                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Senior Judge Cole
Argued at Richmond, Virginia


DARRELL DEON HARRISON
                                                 OPINION BY
v.   Record No. 1098-98-2                JUDGE JAMES W. BENTON, JR.
                                                MAY 30, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                     L. A. Harris, Jr., Judge

          Cullen D. Seltzer (Rawlings & Wood, on
          brief), for appellant.

          Michael T. Judge, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.



     The trial judge convicted Darrell Deon Harrison of three

counts of forgery, three counts of uttering, grand larceny,

credit card theft, and credit card fraud.    Harrison contends the

trial judge erred in finding the evidence sufficient to prove

that he took, obtained, or withheld a credit card number, in

violation of Code § 18.2-192, and that he used a credit card

number with intent to defraud, in violation of Code § 18.2-195.

For the reasons that follow, we affirm the convictions.

                               I.

     On appeal, we view the evidence in the light most favorable

to the Commonwealth and accord to that evidence all reasonable

inferences fairly deducible therefrom.    Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 536 (1975).    The

evidence at trial concerning the credit card offenses proved that

Delia Pitchford, an employee of the Sunglass Hut, sold Harrison a

pair of sunglasses for $274.99.   Harrison told Pitchford that he

was out of checks, showed her his empty checkbook, and asked if

he could use his credit card number.   Pitchford testified that

Harrison paid for the sunglasses using a Visa credit card number,

which he had "written down in the front of [his] checkbook."

Pitchford further testified that Harrison explained "he did not

have his card with him [and] his girlfriend had the card."

Harrison gave Pitchford his own name and showed her his

identification.   He then used the credit card number to make the

purchase and filled out the warranty card with his own name.
     The credit card number Harrison used to purchase the

sunglasses belonged to Harold Lloyd Kretzer, Jr.   Kretzer

testified that he owned a Visa card with the same number and that

someone made charges to the account without his permission.    He

and his wife always had the cards in their possession.    He

further testified that he did not give anyone permission to use

his credit card number for making a purchase at the Sunglass Hut.

     Harrison testified that he received the credit card number

from "a female friend" named Linda Brown, who told him that it

was hers.   He testified that she gave him the credit card number

because "she wanted to give [him] a gift" as a token of

"friendship . . . [and] romance."   He did not know her address.

Harrison never had possession of Kretzer's credit card, only the

credit card number.


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     The trial judge convicted Harrison of various offenses,

including credit card theft and credit card fraud.    This appeal

followed.

                                II.

     Code § 18.2-192 provides, in pertinent part, the following:

                (1) 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.

     Harrison contends the evidence was insufficient to convict

him because the Commonwealth "failed to prove that the card

number was taken or obtained from the person, possession,

custody or control of . . . Kretzer or that Harrison received

the card number with the knowledge that it had been so taken or

obtained."   Harrison argues that, because he did not obtain

physical control or custody of the credit card to the exclusion

of the cardholder and did not receive the number directly from

the cardholder, he could not be convicted of credit card number

theft.

     The statute, however, does not require the Commonwealth to

prove that Harrison received the credit card number directly

from Kretzer.   The statute prohibits the receipt of the number

"from the person, possession, custody or control of another

without the cardholder's consent."     Code § 18.2-192.   Although


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we must strictly construe penal statutes against the

Commonwealth, we are required to "construe a statute to promote

the end for which it was enacted, if such an interpretation can

reasonably be made from the language used[, and we must] read

[statutes] to give reasonable effect to the words used 'and to

promote the ability of the enactment to remedy the mischief at

which it is directed.'"   Mayhew v. Commonwealth, 20 Va. App.

484, 489, 458 S.E.2d 305, 307 (1995) (citations omitted).

     Clearly, the statute criminalizes the improper acquisition

of both credit cards and credit card numbers.   The statute does

not exclude individuals who obtain credit card numbers from

discarded receipts, via the telephone or the Internet, or any of

the myriad ways in which credit card numbers can be fraudulently

acquired without possession of the credit card or without the

cardholder's consent.

     The evidence proved that Kretzer did not consent to this

use of his credit card number.    Moreover, Harrison testified at

trial that he received the number from a woman under peculiar

circumstances.   "The credibility of the witnesses and the weight

accorded the evidence are matters solely for the fact finder who

has the opportunity to see and hear that evidence as it is

presented."   Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455

S.E.2d 730, 732 (1995).   Harrison testified that Linda Brown

gave him the number, but he did not know where Brown lived or

even whether Linda Brown was her real name.   Harrison told

                                 - 4 -
Pitchford, however, that the credit card number belonged to him.

This evidence permits the inference that Harrison knew the

credit card number did not belong to Linda Brown.    Thus, we

cannot say the trial judge erred as a matter of law in rejecting

Harrison's testimony that he believed the card number belonged

to Brown and that Brown was "buying [him] a gift."      See

Robertson v. Commonwealth, 12 Va. App. 854, 858, 406 S.E.2d 417,

419 (1991) (holding that the fact finder's determination that a

witness was credible can only be disturbed on appeal if that

"testimony was 'inherently incredible, or so contrary to human

experience as to render it unworthy of belief'").

     Harrison acquired Kretzer's credit card number without his

consent; therefore, the taking element of Code § 18.2-192 was

proved because Harrison interfered with Kretzer's right to

determine who shall have the right to use his credit card

number.   Cf. Clay v. Commonwealth, 30 Va. App. 254, 259, 516

S.E.2d 684, 686 (1999) (en banc) (noting that in the context of

robbery, a taking from the person does not require actual

contact with the person, but can be simply taking the property

from that person's personal protection and presence).

                               III.

     In pertinent part, Code § 18.2-195 provides as follows:

                (1) A person is guilty of credit card
                fraud when, with intent to defraud
                any person, he:



                               - 5 -
                (a) Uses 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 [Code] § 18.2-192 or a
                credit card or credit card number which
                he knows is expired or revoked;

                (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.

     The evidence proved that Harrison used the credit card

number to purchase sunglasses after having obtained the number

in violation of Code § 18.2-192.   To prove fraud, however, the

Commonwealth also had to prove that Harrison had the specific

intent to commit a crime.   See Campbell v. Commonwealth, 14 Va.

App. 988, 990, 421 S.E.2d 652, 654 (1992) (defining intent to

defraud as "act[ing] with an evil intent, or with the specific

intent to deceive or trick").   "'Intent is a state of mind that

may be proved by an accused's acts or by his statements and that

may be shown by circumstantial evidence.'"   Wilson v.

Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 673-74 (1995)

(citation omitted).

     Harrison told Pitchford that the credit card number was his

and then testified at trial that Linda Brown gave him the

number.   Harrison would have no reason to tell Pitchford the

credit card number was his if he had not known the status of the

number.   Moreover, as the trial judge noted, Harrison gave


                                - 6 -
Pitchford a false address when he filled out the warranty card.

This evidence was sufficient for the trial judge to find beyond

a reasonable doubt that Harrison had the requisite intent to

defraud.

     For the foregoing reasons, we affirm the convictions.

                                             Affirmed.




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