                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Humphreys, Beales and AtLee
              Argued at Richmond, Virginia
UNPUBLISHED




              ROBERTO BRITO ARRATE
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 0518-18-2                                    JUDGE RICHARD Y. ATLEE, JR.
                                                                                 FEBRUARY 12, 2019
              COMMONWEALTH OF VIRGINIA


                                   FROM THE CIRCUIT COURT OF CAROLINE COUNTY
                                                Sarah L. Deneke, Judge

                               Melissa E. Danjczek for appellant.

                               Rachel L. Yates, Assistant Attorney General (Mark. R. Herring,
                               Attorney General, on brief), for appellee.


                     Following a bench trial, the Circuit Court of Caroline County (“trial court”) found

              appellant Roberto Brito Arrate guilty of one count of credit card1 forgery, in violation of Code

              § 18.2-193. On appeal, Brito Arrate assigns numerous errors.2 Because only one assigned error,



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                        We recognize that Brito Arrate argues that the card(s) at issue here do not fall within the
              definition of “credit card” under Code § 18.2-191. While we occasionally refer to the cards as
              “credit cards” in this memorandum opinion for clarity, we make no ruling as to whether they, in
              fact, qualify as such under that definition.
                     2
                         Brito Arrate argues the trial court erred as follows:

                           1) there was no evidence whatever [sic] that Brito-Arrate falsely made
                           or falsely embossed a purported credit card or uttered such a falsely
                           made or falsely embossed credit card, no evidence that he signed a
                           credit card, and no evidence that he forged a sales draft or cash
                           advance/withdrawal draft or attempted to employ as true a forged draft
                           knowing it to be forged;
regarding a variance between the crimes charged in the indictment and the evidence presented at

trial, governs our resolution of this case, we do not address the additional assigned errors. See

Luginbyhl v. Commonwealth, 48 Va. App. 58, 64 (2006) (en banc) (“[A]n appellate court

decides cases ‘on the best and narrowest ground available.’” (quoting Air Courier Conference v.

Am. Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring))). Because we

find that the indictment failed to allege the conduct for which the trial court convicted

Brito Arrate, we reverse.

                                          I. BACKGROUND

       At a Love’s Travel Stop in Caroline County, Brito Arrate presented a “Vanilla

Mastercard,” a prepaid card that can be used like a gift card but is not limited to one store, as

payment for his purchase. The manager, Tiffany Sparks, swiped the card and entered the last

four digits on the card in response to the card payment system’s prompt. The system flagged the

card as fraudulent, indicating that the account associated with the card’s magnetic strip did not

match the numbers listed on the front of the card. Sparks informed Brito Arrate that the card had




           2) the gift cards in question did not meet the definition of a “credit
           card” for purposes of Va. Code § 18.2-193 because the gift cards
           didn’t operate by means of “charging the account of the cardholder
           with a bank or any other person”;

           3) Brito-Arrate wasn’t the “cardholder” of a credit card for purposes
           of Va. Code § 18.2-193 because he wasn’t “the person named on the
           face of a credit card to whom or for whose benefit the credit card is
           issued by an issuer”; and

           4) the indictment alleged only that Brito-Arrate had falsely made or
           falsely embossed a purported credit card, and did not allege that
           Brito-Arrate had uttered a falsely made or falsely embossed credit card
           or committed any of the offenses described in subsections 2 and 3 of
           the statute.

(Formatting edited for clarity.) We address only the final assignment of error as it controls our
ruling in this case.
                                              -2-
been designated fraudulent. Brito Arrate asked for the card back but Sparks refused the request.

She informed him that she would call the police and could not return the card until they arrived.

After hearing that Sparks would call the police, Brito Arrate reached across the counter in an

unsuccessful attempt to grab the card. Sparks stepped back and picked up the store phone.

Brito Arrate then fled.

       Brito Arrate ran outside to a truck parked in the store’s lot, stopped there for a moment,

and then ran to a nearby fence. Sparks called her assistant manager, and they pursued

Brito Arrate. They observed Brito Arrate throw something resembling credit or debit cards over

the fence before returning to the truck and driving away. Sparks and the assistant manager were

unable to catch him. They searched the spot by the fence and retrieved ten cards. Some were

“Vanilla” Mastercards, others “Green Dot” Visas (another brand of pre-paid payment card), and

finally, there was one Walmart gift card. Sparks, the assistant manager, and a deputy who

arrived on the scene ran the cards through the card payment system. Of the ten, seven came up

as fraudulent, and one (the Walmart gift card) could not be processed through that system.

       A grand jury returned an indictment3 charging that Brito Arrate “did unlawfully and

feloniously commit credit card forgery with intent to defraud a purported issuer, a person or

organization providing money, goods, services or anything else of value, or any other person, he

falsely makes or falsely embosses a purported credit card, in violation of [Code] § 18.2-193.”

The indictment’s language follows that of Code § 18.2-193(1)(a) regarding “mak[ing]” or

“emboss[ing],” but failed to include the remainder of that subsection, which criminalizes




       3
         The grand jury returned indictments for five counts of credit card forgery, but the trial
court granted Brito Arrate’s motion to strike four of those counts.

                                                -3-
“utter[ing] such a [forged] credit card.” The indictment also did not include language from

subsections (b) or (c) of that statute.4

        At trial, Brito Arrate’s counsel moved to strike, noting that, inter alia, the

Commonwealth failed to prove that he committed the crime charged in the indictment — falsely

making or embossing the card. The trial court overruled the motion:

                The [C]ode section 18.2-193 is what is specified in the indictment
                as being the charging section. There’s no reference to a specific
                subsection. And while I agree with [defense counsel] that the
                language of the indictment deals with making or embossing a
                credit card, the [C]ode section, itself, deals with making,
                embossing or uttering such a card, and I find that that covers the
                allegations in this particular case and the motion to strike is
                overruled.

The trial court ultimately convicted Brito Arrate and sentenced him to two years in prison, with

one year, eleven months, and twenty days suspended for a period of three years. This appeal

followed.

                                            II. ANALYSIS

        Brito Arrate argues that the indictment did not encompass the conduct for which he was

convicted. Specifically, the indictment upon which the trial court convicted Brito Arrate charged



        4
         The other subsections of Code § 18.2-193(1) state that a person is guilty of credit card
forgery if

                (b) He, not being the cardholder or a person authorized by him,
                with intent to defraud the issuer, or a person or organization
                providing money, goods, services or anything else of value, or any
                other person, signs a credit card; or

                (c) He, not being the cardholder or a person authorized by him,
                with intent to defraud the issuer, or a person or organization
                providing money, goods, services or anything else of value, or any
                other person, forges a sales draft or cash advance/withdrawal draft,
                or uses a credit card number of a card of which he is not the
                cardholder, or utters, or attempts to employ as true, such forged
                draft knowing it to be forged.
                                                 -4-
him with credit card forgery by “falsely mak[ing] or falsely emboss[ing] a purported credit card,

in violation of [Code] § 18.2-193.” The indictment’s language includes only a portion of

subsection (1)(a) of Code § 18.2-193. Crucially, it omits the language from that subsection most

clearly applicable to Brito Arrate’s conduct: “or utters such a credit card.”

       The trial court, in finding Brito Arrate guilty, noted that “[i]t is a fraudulent card. It was

uttered by this individual in an attempt to defraud the store . . . .” (Emphasis added.)

Furthermore, when overruling Brito Arrate’s motion to strike, the trial court relied on the

indictment’s general citation to Code § 18.2-193, without including a specific subsection, in

finding that it included not only making and embossing, but also uttering. Thus, it is clear from

the trial court’s statements that it found that Brito Arrate was guilty of uttering the forged card

(although it did not expressly disclaim that the evidence proved making or embossing).

       As a preliminary matter, we must consider the definitions of “uttering” and “making” a

credit card.5 Uttering is “an assertion by word or action that a[n instrument] known to be forged

is good and valid.” Goodwin v. Commonwealth, 64 Va. App. 322, 327 (2015) (quoting Bateman

v. Commonwealth, 205 Va. 595, 600 (1964)).

       Yet the indictment omitted the phrase “or utters such a credit card,” solely charging

Brito Arrate with making and embossing. Code § 18.2-193(2) defines making a credit card:

               A person falsely makes a credit card when he makes or draws, in
               whole or in part, a device or instrument which purports to be the
               credit card of a named issuer but which is not such a credit card


       5
         The Commonwealth does not argue that the evidence was sufficient to prove
Brito Arrate embossed the card, and thus appears to concede that it was not. Code § 18.2-193(3)
defines embossing a credit card:

               A person falsely embosses a credit card when, without the
               authorization of the named issuer, he completes a credit card by
               adding any of the matter, other than the signature of the
               cardholder, which an issuer requires to appear on the credit card
               before it can be used by a cardholder.
                                               -5-
                because the issuer did not authorize the making or drawing, or
                alters a credit card which was validly issued.

        The Commonwealth responds to the merits of Brito Arrate’s assigned error with two

arguments. First, it argues that the evidence was sufficient to show that Brito Arrate made the

card here. Second, it argues that even if the evidence only proved that Brito Arrate uttered the

fraudulent card, the failure to include that language in the indictment nonetheless would not

amount to a fatal variance.

                   A. The Evidence Failed to Show Brito Arrate Made the Card

        First, the Commonwealth claims that it proved Brito Arrate made the forged card. It

argues that, because there was a discrepancy between the card number and the magnetic strip, the

card must have been altered. Yet aside from Brito Arrate’s possession of the card and

knowledge that it was fraudulent, there is no evidence indicating that he was responsible for that

alteration.

        The Commonwealth relies on Fitzgerald v. Commonwealth, 227 Va. 171 (1984), for the

proposition that possession of a forged instrument “is prima facie evidence that he either forged

the instrument or procured it to be forged.” Id. at 174 (emphasis omitted) (quoting Laird v.

State, 406 So. 2d 35, 36 (Miss. 1981)). The Court explained in that case that “[s]uch a prima

facie showing of guilt does not rise to the level of a conclusive presumption, and it may be

rebutted, but it will warrant submission of the issue of guilt of forgery to the jury, and will

support a verdict of guilty if the jury so finds.” Id.

        In Fitzgerald, the defendant was convicted for forgery of paper checks using a typewriter

and a pen. The Commonwealth argues that this presumption should extend to credit card

forgery. We disagree.

        Forging a check and a credit card are not acts requiring equivalent skill or effort. Forging

a credit card, at least as the card at issue here was altered, requires specialized equipment and
                                                 -6-
some technical skill to rewrite the magnetic strip on the back of the card. By contrast, forging a

paper check requires nothing more than a pen. Accordingly, the inference presented in

Fitzgerald is logical as applied to a check, because a fact-finder can reasonably infer that an

average person would understand how to write fraudulent information on a piece of paper. The

same cannot be said for credit cards.6

       The Commonwealth presented no evidence that Brito Arrate possessed the tools or skill

to forge a credit card, and relies solely upon his possession of the fraudulent card as evidence

that he made it. Assuming without deciding that the presumption set forth in Fitzgerald does not

unequivocally apply to credit card forgery, the evidence presented at trial was inadequate to

show that Brito Arrate had “made” (or “embossed”) any of the cards. The trial court found as

much, expressly stating that Brito Arrate had uttered the card. Brito Arrate’s mere possession of

the card, and attempt to use it, alone is inadequate to show that he made or embossed the forged

card as charged in the indictment.

                                 B. There Was a Fatal Variance

       While the prosecution may have shown that Brito Arrate uttered the fraudulent card when

he presented it to the convenience store cashier, the indictment failed to include that language.

The Commonwealth nevertheless argues that the trial court correctly determined there was no

fatal variance between the indictment and the conduct for which Brito Arrate was convicted. We

disagree.

       “The point of an indictment ‘is to give an accused notice of the nature and character of

the accusations against him in order that he can adequately prepare to defend against his


       6
         Moreover, the defendant in Fitzgerald included his name on the false checks as payee
and endorsed each with his signature, permitting a reasonable fact-finder to conclude that he was
responsible for the forgery, as he was the person who stood to benefit from it. Here, any person
in possession of the fraudulent card could have, assuming the card received a lower level of
scrutiny than Brito Arrate faced, redeemed it.
                                                -7-
accuser.’” Purvy v. Commonwealth, 59 Va. App. 260, 265-66 (2011) (quoting King v.

Commonwealth, 40 Va. App. 193, 198 (2003)). “In short, the ‘offense as charged must be

proved.’” Id. at 267 (quoting Mitchell v. Commonwealth, 141 Va. 541, 560 (1925)). “[N]otice

to the accused of the offense charged against him is the rockbed requirement which insures the

accused a fair and impartial trial on the merits.” Id. (quoting Hairston v. Commonwealth, 2

Va. App. 211, 214 (1986)). Thus, a variance between the conduct charged in the indictment and

proven at trial is fatal “when the proof is different from and irrelevant to the crime defined in the

indictment and is, therefore, insufficient to prove the commission of the crime charged.” Id.

(quoting Stokes v. Commonwealth, 49 Va. App. 401, 406 (2007)).

       In Purvy, this Court found a fatal variance where the indictments charged the defendant

with failing to register or reregister as a violent sex offender in violation of Code § 18.2-472.1,

while he was convicted for knowingly providing false information on his reregistration forms.

Id. As in this case, the same statute contained both of the crimes for which Purvy was charged

and convicted. This Court acknowledged that “an indictment citing a criminal statute

incorporates its contents by reference.” Id. at 261; see also Code § 19.2-220; Rule 3A:6(a). Yet

it cautioned that “when the descriptive text of an indictment narrows the factual allegation, it

limits the scope of the incorporation.” Id. Because the indictment included additional language

that narrowed the scope of the crime charged from the broader statutory reference, and the nature

of those crimes was distinct, the Court held that a fatal variance existed. Id. at 269.

       The Supreme Court has previously held that possession of stolen credit cards is distinct

from credit card theft. In Wilder v. Commonwealth, 217 Va. 145 (1976), the Court held that an

indictment charging that the defendant “did feloniously and unlawfully have in his possession

two or more stolen credit cards” under Code § 18.1-125.3 (now Code § 18.2-192) did not

encompass “taking, obtaining, withholding or receiving” under subsection (1)(a) because “mere

                                                -8-
possession of a stolen credit card is not sufficient to state the offense of credit card theft.” Id. at

147 (emphasis added). Although a defendant may acquire possession of a card through “taking,

obtaining, withholding or receiving,” the subsection deals with the “[m]anner in which

possession is acquired and not with possession alone.” Id. Wilder differs from this case because

there, mere possession of a stolen card was not, in fact, a criminal act, while the conduct charged

in the indictment here is. As such, the indictment in Wilder was unable to be rescued by

amendment. Id. at 148; see also Scott v. Commonwealth, 292 Va. 380, 384 (2016). Here,

however, there was no attempt to amend the indictment, so that distinction is not at issue. Wilder

is nonetheless instructive because it highlights that possession and theft of a credit card, while

related, are distinct, and the former does not amount to the latter. Similarly, uttering and making

a forged card — particularly when the only evidence of the latter crime is the defendant’s

possession of the card — are distinct crimes requiring different acts and proof thereof.

        Here, the inclusion of the additional language narrowed the scope of the indictment so

that it no longer incorporated the remainder of Code § 18.2-193 by reference. The crimes of

making and uttering a credit card are distinct. “False making involves creating a new thing

which purports to be a credit card, where the creation is not authorized by the purported issuer;

false making also occurs when one alters a validly issued, existing card.” 7 Ronald J. Bacigal,

Virginia Practice: Criminal Offenses and Defenses 147 (2018-2019 ed.). By contrast, “uttering

is presentation of a forged card, with intent to defraud, misrepresenting it as genuine in an

attempt to obtain thereby some benefit.” Id. One could make a fraudulent credit card and never

utter it. Or, as we see here, the evidence could show that one uttered a forged card without

proving that that individual made it. Because these crimes, and the elements that comprise them,

are distinct, the evidence offered at trial was “different from and irrelevant to the crime[s]




                                                  -9-
defined in the indictment,” and thus failed to prove the crimes charged. Purvy, 59 Va. App. at

267.

       As the Court noted in Purvy, the Commonwealth could “easily [have] avoided [this

outcome] by broadening the descriptive text of an indictment or by making disjunctive factual

allegations.” Id. Had the indictment been so broad as to encompass the entirety of Code

§ 18.2-193, Brito Arrate could have sought a bill of particulars in order to determine the specific

conduct the Commonwealth intended to prove. By including the narrowing language of making

and embossing, and excluding any mention of “uttering,” the indictment failed to provide

adequate notice to Brito Arrate that the Commonwealth intended to show he uttered the forged

card. As such, we hold a fatal variance existed between the indictment and the conduct for

which the trial court convicted Brito Arrate.

                                         III. CONCLUSION

       We find the trial court erred in ruling that the Commonwealth proved Brito Arrate guilty

of the conduct charged in the indictment, as there was no evidence that Brito Arrate either made

or embossed the card, and the indictment failed to charge Brito Arrate with uttering.

Accordingly, we reverse Brito Arrate’s conviction.

                                                                                         Reversed.




                                                - 10 -
