                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Bumgardner and Clements
Argued at Chesapeake, Virginia


KEITH LAMONTE HILL
                                           MEMORANDUM OPINION * BY
v.   Record No. 2030-00-1              JUDGE RUDOLPH BUMGARDNER, III
                                                APRIL 30, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                John Edward Clarkson, Judge Designate

            S. Jane Chittom, Appellate Defender (Kevin P.
            Shea; Keith Lamonte Hill, pro se, on briefs),
            for appellant.

            Michael T. Judge, Assistant Attorney General
            (Randolph A. Beales, Attorney General, on
            brief), for appellee.


     A jury convicted Keith Lamonte Hill of credit card forgery,

uttering a forged credit card sales draft, 1 and credit card



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
         Code § 18.2-193(1)(c) provides:

            A person is guilty of credit card forgery
            when:

                *     *     *     *        *   *    *

            [h]e, 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 uses a credit card
            number of a card of which he is not the
            cardholder, or utters, or attempts to employ
fraud. 2   On appeal, he contends (1) there was no cardholder, (2)

the indictment named the wrong defrauded party, (3) the term

"payment device number" was unconstitutionally ambiguous, (4)

the evidence was insufficient to prove intent to defraud, and

(5) he was convicted under the wrong statute.    Finding no error,

we affirm.

     We review the evidence in the light most favorable to the

Commonwealth granting it all reasonable inferences.        Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997).       On

July 17, 1999, the defendant obtained credit at Gordon's

Jewelers by submitting an identification card displaying his

picture but supplying the name, address, phone number, and

social security number of Thomas McIntyre, an actual person.

The defendant obtained a $5,000 line of credit issued to the

name of Thomas McIntyre.    The credit company provided an account

access number that permitted immediate draws against the new

account.    The defendant used that number to make two purchases

totaling $2,823.59.    He signed the sales draft, "Thomas

McIntyre."




             as true, such forged draft knowing it to be
             forged.
     2
       Code § 18.2-195(1)(b) provides: "A person is guilty of
credit card fraud when, with intent to defraud any person, he
. . . [o]btains . . . goods . . . 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 . . . ."

                                 - 2 -
     Thomas McIntyre did not apply for credit at Gordon's

Jewelers, though he later received a plastic charge card through

the mail with $2,823.59 charged against it.   He did not sign the

sales draft which was admitted as an exhibit and which bore the

account access number and McIntyre's name written in the

defendant's hand.   McIntyre had no connection to the defendant

but had rented a truck a week earlier from a store where the

defendant worked.

     The defendant contends the evidence cannot prove he

committed credit card forgery because there was no cardholder

since he accessed the account before a credit card could be

issued.   Alternatively, the defendant maintains if there was a

cardholder, only he could have been that person.

     The legal definitions of "Credit card" and "Cardholder"

found in Code § 18.2-191 are considerably more extensive than

the literal definitions the defendant must employ to make his

argument.   "Credit card" is "any instrument or device, whether

known as a credit card . . . or by any other name, issued . . .

by an issuer for the use of the cardholder in obtaining money,

goods, services or anything else of value on credit."   Code

§ 18.2-191.   "Cardholder" is "the person . . . named on the face

of a credit card to whom or for whose benefit the credit card is

issued by an issuer."   Id.   A "credit card" is not just a

ubiquitous plastic card but is any device that allows a



                                - 3 -
"cardholder" to obtain anything of value on credit.    In turn, a

"cardholder" is the person to whom the credit was issued.

     The defendant applied for credit at Gordon's Jewelers by

representing himself as Thomas McIntyre.    Only the photograph on

the identity card belonged to the defendant.   The data supplied

about McIntyre permitted an immediate credit review and resulted

in credit being issued to the person identified by the data

employed, McIntyre.    The credit was extended to Thomas McIntyre.

When the defendant used the account access number, he employed a

device issued to or for the benefit of someone else.   The

statute did not require that McIntyre apply for the credit or be

aware that an application was being made.   Under these facts,

the jury could reasonably conclude that McIntyre was the

cardholder.

     The defendant also contends the indictment erred in naming

Gordon's Jewelers as the party defrauded.   He argues the bank

that extended the credit was the party defrauded.    However, the

statutes and indictments do not permit that claim.    Code

§ 18.2-193(1)(c) requires proof of "intent to defraud the

issuer, or a person or organization . . . providing money,

goods, services or anything else of value, or any other person

. . . ."   Code § 18.2-195(1)(b) requires proof of "intent to

defraud any person."   Each of the indictments charge the

defendant acted "with intent to defraud Gordon's Jewelers, or



                                - 4 -
any other person . . . ."   The statutes permit, and the

indictments charge, fraud of either the jeweler or the bank.

     The defendant makes other arguments that we only address

briefly.   He contends the term "payment device number" is

"unconstitutionally vague."   We do not address an argument that

is different than the argument advanced at trial.   Rule 5A:18;

Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630,

631 (1991).    The defendant contends the evidence failed to prove

he intended to defraud anyone.    That argument was not presented

in the petition for appeal nor granted as an issue on appeal.

McLean v. Commonwealth, 30 Va. App. 322, 329, 516 S.E.2d 717,

720 (1999).    Finally, the defendant contends the Commonwealth

should have charged him with identity fraud, Code § 18.2-186.3.

The Commonwealth elects what charges to place and prosecute.

Mason v. Commonwealth, 217 Va. 321, 323-24, 228 S.E.2d 683, 684

(1976) (felony or misdemeanor).    Moreover, that statute was

enacted after the defendant committed these offenses.

     Concluding the trial court did not err, we affirm the

convictions.

                                                           Affirmed.




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