                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Petty, Beales and Chafin
UNPUBLISHED


              Argued at Richmond, Virginia


              TIMOTHY DAKOTA BOND
                                                                              MEMORANDUM OPINION* BY
              v.      Record No. 0505-13-2                                    JUDGE RANDOLPH A. BEALES
                                                                                  JANUARY 14, 2014
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                                               W. Allan Sharrett, Judge

                                Daniel P. Leavitt (Daniel P. Leavitt, PLLC, on brief), for appellant.

                                Leah A. Darron, Senior Assistant Attorney General (Kenneth T.
                                Cuccinelli, II, Attorney General, on brief) for appellee.


                      The trial court found Timothy Dakota Bond (appellant) guilty of credit card fraud, in

              violation of Code § 18.2-195, and sentenced appellant to ten years of imprisonment (with nine years

              suspended).1 On appeal, appellant argues that the evidence was insufficient to support the credit

              card fraud conviction because “there was no direct evidence that the card was ever actually used, let

              alone that [appellant] used the card.” Appellant also contends that the trial court erred by shifting

              the burden of persuasion to appellant to prove he did not use the debit card. Finally, appellant

              argues (and the Commonwealth agrees) that the trial court erred when it sentenced him to ten years

              for the credit card fraud conviction since credit card fraud is punished as a Class 6 felony, which

              carries a maximum sentence of five years. For the following reasons, we affirm appellant’s




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                      1
                     Appellant was also convicted of credit card theft, in violation of Code § 18.2-192.
              However, appellant does not challenge this conviction on appeal.
conviction for credit card fraud. However, we vacate the sentence that was imposed for the credit

card fraud conviction and remand the matter solely for resentencing on that conviction.

                                            I. BACKGROUND

        Applying the established standard of review on appeal, we consider the evidence at trial “‘in

the light most favorable to the Commonwealth, as we must since it was the prevailing party’” in the

trial court. Beasley v. Commonwealth, 60 Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting

Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004)). At the time of the events

giving rise to this appeal, appellant lived with his girlfriend (Jackie) and Jackie’s parents. At trial,

Jackie’s father (the victim) testified that sometime between July 2, 2012 and July 18, 2012, his wife

asked him if he had been using their joint debit card. The victim had not been using the debit card.

The victim attempted to access the account online, but could not do so since the password had been

changed. Therefore, the victim went to the bank, asked the bank to reset the password, and

discovered that the account was approximately $700 to $800 overdrawn.

        After discovering that the account was overdrawn, the victim and his wife realized the debit

card was missing. They searched for the debit card, but could not find it. The following day, the

victim and his wife noticed that the deficit in their account had increased.2 Appellant had twice

denied taking the debit card, but ultimately confessed that he had, in fact, taken the card. The victim

testified that, on the Friday of the week that the card had gone missing, appellant “looked at me and

said, Jackie had nothing to do with it . . . I took the card, it’s under the bed.”3 Right after appellant

made this admission, the victim looked under the bed and found the card. According to the victim,




        2
            The victim testified that “well over $1,000” was taken from the account.
        3
        The victim testified that he assumed appellant meant that he actually used the card when
he admitted to taking the card.

                                                   -2-
the card had not been under the bed the previous day. Neither the victim nor the victim’s wife had

given appellant permission to use the card.

        The trial court denied appellant’s motion to strike the Commonwealth’s evidence, reasoning,

in part, as follows:

                [I]t’s no leap in logic, that if the card’s gone . . . $1,000 is gone, that
                the card has been used to withdraw the money from the account. . . .
                [The victim] said, you know, I just assumed that he meant that she
                didn’t have anything to do with taking it or of using it. I assume that,
                too. That’s a perfectly fair deduction or inference from the statement
                that the defendant made. Had there been no money missing from the
                account, had there been no evidence of money missing, it might be a
                different issue. But you’ve got that.

        After the trial court’s ruling on appellant’s motion to strike, appellant’s counsel asserted that

there was no proof of actual use of the debit card by appellant. The trial court asked appellant’s

counsel, “[w]hy else do you take a credit card, if you’re not going to use it . . . [a]nd that there’s

money missing from the account . . . how else does it get out if he doesn’t use the card when he

takes it?” Appellant’s counsel responded, “Your Honor, essentially what you’re saying is that he

has to prove he’s innocent.” In response to that statement, the trial court said, once again, that it was

drawing a reasonable inference, and analogized the situation to the permissive inference that a

person in possession of recently stolen goods is the thief.

                                              II. ANALYSIS

                                    A. Sufficiency of the Evidence

        Appellant’s first assignment of error challenges the sufficiency of the evidence to support

his credit card fraud conviction. When considering the sufficiency of the evidence on appeal, “a

reviewing court does not ‘ask itself whether it believes that the evidence at the trial established guilt

beyond a reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384,

387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in

the light most favorable to the Commonwealth, as we must since it was the prevailing party in the
                                                   -3-
trial court,” Riner, 268 Va. at 330, 601 S.E.2d at 574, “[w]e must instead ask whether ‘any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”

Crowder, 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth, 41 Va. App.

250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). See also Maxwell v. Commonwealth, 275 Va.

437, 442, 657 S.E.2d 499, 502 (2008). “This familiar standard gives full play to the responsibility

of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S. at 319.

        Code § 18.2-195(1)(a) provides that:

                A person is guilty of credit card fraud when, with intent to defraud
                any person, he: 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 § 18.2-192 or a credit card or
                credit card number which he knows is expired or revoked.4

(Emphasis added).

        Viewing the evidence in the light most favorable to the Commonwealth (as we must since it

was the prevailing party at trial), a rational trier of fact could find that appellant actually used the

debit card. In a circumstantial evidence case, such as this one, the “combined force of many

concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind

irresistibly to a conclusion.” Dowden v. Commonwealth, 260 Va. 459, 470, 536 S.E.2d 437, 443

(2000). Here, the combined force of several circumstances in the record suggests that a finder of

fact reasonably could have found appellant guilty of credit card fraud.



        4
         The card at issue in this case was a debit card, rather than a credit card. However, debit
cards are included within the ambit of Code § 18.2-195. See Code § 18.2-191 (defining “credit
card,” which, “[f]or the purpose of this article . . . shall also include a similar device, whether
knows as a debit card, or any other name, issued with or without fee by an issuer for the use of
the cardholder in obtaining money, goods, services or anything else of value by charging the
account of the cardholder in obtaining money, goods, services, or anything else of value by
charging the account of the cardholder with a bank or any other person even though no credit is
thereby extended” (emphasis added)).
                                                 -4-
        First, appellant twice denied taking the debit card. See Covil v. Commonwealth, 268 Va.

692, 696, 604 S.E.2d 79, 82 (2004) (noting that “[a] false or evasive account is a circumstance,

similar to flight from a crime scene, that a fact-finder may properly consider as evidence of guilty

knowledge”). Second, after the two false denials, appellant finally admitted knowing what had

happened to the missing debit card, stating, “Jackie had nothing to do with it . . . I took the card, it’s

under the bed.” Third, around the time that the victim noticed the debit card was missing, the

account balance was decreasing. Fourth, the password to the online account had been changed

around the time that the card went missing and the balance began decreasing. Finally, the victim

found the card in the spot where appellant said he could find the card – in a location where the

victim testified that the card had not been the previous day.

        By appellant’s own admission, Jackie, the only other person in the household who did not

have authority to use the debit card, “had nothing to do with it.” Given the totality of the

circumstances in the record, a rational trier of fact could infer from the statement “Jackie had

nothing to do with it” that Jackie neither took nor used the debit card. Thus, appellant’s own words

and confessed actions eliminate the possibility that anyone in the household other than appellant

could have used the debit card in a fraudulent manner.

        On brief and at oral argument, appellant relied on Thompson v. Commonwealth, Record

No. 0018-10-4, 2010 Va. App. LEXIS 392, *6-7 (Va. Ct. App. Oct. 5, 2010), an unpublished

opinion, where this Court found that the circumstantial evidence was insufficient to sustain the

defendant’s conviction for felony credit card fraud. “Although not binding precedent, unpublished

opinions can be cited and considered for their persuasive value.” Otey v. Commonwealth, 61

Va. App. 346, 350, 735 S.E.2d 255, 257 (2012) (citing Rule 5A:1(f)). However, the decision in

Thompson is not persuasive on our analysis here, especially given that the circumstances in

Thompson were substantially different than the circumstances here.

                                                   -5-
        In Thompson, fifteen credit cards and a cell phone were stolen from the victim’s home.

Thompson, 2010 Va. App. LEXIS 392, at *3. On the day that the fifteen credit cards went missing,

one of the fifteen credit cards had been used to make an unauthorized purchase at a Wal-Mart store

and at a Finish Line shoe store. Id. The defendant’s girlfriend testified that the defendant handed

her a credit card and that she used that card to make a $154.60 purchase in Wal-Mart. Id. That

credit card belonged to the victim. Id. A clerk from Finish Line testified that on the day in

question, the person who used the victim’s credit card to make a $131.24 purchase was an African-

American male, but the clerk could not provide any additional information about the credit card

user. Id. at *3-4. On appeal, this Court noted that the evidence of the defendant’s culpability was

“somewhat tenuous,” even in the view of the trial judge who had nevertheless found that the

evidence was sufficient to find the defendant guilty of felony credit card fraud arising from the total

of the $154.60 purchase at the Wal-Mart store and the $131.24 purchase at the Finish Line store. Id.

at *4. This Court concluded that “the record is devoid of any details regarding the proximity in time

between the two transactions . . . or the distance between the two stores” and that “the evidence that

appellant was the African-American male who stole shoes from the Finish Line, at best, was

speculative.” Consequently, this Court reversed the defendant’s conviction for felony credit card

fraud, and remanded to the trial court with instructions to sentence appellant for misdemeanor credit

card fraud since the theft from the Finish Line store could not be counted toward the $200 threshold

for felony credit card fraud. Id. at *6-7.

        Here, however, unlike in Thompson, the world of potential card users is quite small. In

Thompson, any person fitting the description of “an African-American male” could have used the

card in the Finish Line store. By contrast, in this case, the world of potential users is limited to four

people. Neither the victim nor his wife was responsible for the approximately $1,000 that went

missing from the account, about which they were extremely worried. Appellant admitted that

                                                  -6-
Jackie “had nothing to do with it,” and the trial court was entitled to infer that “it” referred to both

the theft of the card and the use of the card. Thus, viewing the evidence in the light most favorable

to the Commonwealth (as we must since the Commonwealth prevailed below), a rational trier of

fact could determine that the evidence was sufficient to convict appellant of credit card fraud.

                                      B. Alleged Burden-Shifting

        In his second assignment of error, appellant argues that the trial court impermissibly shifted

the burden of persuasion to appellant and required appellant to show that he did not actually use the

card that he took. “A permissive inference does not relieve the [Commonwealth] of its burden of

persuasion because it still requires the [Commonwealth] to convince the [trier of fact] that the

suggested conclusion should be inferred based on the predicate facts proved.” Dobson v.

Commonwealth, 260 Va. 71, 75, 531 S.E.2d 569, 572 (2000) (quoting Francis v. Franklin, 471 U.S.

307, 314 (1985)).

        The record is simply devoid of any indication that the trial court impermissibly shifted the

burden to appellant to prove that he did not take the debit card. Indeed, the trial court simply made

an inference that appellant used the card after taking it based on the following facts: (1) appellant

denied taking the debit card, (2) appellant later admitted to taking the debit card, (3) appellant said

that “Jackie had nothing to do with it,” (4) the password to the account had been changed, and

(5) the account was overdrawn around the time the card went missing and the password was

changed. The decisions of the Supreme Court of Virginia plainly hold that the deference accorded

to the factfinder “applies not only to findings of fact, but also to any reasonable and justified

inferences the fact-finder may have drawn from the facts proved.” Sullivan v. Commonwealth, 280

Va. 672, 676, 701 S.E.2d 61, 63-64 (2010). Drawing reasonable inferences from the evidence, the

trial court rejected appellant’s hypothesis of innocence, as it was entitled to do. See Clanton v.

Commonwealth, 53 Va. App. 561, 572-73, 673 S.E.2d 904, 910 (2009) (en banc). A trial court

                                                   -7-
does not shift the burden of persuasion to the defendant simply because it rejects the defendant’s

hypothesis of innocence.

                                       C. Appellant’s Sentence

        We agree with both parties that appellant received an improper sentence for his credit card

fraud conviction and that, therefore, appellant’s sentence for credit card fraud should be vacated and

remanded for resentencing.

        Appellant received a ten-year sentence for his credit card fraud conviction. Credit card

fraud is punishable in this case as a Class 6 felony, since the value of money fraudulently obtained

exceeds the $200 threshold.5 Code § 18.2-10(f) provides that the punishment for a Class 6 felony

conviction is “a term of imprisonment of not less than one year nor more than five years, or in the

discretion of the jury or the court trying the case without a jury, confinement in jail for not more

than 12 months and a fine of not more than $2,500, either or both.” Thus, we must vacate the

ten-year sentence imposed for appellant’s credit card fraud conviction because that sentence

exceeded the maximum sentence authorized by law. Accordingly, resentencing by the trial court for

the credit card fraud conviction is required. See Code §§ 19.2-257 and 19.2-295.1.




        5
            Code § 18.2-195(3) provides that:

                  Conviction of credit card fraud is punishable as a Class 1
                  misdemeanor if the value of all money, goods, services and other
                  things of value furnished in violation of this section, or if the
                  difference between the value of all money, goods, services and
                  anything else of value actually furnished and the value represented
                  to the issuer to have been furnished in violation of this section,
                  does not exceed $200 in any six-month period; conviction of credit
                  card fraud is punishable as a Class 6 felony if such value exceeds
                  $200 in any six-month period.

(Emphasis added).

                                                  -8-
                                            III. CONCLUSION

        The record establishes that appellant denied taking the debit card, later admitted to taking

the debit card, told the victim exactly where the once-missing debit card was located, and stated to

the victim that “Jackie had nothing to do with it.” In addition, the record establishes that the

password on the account associated with the debit card was changed around the time the card went

missing and that the account had been overdrawn around the time the card went missing. Viewing

the evidence in the light most favorable to the Commonwealth, as we must since it was the

prevailing party below, a rational trier of fact could find appellant guilty of credit card fraud.

Because the sentence appellant received for his credit card fraud conviction exceeded the statutory

maximum for a sentence allowed for that offense, however, we vacate that sentence and remand the

matter to the trial court solely for resentencing on the credit card fraud conviction.

                                                                                         Affirmed in part,
                                                                                         reversed in part,
                                                                                          and remanded.




                                                   -9-
