                        COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judges Benton and
          Senior Judge Overton
Argued at Alexandria, Virginia


PRESTON FISHER
                                              MEMORANDUM OPINION * BY
v.      Record No. 2871-01-4         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                                 OCTOBER 22, 2002
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                        Paul F. Sheridan, Judge

             Janell M. Wolfe for appellant.

             Leah A. Darron, Assistant Attorney General
             (Jerry W. Kilgore, Attorney General, on
             brief), for appellee.


        Preston Fisher (appellant) was convicted in a jury trial of

credit card theft, in violation of Code § 18.2-192(1)(a).       The

sole issue raised on appeal is whether the evidence proved that

appellant intended to use, sell or transfer the victim's credit

card.    For the following reasons, we affirm appellant's

conviction.

                               I.   BACKGROUND

                  "When considering the sufficiency of
             the evidence on appeal of a criminal
             conviction, we must view all the evidence in
             the light most favorable to the Commonwealth
             and accord to the evidence all reasonable
             inferences fairly deducible therefrom.

     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
            The jury's verdict will not be disturbed
            unless plainly wrong or without evidence to
            support it."

Hucks v. Commonwealth, 33 Va. App. 168, 177, 531 S.E.2d 658, 662

(2000) (quoting Clark v. Commonwealth, 30 Va. App. 406, 409-10,

517 S.E.2d 260, 261 (1999)).

     So viewed, the evidence established that Rita Jenson, a

resident of Arlington County, routinely left her Exxon credit

card in the ashtray of her Jeep.   On December 11, 2000, at

approximately 7:30 p.m., a friend of Jenson's, Margaret

Bardsley, arrived at Jenson's home and saw Jenson's Jeep parked

in the driveway with someone inside.   As Bardsley approached

Jenson's house, a man exited the Jeep and walked past her toward

a wooded area.

     When Jenson answered the door, Bardsley asked her if she

had someone working on her car.    Jenson said no and called the

police and her neighbor, Rick Sansalone, who immediately drove

around the neighborhood to look for the person who had been in

Jenson's car.    Within two minutes and not far from Jenson's

home, Sansalone saw appellant, who met the description given by

Bardsley.   When Sansalone tried to talk to him, appellant

continued to walk away.   Sansalone returned to Jenson's street

and spoke with Officer Scott Larsen.   Larsen followed Sansalone

to appellant's location and attempted to stop him.   Appellant

ran from the officer until the officer blocked his path

approximately two hundred feet from the initial encounter.      As

                                - 2-
Larsen approached appellant and before he could ask him any

questions, appellant "stated to [Larsen] that [Larsen] should

search him, he didn't have anything on him.   He basically threw

his hands up in the air."

     Jenson testified that the car's glove compartment, center

console, ashtray and driver's side door were closed when she

last left her car.    Later, the door was open, the car had been

riffled and change and her Exxon credit card had been removed

from the ashtray.    Additionally, she testified she did not know

appellant and did not give him or anyone else permission to take

or use her Exxon credit card.   Appellant conceded that the

evidence was sufficient to establish that he was the individual

who took the items from the car.

     The jury found appellant guilty of credit card theft.

                II.    SUFFICIENCY OF THE EVIDENCE

     "This Court does not substitute its judgment for that of

the trier of fact."    Hunley v. Commonwealth, 30 Va. App. 556,

559, 518 S.E.2d 347, 349 (1999) (citing Cable v. Commonwealth,

243 Va. 236, 239, 415 S.E.2d 218, 220 (1992)).   "Intent may, and

most often must, be proven by circumstantial evidence and the

reasonable inferences to be drawn from proven facts are within

the province of the trier of fact."    Summerlin v. Commonwealth,

37 Va. App. 288, 297, 557 S.E.2d 731, 736 (2002) (citing Fleming

v. Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183

(1991)).

                                - 3-
             Specific intent may be shown by
             circumstances, including by a person's
             conduct or by his statements. The
             inferences to be drawn from proven facts, so
             long as they are reasonable, are within the
             province of the trier of fact. The mere
             possibility that the accused might have had
             another purpose than that found by the fact
             finder is insufficient to reverse a
             conviction on appeal.

Hancock v. Commonwealth, 12 Va. App. 774, 782-83, 407 S.E.2d

301, 306 (1991) (internal citations omitted).    "The Commonwealth

need only exclude reasonable hypotheses of innocence that flow

from the evidence, not those that spring from the imagination of

the defendant."     Hamilton v. Commonwealth, 16 Va. App. 751, 755,

433 S.E.2d 27, 29 (1993).

        Appellant contends that the evidence is insufficient to

prove he intended to use, sell or transfer Jenson's Exxon credit

card.    We disagree.

        Code § 18.2-192(1)(a) provides:

             A person is guilty of credit card or credit
             card number theft when . . . [h]e 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 . . . .

"The taking [of a credit card] must be with the intent to use,

sell, or transfer the card to [a] person other than the issuer




                                 - 4-
or the cardholder."     Darnell v. Commonwealth, 12 Va. App. 948,

954-55, 408 S.E.2d 540, 543-44 (1991).

             [The term "withhold" from the statute]
             must . . . import something more than mere
             retention, for mere retention could be
             consistent with innocent intent. The
             retention must be accompanied by an intent
             to deprive the owner of possession and to
             use the card, or to sell it, or to transfer
             it to a person other than the issuer or the
             cardholder.

Cheatham v. Commonwealth, 215 Va. 286, 290, 208 S.E.2d 760, 763

(1974).

        Appellant relies on Cheatham and Wilder v. Commonwealth,

217 Va. 145, 225 S.E.2d 411 (1976), for the proposition that the

"mere possession of a stolen credit card is not sufficient to

state the offense of credit card theft."     Wilder, 217 Va. at

147, 225 S.E.2d at 413.    While that is an accurate statement of

the law, it does not control the outcome of this case.     The

evidence in Cheatham showed only that appellant had in his

possession a stolen credit card "that he had found . . . in the

1600 block of Jacqueline Street in Richmond."     Cheatham, 215 Va.

at 287, 208 S.E.2d at 761.    There was no other evidence in that

case.    The police found the stolen credit card in Cheatham's

possession when they arrested him on a charge unrelated to the

original robbery of the credit card owner, and no evidence

identified him as involved in the robbery.    The Supreme Court

relied in its ruling on the fact that "Cheatham was not charged

with the . . . robbery, and the Commonwealth does not contend

                                 - 5-
that he participated in that crime.    Cheatham was charged with

the statutory offense of credit card theft for withholding [the]

credit card after it came into his possession."    Id. at 288, 208

S.E.2d at 762.    In this case, appellant conceded that the

evidence was sufficient to establish that he was the individual

who took the items from the car.

     Wilder is also inapposite to the facts of the instant case.

Wilder was an appeal "limited . . . to a consideration of

whether the original indictment was sufficient to charge the

accused with the commission of the crime [of credit card

theft]."   217 Va. at 146, 225 S.E.2d 412.   The indictment was

found to be invalid because the language used charged only

possession and failed to allege the requisite intent to use,

sell, or transfer the card.

     In the instant case, the evidence shows more than mere

unexplained possession or retention of another's credit card.

Appellant was identified as the person who took the items from

Jenson's car after ransacking the glove compartment, ashtray and

center console.   The jurors could reasonably infer that

appellant stole the Exxon credit card along with the money and

other items from Jenson's car with the intent to use, sell or

transfer it.   No innocent purpose is evident from this set of

facts.   The inferences to be drawn from his conduct were clearly

within the province of the jury.    See Hancock, 12 Va. App. at

782-83, 407 S.E.2d at 306.

                                - 6-
     For the foregoing reasons, we affirm appellant's conviction

of credit card theft.

                                                       Affirmed.




                              - 7-
Benton, J., dissenting.

     Mere proof that an accused possessed a credit card is

insufficient to establish a violation of Code § 18.2-192(1)(a).

See Wilder v. Commonwealth, 217 Va. 145, 147, 225 S.E.2d 411,

413 (1976).    To sustain a conviction, the evidence must prove

that the accused took it with "an intent to use the card, or to

sell it or to transfer it to a person other than the issurer or

the cardholder."    Id.   See also Cheatham v. Commonwealth, 215

Va. 286, 290, 208 S.E.2d 760, 763 (1974); Darnell v.

Commonwealth, 12 Va. App. 948, 955, 408 S.E.2d 540, 543 (1991).

     "It is elementary that where, as here, an indictment

charges an offense which consists of an act combined with a

particular intent, proof of the intent is essential to

conviction."    Patterson v. Commonwealth, 215 Va. 698, 699, 213

S.E.2d 752, 753 (1975).    Not only must proof of the intent rise

above "surmise or speculation," id., the Due Process Clause of

the Constitution requires the prosecution to prove the requisite

intent beyond a reasonable doubt.       Fiore v. White, 531 U.S. 225,

228-29 (2001) (holding that the Constitution requires proof

beyond a reasonable doubt of every element necessary to

establish the crime charged); McKeon v. Commonwealth, 211 Va.

24, 26-27, 175 S.E.2d 282, 284 (1970).

     The evidence proved that a man entered an unlocked motor

vehicle at night and riffled the interior of the vehicle.      He

opened the glove box, the center console, and the ashtray.      The

                                 - 8-
man removed the contents of the ashtray, which included an Exxon

credit card, loose change, and other items.    The evidence does

not indicate whether items were removed from the glove box or

the center console.    Minutes later, when the police detained

Preston Fisher about a mile away from the vehicle, a witness

identified Fisher by his clothing as the person seen riffling

the interior of the vehicle.    Fisher did not have the Exxon

card.    Although the Exxon credit card was found under a pile of

leaves within a visual distance from the place Fisher was

detained, it contained no identifiable fingerprints.    Fisher

made no statements from which an inference can be drawn

concerning intent.    Indeed, he denied he had taken any items

from the vehicle.

        When the issue on appeal concerns the sufficiency of the

evidence to prove beyond a reasonable doubt the required

statutory element of intent, "the appellate court is . . .

obligated to set aside the trial court's judgment when it is

contrary to the law and the evidence and, therefore, the

judgment is plainly wrong."     Tarpley v. Commownealth, 261 Va.

251, 256, 542 S.E.2d 761, 763 (2001).    Theft of property from a

vehicle does not ipso facto bespeak an intent other than to

deprive the owner of use of the property.    Viewed in the light

most favorable to the Commonwealth, the evidence in this record

leaves only to speculation and suspicion that the thief had some

other intent.    Speculation and suspicion are insufficient to

                                 - 9-
prove intent, Adkins v. Commonwealth, 217 Va. 437, 440, 229

S.E.2d 869, 871 (1976), and are never enough to sustain a

conviction.   Guill v. Commonwealth, 255 Va. 134, 139, 495 S.E.2d

489, 492 (1998); Hyde v. Commonwealth, 217 Va. 950, 955, 234

S.E.2d 74, 78 (1977).   The evidence in this case concerning the

requisite intent amounts to unsupported inferences, mere

probabilities, and speculation; it is insufficient to sustain

the Commonwealth's burden of proving beyond a reasonable doubt

Fisher intended to use, sell, or transfer the card.   Tarpley,

261 Va. at 257, 542 S.E.2d at 764; Moore v. Commonwealth, 254

Va. 184, 186, 491 S.E.2d 739, 740 (1997).   See also Smith v.

Commonwealth, 185 Va. 800, 819, 40 S.E.2d 273, 282 (1946).

     I, therefore, dissent.




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