                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia


OLAOLU WILSON OYEJOLA
                                         MEMORANDUM OPINION * BY
v.   Record No. 1315-96-2              JUDGE JAMES W. BENTON, JR.
                                             JUNE 17, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                    Oliver A. Pollard, Jr., Judge
           Joseph A. Sadighian, Assistant Public
           Defender, for appellant.

           Steven A. Witmer, Assistant Attorney General
           (James S. Gilmore, III, Attorney General, on
           brief), for appellee.



      Olaolu Wilson Oyejola was convicted by a judge of credit

card fraud.   An appeal was granted on the issue raised by Oyejola

in his petition for appeal, to wit:   "whether the evidence was

sufficient to sustain a finding that [Oyejola] took the credit

card from the bank or the holder of the card without consent and

with the intent to use it."   Although Oyejola's counsel raised

other issues in his brief on appeal, we decide only the issue

raised in the petition, and we reverse the conviction.

                                 I.

      Prior to trial, the indictment against Oyejola was amended

to state that he "did take, obtain, or withhold a credit card

from the person, possession, custody, or control of Central

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Fidelity Bank, w[ith] the intent to use or sell it without the

consent of Central Fidelity Bank, Va. Code Sec. 18.2-192."

Oyejola's counsel did not object to the amendment.   Oyejola

pleaded not guilty and waived his right to a jury trial.

     At trial, an investigator employed by the Central Fidelity

Bank in Richmond testified that the bank received a credit card

account application in the name of Karen T. Soliday at 22 East

Filmore Street, Petersburg.   The investigator sought to verify

information on the application because the bank had received

three credit card applications requesting that the cards be sent

to 22 East Filmore Street, and the similarities in the

handwriting suggested to him that the applications may be

fraudulent.    The investigator also stated that he had difficulty

verifying the information on the applications.    In particular, he

called the employer listed on Soliday's application and was told

that the employer had no employee by that name.   The investigator

contacted the Petersburg Police Department.
     After contacting the police, the investigator had a credit

card made and put the card into a mailer containing the name

"Karen T. Soliday" and addressed to 22 East Filmore Street.

Tucker put the card and mailer into an envelope and gave it to a

Petersburg police officer.

     The police officer arranged to have the postal service

deliver the envelope while the police conducted a surveillance at

the address.   A police officer testified that he observed Oyejola




                                - 2 -
at that residence prior to the delivery.    The officer also

testified that because the envelope did not have an apartment

number on it, the envelope was placed on top of the mailboxes at

the apartment building and not inside a particular mailbox.

     The officer observed a man leave the building, approach the

mailboxes, and take the envelope.    The officer did not see the

face of the man.    The man then returned to the apartment

building.    About thirty minutes later, the officer observed

Oyejola leave the building.    The officers in the surveillance

team followed Oyejola while he was driving.    They stopped his

vehicle after a few minutes.
     A police officer asked Oyejola to exit the vehicle and

obtained Oyejola's consent to search.    The officer removed the

torn envelope from the bank.    He then arrested Oyejola.    In the

ensuing search, the officer found in Oyejola's wallet the credit

card issued to Karen Soliday.    The officer also found several

business cards containing in handwriting various names,

addresses, telephone numbers, and Social Security numbers.

     After Oyejola received his Miranda rights and signed a

waiver form, Oyejola told the officers that he planned to use the

credit card to pay his rent.    Later, Oyejola wrote the following

statement:
             I have been questioned about a credit card
             from Central Fidelity Bank, Account #
             4060-6143-5023-3034, in the name of Karen T.
             Soliday.
                  On 09/21/95, I took this credit card out
             of the envelope when the card was delivered
             to 22 E. Fillimore Street, Petersburg, VA;



                                 - 3 -
             which is also the address where I live. I
             live in Apt-B and the mail is delivered to
             several mailboxes outside the front of the
             building.
                  After opening the envelope, I put the
             credit card inside my wallet. I have been
             shown a copy of a credit card application in
             the name of Karen T. Soliday and I did not
             fill out this application, and I do not know
             who did complete this application.


Oyejola also told the officers "that he was going to use the card

to go to the ATM machine."

     A United States Secret Service agent testified that Oyejola

said he had applied for credit cards in other names.    None was

the name Karen Soliday.
     At the close of the Commonwealth's case, the trial judge

informed the prosecutor that although the indictment charged that

Oyejola took the card from the bank, the evidence showed that the

card was issued in the name of an individual.    The judge

suggested that the prosecutor amend the indictment to charge

Oyejola with "'withholding the card from the bank or Karen

Soliday.'"    The prosecutor asserted that the card belonged to the

bank at the time and "never was in the custody of Karen Soliday."

Nevertheless, the prosecutor stated that she "would like to"

amend the indictment.    Oyejola's counsel did not object to this

second amendment.

     The prosecutor then re-opened the Commonwealth's case and

recalled the bank's investigator.    The investigator testified

that "[t]he card always belongs to the issuing bank" even though

it is issued for the use of the person whose name appears on the



                                 - 4 -
card.    He also stated that the fact that the card is owned by the

bank is stated in the truth and lending statement.     However, he

did not recall placing a truth and lending statement in the

envelope sent to Filmore Street.    Oyejola's counsel made a motion

to strike and argued as follows:
          [T]he indictment as stated claims that the
          card was taken or withheld from the person's
          possession, custody, or control of Central
          Fidelity Bank; however, Investigator Tucker
          cannot present any authority upon which this
          statement is based or the card always
          belonging to the issuing bank.
                There's no evidence of a truth and lending
             statement having been included in this
             controlled delivery.

                I further move to strike to the
             sufficiency of the evidence. The card was
             delivered to 22 East Filmore Street. There's
             no evidence that Karen Soliday did not live
             there. Again, at most, Mr. Oyejola would
             have withheld the card from Ms. Soliday
             herself.

                There's no evidence that he actually
             picked up the envelope in the mail slot.
             Someone did. He was found with it on his
             person later on. For those reasons we would
             ask the Court to strike the case against Mr.
             Oyejola.


        The judge overruled the motion.   Oyejola did not offer

evidence on his own behalf.    Oyejola's counsel renewed his motion

to strike and argued, in pertinent part, as follows:
          [W]e would argue the same things that we
          argued on the motion to strike. The
          indictment itself indicates that the credit
          card was withheld from Central Fidelity Bank;
          however, it was issued to Karen Soliday.
          There was no authority that the bank itself
          owns the card. There's no evidence that
          Karen Soliday didn't live at that address or



                                 - 5 -
           perhaps received the credit card herself and
           handed it to Mr. Oyejola.


The trial judge convicted Oyejola, finding that he "[t]ook the

card . . . with the intent to use it for his own benefit without

the consent of the bank or the holder of the card."

                                 II.

     In pertinent part, Code § 18.2-192 provides as follows:
          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 or
           who, with knowledge that it has been so
           taken, obtained or withheld, receives the
           credit card or credit card number with intent
           to use it or sell it, or to transfer it to a
           person other than the issuer or the
           cardholder; or
                (b) He receives a credit card or credit
           card number that he knows to have been lost,
           mislaid, or delivered under a mistake as to
           the identity or address of the cardholder,
           and who retains possession with intent to
           use, to sell or to transfer the credit card
           or credit card number to a person other than
           the issuer or the cardholder . . . .


     The indictment charged that Oyejola "did take, obtain, or

withhold a credit card from the person, possession, custody, or

control of . . . [the] Bank . . . without the consent of . . .

[the] Bank." 1   From the wording of the indictment, it appears
     1
      We note that although Oyejola failed to raise the issue in
this appeal, the indictment charging Oyejola with a violation of
Code § 18.2-192 was invalid. The bank was not the cardholder;
the bank was the issuer of the card. See Code § 18.2-192(a).
The cardholder is "the person . . . named on the face of [the]
credit card to whom or for whose benefit the credit card is



                                - 6 -
that the Commonwealth sought to prosecute Oyejola for a violation

of Code § 18.2-192(a).       The Commonwealth does not suggest any

other possibility.

issued by an issuer." Code § 18.2-192. Thus, a charge that
Oyejola withheld the card from the bank was not a valid charge
under Code § 18.2-192(a).

     Indeed, following the presentation of its evidence, the
trial judge suggested that the indictment be amended. The
following colloquy ensued:

          THE COURT: Let me ask you something before
          you close your case. The charge is that he
          took and withheld a credit card from the
          bank.
          [PROSECUTOR]:       Yes, Your Honor.

          THE COURT: The card was in the name of an
          individual.

          [PROSECUTOR]: That's correct, Your Honor.
          Although the individual --

          THE COURT: The only thing you would have
          would be circumstantial if you were prepared
          to go forward on that. What I'm asking the
          State is it would be advised amending the
          indictment to include "withholding the card
          from the bank or Karen Soliday."

                 *       *      *    *       *    *    *

          THE COURT: All right. Is the State not
          going to amend the indictment to correspond
          with the facts? I think the Court had the
          right to accept the amendment.

          [PROSECUTOR]:       Yes, sir.     I would like to do
          that as well.

The record contains no evidence beyond this colloquy that the
indictment was amended. Furthermore, even assuming that the
amendment was effective, the amendment as stated by the trial
judge still failed to allege that the conduct occurred "without
the cardholder's consent." Code § 18.2-192.



                                    - 7 -
     We agree with Oyejola and hold that the evidence was

insufficient to sustain a conviction for violating Code

§ 18.2-192(a).   No evidence proved that Oyejola's conduct

occurred "without the cardholder's consent."    Id.   The

Commonwealth failed to prove whether Karen Soliday, the

cardholder, is an actual person.   Even assuming Karen Soliday is

a person, the Commonwealth failed to prove that she withheld

consent for Oyejola to possess her credit card.
     "[W]here the Commonwealth's evidence as to an element of an

offense is wholly circumstantial, 'all necessary circumstances

proved must be consistent with guilt and inconsistent with

innocence and exclude every reasonable hypothesis of innocence.'"

 Moran v. Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553

(1987) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228

S.E.2d 563, 567 (1976)).   The Commonwealth failed to exclude the

reasonable hypothesis that Karen Soliday gave Oyejola permission

to retrieve the credit card from the mailbox.   At most, this

evidence creates merely a suspicion of guilt.   However,

suspicion, alone, is not enough to sustain a conviction.     See

Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197

(1981) ("Suspicion . . . no matter how strong, is insufficient to

sustain a criminal conviction."); see also Bridgeman v.

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02 (1986).

     Accordingly, we reverse the conviction and dismiss the

indictment.



                               - 8 -
        Reversed and dismissed.




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