20, 2014 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE William N. Alexander, II, Judge

Jason S. Eisner, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Rita Fay Darby (“appellant”) appeals her conviction of credit card fraud, in violation of

Code § 18.2-195, following a bench trial in the Circuit Court of the City of Danville (“trial court”).1

Appellant asserts that her use of a credit card account that she opened in her former husband’s

name, without his knowledge or permission, did not constitute credit card fraud because at the

time she made the fraudulent application for credit, she listed herself as the authorized user of the

account.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant also pled guilty and was convicted of identity theft, in violation of Code § 18.2-186.3. Appellant does not contest that conviction on appeal. I. BACKGROUND

In August 2012, appellant used the identifying information of her former husband, Roy

Darby (“Roy”), without his knowledge or consent, to secure a Capital One credit card in his name.2

At the time she applied for the Capitol One credit card in her former husband’s name, appellant

named herself as an authorized user of the credit card account. Roy had no knowledge that

appellant opened the credit card account, and he did not consent to her being listed as an authorized

user of any account opened in his name. Appellant and Roy had dissolved the last of their joint

accounts eight years earlier in 2004, and Roy did not add appellant as an authorized user to any of

his accounts in August 2012.3

From August 23 through 25, 2012, appellant used Roy’s credit card account to obtain

$408.21 worth of goods and services in the City of Danville.4

By letter dated August 19, 2012, the Capital One Customer Fraud Protection unit advised

Roy that “a possible fraudulent Capitol One account . . . ha[d] recently been opened using some

or all of [his] personal information.”

On October 31, 2012, appellant volunteered to speak with Investigator Jeremy Williams

of the Danville Police Department. Appellant admitted to Investigator Williams that she opened

a Capitol One credit card account using her former husband’s identifying information, without

his knowledge or permission. In the written statement she provided to Investigator Williams,

appellant stated that she opened a “joint account” with Roy. She admitted that she did not have

2 Among other things, appellant provided Capitol One with Roy’s name, social security number, date of birth, and annual gross income in order to open the credit card account. 3 At appellant’s trial on May 16, 2013, Roy testified that he and appellant were divorced and that the couple had been separated for one and a half years. 4 According to Capitol One records introduced at trial, appellant also used the fraudulently obtained credit card account to obtain additional goods and services in other locations. -2- Roy’s permission to open the account, but stated inexplicably that she “did not know [she] had to

have [her] husband[’]s permission to obtain the card.” Appellant professed that she did not know

she had done “anything wrong.”

In December 2012, Roy sent a text message to appellant, asking how many credit cards

she had opened in his name. Appellant responded via text message that she opened “[one] credit

card and it was me so I could move in my apartment and rent a truck and move out of my moms

[sic].”

At trial on May 16, 2013, appellant pled guilty to the indictment charging her with

identity theft, in violation of Code § 18.2-186.3. She pled not guilty to the indictment charging

that she had committed credit card fraud by using “a Capital One credit card issued in the name

of Roy Darby,” in violation of Code § 18.2-195. The trial court admitted a written stipulation of

facts, agreed upon by appellant and the Commonwealth. The written stipulation provided, inter

alia, that Roy’s identifying information was used to open a Capitol One credit card account. The

stipulation provided that appellant “was made an authorized user” of the account.

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

Commonwealth’s evidence. She asserted that she “was an authorized user of [the Capitol One

credit] card and her conduct in using th[e] card [was] identity theft.” She contended that her use

of the credit card account she fraudulently opened in Roy’s name did not violate Code

§ 18.2-195, the credit card fraud statute, because she listed herself as an authorized user of the

credit card at the time she made the fraudulent application for credit.5

The court rejected appellant’s argument and convicted her of credit card fraud, in

violation of Code § 18.2-195, and identify theft, in violation of Code § 18.2-186.3. The trial

5 Appellant did not present any evidence on her behalf at trial. -3- court sentenced appellant to four years’ imprisonment, with all four years suspended, and

eighteen months’ supervised probation.

II. ANALYSIS

Appellant argues that the trial court erred by finding that the Commonwealth presented

sufficient evidence to sustain her conviction of credit card fraud, in violation of Code § 18.2-195.

She asserts that she did not commit credit card fraud because the Capitol One credit card “was

issued to her, albeit as a result of her fraudulent misrepresentation.” Appellant’s Br. at 7. She

contends that, while her fraudulent misrepresentation to obtain the Capitol One credit card

constituted identity theft, in violation of Code § 18.2-186.3, her subsequent use of a credit card

“issued to her” did not constitute credit card fraud, in violation of Code § 18.2-195.

“When reviewing the sufficiency of the evidence to support a conviction, the Court will

affirm the judgment unless the judgment is plainly wrong or without evidence to support it.”

Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). The issue on appeal

is “whether the record contains evidence from which any ‘rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.’” Young v. Commonwealth, 275

Va. 587, 591, 659 S.E.2d 308, 310 (2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)).

To the extent that appellant’s assignment of trial court error “presents ‘a question of

law . . . involv[ing] the interpretation and application’ of Code § 18.2-195,” the Court reviews

“‘the trial court’s judgment de novo.’” Saponaro v. Commonwealth, 51 Va. App. 149, 150-51,

655 S.E.2d 49, 50 (2008) (quoting Colbert v. Commonwealth, 47 Va. App. 390, 394, 624 S.E.2d

108, 110 (2006)).

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: -4- * * * * * * *

(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 . . . .

Code § 18.2-191 defines “cardholder” as “the person or organization named on the face

of a credit card to whom or for whose benefit the credit card is issued by an issuer.”

Appellant asserts that, as an authorized user of the Capitol One credit card account she

procured by fraud, she was the “holder” of the card. Appellant’s Br. at 7. She asserts that,

despite having fraudulently attained her status as an authorized user of the credit card, she

nonetheless did not violate Code § 18.2-195 because she was, in fact, a “holder” of the account at

the time she used the account to obtain goods and services. Id.

In Saponaro, 51 Va. App. 149, 655 S.E.2d 49, this Court reversed the defendant’s

conviction of credit card fraud, in violation of Code § 18.2-195. Saponaro’s employer had

provided him with a business credit card to make purchases for the employer. During a

five-month period, Saponaro charged thousands of dollars’ worth of personal items to the credit

card, despite knowing that the card was to be used for business purposes only. In reversing

Saponaro’s conviction of credit card fraud, this Court noted that it was “undisputed [that]

Saponaro had the consent of the cardholder ([employer]) to hold the credit card during the entire

period he was making his personal purchases on the card.” Id. at 151, 655 S.E.2d at 50. The

Court identified the “threshold issue” as “whether Saponaro, when engaged in the subject

transactions, had the cardholder’s consent to possess the card. The fact that Saponaro had such

consent is . . . dispositive.” Id. at 152, 655 S.E.2d at 50. The Court held that the focus of Code

§ 18.2-195, and the crime of credit card fraud, is an individual’s “misuse of a credit card

wrongfully in his or her possession,” rather than an individual’s “use of a credit card that he

holds with the cardholder’s consent.” Id. at 151-52, 655 S.E.2d at 50-51.

-5- In a case decided more than two years after its decision in Saponaro, this Court affirmed

convictions of credit card fraud in Kovalaske v. Commonwealth, 56 Va. App. 224, 692 S.E.2d

641 (2010). In Kovalaske, the accused had permission from his employer to use a company

credit card on only two occasions. However, Kovalaske made unauthorized purchases with the

credit card on occasions when he did not have permission from his employer to use the credit

card. In affirming his convictions of credit card fraud, the Court held that, unlike Saponaro,

Kovalaske “did not misuse his employer’s credit card while it was in his lawful possession;

[Kovalaske] misused [the employer’s] credit card while it was in his wrongful possession.” Id. at

232-33, 692 S.E.2d at 646. Kovalaske’s wrongful possession of the credit card was dispositive

in this Court’s decision affirming his convictions of credit card fraud.

Here, appellant concedes that she obtained the Capitol One credit card “as a result of her

fraudulent misrepresentation.” Appellant’s Br. at 7. She affirmed in her text message exchange

with Roy that she opened the Capitol One credit card in his name, and she admitted to

Investigator Williams that she did not have Roy’s permission to open the Capitol One account.

Roy testified that he had no knowledge of the account and did not give permission to appellant to

open or to use any credit card accounts issued in his name. For her part, appellant inexplicably

asserted in her written statement to police that she did not know she needed Roy’s permission to

open an account in his name. Beyond appellant’s self-serving statements, which the trial court as

fact finder rejected,6 there was more than sufficient evidence presented at trial to establish that

appellant misused the fraudulently obtained Capitol One credit card, issued in her former

husband’s name, while the card was in her wrongful possession. Kovalaske, 56 Va. App. at

232-33, 692 S.E.2d at 646.

6 “In its role of judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the accused [was] lying to conceal his guilt.” Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998). -6- III. CONCLUSION

The evidence presented at trial was sufficient to prove beyond a reasonable doubt that

appellant wrongfully acquired, possessed, and misused a credit card issued in Roy’s name,

without Roy’s knowledge or consent. Accordingly, the trial court did not err by convicting

appellant of credit card fraud, in violation of Code § 18.2-195.

Affirmed.

-7-