Virginia Larceny/Shoplifting/Embezzlement DefenseVIRGINIA LARCENY DEFENSE ATTORNEYSDEFENDING CLIENTS CHARGED WITH VIRGINIA THEFT CRIMESIn Virginia, the taking of property without the consent of the owner is illegal. This is a serious offense that carries life changing consequences. The Virginia law offices of SRIS, P.C. have a number of excellent Virginia larceny attorneys & embezzlement defense lawyers in its offices in Fairfax, Lynchburg, Manassas, Richmond, and Virginia Beach, Virginia For more information or to make an appointment with SRIS, P.C., please call, send an e-mail or complete the on-line form
There are many different types of larceny offenses in Virginia. For example, a person in Virginia can be charged with simple larceny offense, which can cause a person to be charged with either misdemeanor larceny or felony larceny offense. A person can also be charged with an embezzlement offense. This too can result with a misdemeanor charge or a felony charge. However, this type of an offense could result in the judge imposing a much harsher sentence. Simply because someone is charged with a larceny offense in Virginia does not mean that they are going to be convicted as charged. The charge could be dismissed if the facts are such that the Commonwealth attorney decides that they will not prevail at trial or there are some compelling reasons as to why the Commonwealth attorney should not pursue prosecution of the charge. There are also different plea bargain option available to the client if certain facts are present and the attorney handling the matter is skilled at negotiating a good plea bargain. As always, there is the option of going to trial and proving one's innocence at trial. However, this option should be considered as a last resort as there are no guarantees as to the outcome of the case at trial, unless one has absolutely no other options available or one is certain as to the outcome of one's case. Only the client can ultimately decide what is best for themselves. A good lawyer will lay out the different options and then the client will have to decide how to proceed. To obtain a general overview of larceny or embezzlement defense, please click here To learn more about the laws pertaining to larceny or embezzlement defense in Maryland or Massachusetts, please click on the state. An larceny charge can be charged as a class 1 misdemeanor. This would still be a criminal charge. However, a larceny charge could be charged as a felony as well. This would have much more serious consequences if a person were to be convicted of this resulting from a very lengthy probation to a lengthy period of incarceration. See Virginia Code Section 18.2-10 and 18.2-11. The following are some of the different types of Virginia larceny charges one could face in the Commonwealth of Virginia:§ 18.2-95. Grand larceny defined; how punished (top) § 18.2-96. Petit larceny defined; how punished (top) § 18.2-98. Larceny of bank notes, checks, etc., or any book of accounts (top) § 18.2-102. Unauthorized use of animal, aircraft, vehicle or boat; consent; accessories or accomplices (top) § 18.2-103. Concealing or taking possession of merchandise; altering price tags; transferring goods from one container to another; counseling, etc., another in performance of such acts (top) § 18.2-104. Punishment for conviction of misdemeanor larceny (top) § 18.2-105.2. Manufacture, sale, etc., of devices to shield against electronic detection of shoplifting prohibited; penalty (top) § 18.2-108. Receiving, etc., stolen goods (top) § 18.2-108.01. Larceny with intent to sell or distribute; sale of stolen property; penalty (top) § 18.2-108.1. Receipt of stolen firearm (top) § 18.2-109. Receipt or transfer of possession of stolen vehicle, aircraft or boat (top) § 18.2-111. Embezzlement deemed larceny; indictment (top) § 18.2-115. Fraudulent conversion or removal of property subject to lien or title to which is in another (top) § 18.2-117. Failure of bailee to return animal, aircraft, vehicle or boat (top) The Virginia criminal defense attorneys and Law Offices of SRIS, P.C., is located in Fairfax, Manassas, Richmond and Virginia Beach but our sphere of activity is statewide. We have Virginia attorneys and an office located in Fairfax, Manassas, Richmond and Virginia Beach but our Virginia lawyers provide legal representation to clients all throughout Virginia. Our Virginia Larceny and Embezzlement attorneys and staff speak various languages, including English, Tamil, Spanish, French, Hindi, Cantonese, Mandarin, and Telugu. For more information or to make an appointment with SRIS, P.C., please call, send an e-mail or complete the on-line form The following cases are examples of how important it is to force the prosecutors in the Commonwealth of Virginia to prove the value of an item that is allegedly stolen when a person is charged with grand larceny. 16 Va.App. 78, 428 S.E.2d 14 March 9, 1993. The defendant appeals his three convictions of grand larceny challenging the sufficiency of the proof of both the larceny and the value of the property allegedly stolen. We hold that, although the evidence supports a finding of larceny, it does not support a finding that the value of the credit cards stolen was in excess of **15 $200. Neither the value of goods purchased using the stolen credit cards nor the amount of credit available through use of the credit cards is evidence of the value of the credit cards. In applying for three credit cards, the defendant used a Social Security number that was not his own. After obtaining the credit cards, he used them to purchase merchandise or obtain cash advances in an amount in excess of $200 with each card. Defendant was charged with common law larceny, an offense punishable under Code § 18.2-95.FN1 Larceny by trick occurs when one obtains the property of another by making a false representation of a past event or an existing fact with the intent to defraud the owner of the property by causing the owner to part with the property. People v. Long, 93 Mich.App. 579, 582, 286 N.W.2d 909, 911 (1979); see also Lafave & Scott, Criminal Law § 85, at 627, § 90, at 655-58, 660-65 (1972); cf. Baker v. Commonwealth, 225 Va. 192, 194, 300 S.E.2d 788, 789 (1983). The defendant contends that the use of a false Social Security number did not cause the issuers of each of the credit cards to issue the cards. However, representatives from the issuers of the credit *80 cards testified that in each instance the issuers relied on the false Social Security numbers given to them by the defendant in issuing the cards. The jury could have found from this evidence that the issuers of the credit cards relied on the defendant's false representation to part with the credit cards and, therefore, that the defendant obtained the credit cards through larceny. The defendant, however, was not charged with larceny of the merchandise or the cash advances. The indictments charged him only with having stolen the credit cards that were each alleged to have a value in excess of $200. Even if the defendant's multiple uses of the credit cards were acts of larceny, they were separate acts of larceny not charged in the indictments. The Commonwealth cannot prosecute a defendant for a specific larceny and prevail by proof of another act of larceny for which the defendant "was not prosecuted, and on which the jury was not instructed." Baker, 225 Va. at 195, 300 S.E.2d at 789. The defendant's convictions of grand larceny, therefore, must rest on evidence that the credit cards issued to him had a value of $200 or more. Under Code § 18.2-95, as at common law, only money or "goods and chattels" are the subject of larceny. "[N]either time nor services may be taken and carried away" and are not, therefore, contemplated as the subject of larceny. Lund v. Commonwealth, 217 Va. 688, 692, 232 S.E.2d 745, 748 (1977) (unauthorized use of a computer not the subject of larceny). At common law, choses in action were not the subject of larceny. People v. Marques, 184 Colo. 262, 266, 520 P.2d 113, 116 (1974); State v. West, 157 W.Va. 209, 212-13, 200 S.E.2d 859, 862 (1973); Tillery v. State, 44 Ala.App. 369, 371, 209 So.2d 432, 434 (1968); Felkner v. State, 218 Md. 300, 309, 146 A.2d 424, 430 (1958 Md.Ct.App.). Bank notes, checks and other writings and papers of value were not the subject of larceny at common law. West, 157 W.Va. at 212-13, 200 S.E.2d at 862. However, the taking of the paper on which *81 they were written could be larceny. Felkner, 218 Md. at 309, 146 A.2d at 430. A credit card is "any instrument or device ... issued ... by an issuer for the use of the cardholder in obtaining money, goods, services, or any other thing of value." Code § 11-30(b). A credit card is a token of credit extended to the cardholder. **16 See Code § 8.5-103. Thus, at common law only the card itself, not the line of credit it represented, could be the subject of larceny. The same limitation applies under Code § 18.2-95. See Lund, 217 Va. at 692, 232 S.E.2d at 748. No evidence was presented of the value of the credit cards, only of the lines of credit they represented. Consequently, the evidence did not support a finding that the card had a value greater than $200, and the defendant could be convicted only of petit larceny, not grand larceny. Contra Miller v. People, 193 Colo. 415, 418, 566 P.2d 1059, 1061 (1977) ( en banc ) (evidence of "illegitimate" market value and "dollar amount which may be purchased by using the credit card" are admissible to prove value). For these reasons, we reverse the judgments of conviction of grand larceny and remand the matter for a trial on a charge of petit larceny, if the Commonwealth so chooses. See Knight v. Commonwealth, 225 Va. 85, 90, 300 S.E.2d 600, 602-03 (1983). Reversed and remanded. Va.App.,1993. 44 Va.App. 574, 606 S.E.2d 518 Briefs and Other Related Documents Any person who, with intent to defraud, shall make or draw or utter or deliver any check, draft, or order for the payment of money ... knowing, at the time of such making, drawing, uttering or delivering, that the maker or drawer has not sufficient funds in, or credit with, such bank ... shall be guilty of larceny; and, if this check, draft, or order has a represented value of $200 or more, such person shall be guilty of a Class 6 felony. In cases in which such value is less than $200, the person shall be guilty of a Class 1 misdemeanor. A prosecution for a misdemeanor, or any pecuniary fine, forfeiture, penalty or amercement, shall be commenced within one year next after there was cause therefor, except that a prosecution for petit larceny may be commenced within five years.... Generally, felonies are not subject to a statute of limitations. See generally Ronald J. Bacigal, Criminal Procedure § 14-9, 413 (2004). Generally, misdemeanors are subject to a one-year limitation, but petit larceny is subject to a five-year limitation. Code § 19.2-8. At early common law, larceny was the only theft crime, but it required a taking from the possession of another. New crimes such as embezzlement and false pretenses developed to fill the gaps caused by the intricacies of proving possession in larceny prosecutions. See Roger D. Groot, Criminal Offenses and Defenses in Virginia 284, 503 (2004). In 1847-48, the General Assembly began enacting statutes that declared persons who committed various acts of theft "shall be deemed guilty of larceny thereof." 1847-48 Va. Acts, ch. 4. It employed that legal fiction in an effort to consolidate the law of theft and to eliminate the "indistinct," "almost imaginary" differences in what "all amount to a criminal and fraudulent conversion by one man to his own use of another man's *577 property." Anable v. Commonwealth, 65 Va. (24 Gratt.) 563, 580-81 (1873) (Moncure, P., dissenting). The General Assembly has continued that practice to the present. 2003 Va. Acts, ch. 733. Code § 18.2-181 declares that any person who utters a bad check "shall be guilty of larceny." The defendant concedes she was convicted of larceny, but she argues her conviction was not petit larceny to which the five-year limitation applies. She argues that Code § 18.2-96 defines the term "petit larceny," FN3 and only violations of that single code section receive the five-year statute of limitations. 1. Commits larceny from the person of another of money or other thing of value of less than $5, or 2. Commits simple larceny not from the person of another of goods and chattels of the value of less than $200, except as provided in subdivision (iii) of § 18.2-95, shall be deemed guilty of petit larceny, which shall be punishable as a Class 1 misdemeanor. The term larceny is defined as "the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently." Dunlavey v. Commonwealth, 184 Va. 521, 524, 35 S.E.2d 763, 764 (1945) (citing Vaughan v. Lytton, 126 Va. 671, 679, 101 S.E. 865, 867 (1920)). Larceny is either grand or petit, "offenses, which are considerably distinguished in their punishment, but not otherwise." 4 William Blackstone, Commentaries on the Laws of England ch. 17, 229 (1765). The Statute of Westminster I, 3 Edw., ch. 15 (1275), first created the classifications of petit and grand larceny and distinguished the two by the punishment prescribed. "Both were felonies." Bell v. Commonwealth, 167 Va. 526, 531, 189 S.E. 441, 444 (1937). Grand larceny and petit larceny were not different crimes, but they were penalty gradations for the single offense, larceny. "At common law, there was no distinction between grand and petit larceny except in the punishment*578 , which was death in the one case and whipping in the other,-by statute extended to transportation for seven years. 4 George 1, chapter 11, 4th Blackstone, pages 229, 238." Id. The term " larceny" includes both petit and grand grades of the offense. The value of the goods taken is not an element of petit larceny, but the value of the goods is an essential element of grand larceny. Knight v. Commonwealth, 225 Va. 85, 88, 300 S.E.2d 600, 601 (1983). "Proof that an article has some value is sufficient to warrant a conviction of petit larceny, but where the value of the thing stolen determines the grade of the offense, the value must be alleged and the Commonwealth must prove the value to be the statutory amount." Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954). From its first enactment in 1920, the bad check law has provided that anyone who obtained property by means of a worthless check shall be deemed guilty of larceny. Page v. Wilson, 168 Va. 447, 450-51, 191 S.E. 678, 680 (1937). The original act did not include any penalty provision. The penalty was supplied by the provisions applicable to larceny. In 1926, the offense became a misdemeanor. 1926 Va. Acts, ch. 292. In 1930, the General Assembly changed the offense to grand larceny when a sufficient sum was involved. 168 Va. at 451, 191 S.E. at 680. Final amendments in 1934 established the act in its present form. Despite the "frequent raising and lowering of the degree of crime dealt with," the bad check statute has retained a uniform, "practically identical" definition of the crime. Cook v. Commonwealth, 178 Va. 251, 256, 16 S.E.2d 635, 637 (1941) (tracing the evolution of the bad check statute). From its first enactment, the bad check statute encompassed both the misdemeanor and felony grades of the crime with the term "larceny." The statute punished the taking of property with no intent to pay for it as a form of larceny, and it adopted the gradations applicable to larceny. "The giving of bad checks *579 for what purports to be cash purchases is discouraged." Page, 168 Va. at 452, 191 S.E. at 681. The 1934 Act consisted of a single section of the Code broken into three numbered paragraphs. "The first paragraph of the statute, containing the definition of the offense and designating it as larceny, remains virtually unchanged since the statute was originally passed by the General Assembly in 1920." Bray v. Commonwealth, 9 Va.App. 417, 422, 388 S.E.2d 837, 839 (1990). The "Third" paragraph, which created the inference of intent, is unchanged, but now appears as separate Code § 18.2-183. The "Second" paragraph of the 1934 Act stated the penalty if the defendant "would be guilty of grand larceny." It made no mention of the penalty if the defendant would have been guilty of petit larceny. Any person who, under the provisions of this act, would be guilty of grand larceny shall, in the discretion of the jury or court trying the case without a jury, be confined in the penitentiary not less than one year nor more than five years, or be confined in jail not exceeding twelve months and fined not exceeding five hundred dollars. 1934 Va. Acts, ch. 363. The first phrase in the "Second" paragraph, "would be guilty of grand larceny," clearly linked directly with the last phrase in the "First" paragraph, "guilty of larceny" and implied grand larceny is only one form of that larceny. By 1934, the maximum penalty for felony bad check was lower than that for simple grand larceny. The bad check statute required a special provision prescribing the penalty for the felony grade because it differed from the general provision for grand larceny. The statute had no need to provide a penalty for the misdemeanor. The general provisions applicable to petit larceny supplied the penalty for the misdemeanor offense, just as it had done for both grades of the offense in the earlier versions of the statute. Code § 18.2-181 now prescribes the penalty for both the misdemeanor and felony grades of the offense. The misdemeanor*580 offense required a separate penalty provision after misdemeanors were divided into four classes. 1975 Va. Acts, chs. 14, 15. A more important reason for including penalty provisions for both misdemeanor and felony grades is to clarify that the face amount of the check determines the grade of offense. It eliminates a problem that arose as intangible property became a common object of the various acts of larceny. "Bank notes, checks and other writings and papers of value were not the subject of **521 larceny at common law." Owolabi v. Commonwealth, 16 Va.App. 78, 80, 428 S.E.2d 14, 15 (1993). Without evidence of the actual value of the instrument, only the paper was taken and only petit larceny was proven. Id. at 81, 428 S.E.2d at 15. Present Code § 18.2-98 rectified the problem by making the face value of an instrument proof of its actual value. "Indeed, no proof of its actual value was required, as the law deems it to be of the value expressed on its face." Whalen v. Commonwealth, 90 Va. 544, 549, 19 S.E. 182, 183 (1894). The penalty clause of Code § 18.2-181 makes clear that face value of an instrument determines the grade of the offense just as Code § 18.2-98 does for takings. If the "represented value" was $200 or more, the act was a Class 6 felony; if less than $200, a Class I misdemeanor. Code § 18.2-181. The General Assembly used the same standard to distinguish between felony and misdemeanor bad checks in Code § 18.2-181 that it used to distinguish between felony and misdemeanor larcenies in Code §§ 18.2-95 and -96. The demarcation in both is $200, and both of the misdemeanor offenses are punished as Class 1 misdemeanors. Code § 18.2-96 does not define "petit larceny" as a term of art that provides the precise meaning of the term applicable to other titles of the Code. The title of the statute might suggest that interpretation, "Petit larceny defined; how punished." However, the title of a statute does not give meaning to a statute. Code § 1-13.9. Titles are for information and convenience. *581 Jones v. Div. of Child Support Enforcement ex rel. Owens, 19 Va.App. 184, 189, 450 S.E.2d 172, 175 (1994). The wording of the statute provides no definition of "petit larceny." The first provision fixes the monetary boundary between felony and misdemeanor larceny from the person. Larceny from the person has never been a form of simple larceny, though petit larceny is. Larceny "is distinguished by the law into two sorts; the one called simple larceny, or plain theft unaccompanied with any other atrocious circumstance; and mixt or compound larceny, which also includes in it the aggravation of a taking from one's house or person." Blackstone, supra, at 229. In addition, the statute provides that the two acts shall be "deemed petit larceny." This Court has interpreted similar phrases as only relating to the punishment characteristics of the deemed offense. Davis v. Commonwealth, 14 Va.App. 709, 713, 419 S.E.2d 285, 288 (1992); Bruhn v. Commonwealth, 35 Va.App. 339, 345-46, 544 S.E.2d 895, 898 (2001). That rationale does not impart the definition of the deemed offense to the defined term. Code § 18.2-96 merely designates the monetary standard for the misdemeanor grade of two forms of theft, larceny from the person and simple larceny, and prescribes the penalty for the lower grade of the crimes. As with other common law crimes, case law as rendered over time establishes the elements of the offenses and gives definition to the term. Code § 18.2-96 does not define the term "petty larceny" as a term of art. It simply prescribes the penalty for two forms of misdemeanor taking. The statute of limitations applies a five-year limitation to prosecutions of "petit larceny." That term means the misdemeanor grade of larceny. The punishment imposed for any offense determines its grade. Code § 18.2-8. Offenses punishable by death or imprisonment are felonies; those punishable by jail or fine are misdemeanors. Benton v. Commonwealth, 89 Va. 570, 572, 16 S.E. 725, 725 (1893). Petit larceny has never borne the penalty of death or imprisonment. *582 It is the misdemeanor level of those acts that the General Assembly defines as larceny. The defendant concedes that her rationale would mean the five-year statute of limitations would only apply to violations of Code § 18.2-96. The long history of designating various unlawful takings as larceny shows the General Assembly did not intend such a restrictive meaning. "[W]e are required to adopt the plain meaning of the statute rather than a curious, narrow or strained construction." Sylvestre v. Commonwealth, 10 Va.App. 253, 257, 391 S.E.2d 336, 339 (1990). To do so, we hold the General Assembly intended the five-year statute **522 of limitations to apply to misdemeanor bad check offenses. The General Assembly defined uttering a bad check as larceny. This offense involved uttering a check of $140.88. The penalty for the offense makes it a misdemeanor. By designating uttering a bad check to be a form of larceny, Code § 18.2-181 makes the misdemeanor grade of the offense a form of larceny. The lesser grade of larceny has been known as petit larceny for centuries. The trial court correctly applied the five-year statute of limitations applicable to this misdemeanor violation of the bad check statute. Accordingly, we affirm. Affirmed. BENTON, J., dissenting. Any person who, with intent to defraud, shall make or draw or utter or deliver any check ... for the payment of money, upon any bank, ... knowing, at the time of such making, drawing, uttering or delivering, that the maker or drawer has not sufficient funds in, or credit with, such bank, for the payment of such check, ... although no express representation is made in reference thereto, shall be guilty *583 of larceny; and, if this check, draft, or order has a represented value of $200 or more, such person shall be guilty of a Class 6 felony. In cases in which such value is less than $200, the person shall be guilty of a Class 1 misdemeanor. The Commonwealth instituted this prosecution more than one year after the event occurred. Except as provided in the following statute, however, the legislature has put a one-year limitation on the prosecution for misdemeanors: A prosecution for a misdemeanor, or any pecuniary fine, forfeiture, penalty or amercement, shall be commenced within one year next after there was cause therefor, except that a prosecution for petit larceny may be commenced within five years, and for an attempt to produce abortion, within two years after commission of the offense. Code § 19.2-8. Although this statute expressly bars "prosecution for a misdemeanor" after one year, and Code § 18.2-181 expressly denotes the offense as a "Class 1 misdemeanor," the Commonwealth contends that the exception contained within the statute of limitation applies. I disagree. "[A] statute of limitations reflects a legislative judgment that, after a certain time, no quantum of evidence is sufficient to convict." Stogner v. California, 539 U.S. 607, 615-16, 123 S.Ct. 2446, 2452, 156 L.Ed.2d 544 (2003). To give effect to this legislative judgment, "courts are obligated to enforce statutes of limitation strictly and to construe any exception thereto narrowly." Westminster Invest. Corp. v. Lamps Unltd., 237 Va. 543, 547, 379 S.E.2d 316, 318 (1989). Accord Arrington v. Peoples Security Life Ins., 250 Va. 52, 55, 458 S.E.2d 289, 290 (1995). No language within the text of Code § 18.2-181 denotes the offense to be petit larceny. No other statute denotes the offense to be petit larceny. Indeed, the term "petit larceny" is a creature of statute and is defined as follows: § 18.2-96. Petit larceny defined; how punished.-Any person who: 1. Commits larceny from the person of another of money or other thing of value of less than $5, or *584 2. Commits simple larceny not from the person of another of goods and chattels of the value of less than $200, except as provided in subdivision (iii) of § 18.2-95, shall be deemed guilty of petit larceny, which shall be punishable as a Class 1 misdemeanor. This statute distinguishes between "larceny," see subpart 1. and "simple larceny," see subpart 2. The rule has long been established in Virginia that "[s]imple larceny ... is: 'the wrongful or fraudulent taking of personal goods of some intrinsic value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently.' " **523 Vaughan v. Lytton, 126 Va. 671, 679, 101 S.E. 865, 867 (1920). Simply put, Code § 18.2-181 does not create an offense that falls within the definition of "simple larceny" because it is neither a taking "without ... assent," id., nor a taking involving "complete and absolute possession of the stolen property," Jones v. Commonwealth, 3 Va.App. 295, 301, 349 S.E.2d 414, 418 (1986). Significantly, the Supreme Court has unambiguously held that "[t]he elements of the statutory [bad check] offense are materially different from those of common law larceny." Payne v. Commonwealth, 222 Va. 485, 488, 281 S.E.2d 873, 874 (1981). Unlike simple larceny, which requires a showing that the accused obtained possession of the property, "[t]o prove a bad-check offense, '[i]t need not be shown ... that anything was received in return for the check,' for 'the offense is complete when, with the requisite intent, a person utters a check he knows to be worthless.' " Id. (citation omitted). Similarly, we have held in Snead v. Commonwealth, 11 Va.App. 643, 647, 400 S.E.2d 806, 808 (1991), that "bad check charges ... brought under Code § 18.2-181 ... [are] not violations of [Code] § 18.2-95[, which defines grand larceny,] or [Code] § 18.2-96[, which defines petit larceny]." Although it could have, the legislature did not write Code § 18.2-181 so as to designate the bad check offense involving a value less than $200 to be "petit larceny." By express terms, the legislature designated a violation of Code § 18.2-181 to be a "Class 1 misdemeanor." *585 Code § 19.2-8, therefore, bars this prosecution, which was not commenced within one year after there was a cause giving rise to the violation, because a violation of Code § 18.2-181 does not constitute either simple larceny or petit larceny, but does constitute "a misdemeanor" offense. The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity. For these reasons and others, ... "criminal limitations statutes are 'to be liberally interpreted in favor of repose.' " Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970) (citations omitted). "If[, as in this case,] the language of a statute is plain and unambiguous, and its meaning perfectly clear and definite, effect must be given to it regardless of what courts think of its wisdom or policy." Temple v. City of Petersburg, 182 Va. 418, 423, 29 S.E.2d 357, 358 (1944). We may not extend the meaning of the statute "simply because it may seem to us that a similar policy applies, or upon the speculation that, if the legislature had thought of it very likely broader words would have been used." McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931). Therefore, I dissent. Va.App.,2004. The following case discusses the purpose of the statute that makes it illegal to conceal merchandise with the intent of shoplifting. Court of Appeals of Virginia, BACKGROUND On May 25, 2001, employees of a Henrico County video store called the police after observing appellant acting suspiciously while inside the store. An officer responded to the scene and asked appellant whether he "had any property of the store." Appellant admitted he had some "cover boxes" but said he "didn't feel they were of any value." Appellant removed the cover boxes from his jacket and gave them to the officer, who returned them to store personnel. The evidence established a cover box is a movie or video box used to advertise videos that the video store offers for rent. A cover box comprises either a video box inside a clear plastic case or a shrink-wrapped video **580 box with a piece of styrofoam inside instead of a video tape. The box itself bears the name of the movie and related pictures. It summarizes the movie's plot and lists the cast and any awards the movie may have won. The cover box is placed "on the shelf in front of the actual videos [the store is] trying to rent." A video box, while in use as a cover box, is an advertising aid only. It bears no price tag or bar code, has no price in the store's computer, and is not offered for sale or rent. Although a cover box is used only for advertising and is not available for rent with the videotape it advertises, the video store always receives as many cover boxes for a movie as it does videotapes of that movie. On some occasions, the store receives the video box in cover box form with styrofoam and shrink wrap. On other occasions, the store receives the videotape inside the video box and has to remove the videotape and use its own supplies to convert the video box into a cover box. *604 When a movie has "been on the wall for a while and it no longer rents as well," the store may decide to sell it as a previously viewed product. Under these circumstances, an employee "put[s] the rental product video [ ] ... back in [its] cover box[ ] and ... sell[s]" the box and video together. On other occasions, the video store is required to reunite the video with the box and return both to "the actual studio that sen[t] ... the movies." Under some circumstances, the video store might give away a video box "after it ha[s] served its useful purpose." The investigating officer issued appellant a summons charging him with concealment of merchandise with a value of $5.00. The officer testified that the boxes bore no price tags and that the figure on the warrant was "[a] replacement cost ... suggested to him" when he "investigate[d] through another party not in the store." Appellant elicited this testimony from the investigating officer on cross-examination and did not object to the officer's testimony about replacement cost. Appellant argued at trial that the cover boxes he concealed did not qualify as goods or merchandise at the time of concealment because they were not offered for sale. He conceded that they had some value when used as cover boxes and that some cover boxes eventually become "goods or merchandise" when reunited with a videotape and offered for sale, but he argued that the cover boxes at issue were not goods or merchandise when he concealed them. The trial court gave counsel an opportunity to submit legal memoranda on the issue. After receiving those memoranda, the trial court ruled the legislature intended "goods" as used in the concealment statute to encompass "tangible or moveable personal property" other than merchandise. Thus, it found appellant's behavior constituted concealment under Code § 18.2-103, and it convicted him of the charged offense. II. ANALYSIS Appellant was convicted of violating Code § 18.2-103, which provides as follows: *605 § 18.2-103. Concealing or taking possession of merchandise; altering price tags; transferring goods from one container to another; counseling, etc., another in performance of such acts. Whoever, without authority, with the intention of converting goods or merchandise to his own or another's use without having paid the full purchase price thereof, or of defrauding the owner of the value of the goods or merchandise, (i) willfully conceals or takes possession of the goods or merchandise of any store or other mercantile establishment, or (ii) alters the price tag or other price marking on such goods or merchandise, or transfers the goods from one container to another, or (iii) counsels, assists, aids or abets another in the performance of any of the above acts, when the value of the goods or merchandise involved in the offense is less than $200, shall be guilty of petit larceny and, when the value of the goods or merchandise involved in the offense is $200 or more, shall be guilty of grand larceny. The willful concealment of goods or merchandise of any store or other mercantile establishment, while still on the premises thereof, shall be prima facie evidence of an **581 intent to convert and defraud the owner thereof out of the value of the goods or merchandise. (Emphases added). Appellant contends that the language in the statute shows the legislature's intent to equate "goods" with "merchandise," proscribing concealment only of wares offered for sale by a merchant. We disagree. Under accepted principles of statutory construction, "words and phrases used in a statute should be given their ordinary and usually accepted meaning unless a different intention is fairly manifest." Woolfolk v. Commonwealth, 18 Va.App. 840, 847, 447 S.E.2d 530, 534 (1994). In addition, Proper construction seeks to harmonize the provisions of a statute both internally and in relation to other statutes.... [L]egislative purpose can best be " 'ascertained from the act itself when read in light of other statutes relating to the *606 same subject matter.' " Moreno v. Moreno, 24 Va.App. 190, 197, 480 S.E.2d 792, 796 (1997) (citation omitted). The doctrine of pari materia teaches that " 'statutes are not to be considered as isolated fragments of law, but as a whole, or as parts of a great, connected homogenous system, or a simple and complete statutory arrangement.' " Id. at 198, 480 S.E.2d at 796 (citation omitted). DMV v. Wallace, 29 Va.App. 228, 233-34, 511 S.E.2d 423, 425 (1999) (citation omitted). In order to ascertain the intent of the legislature, we turn first to the dictionary definitions of "goods" and "merchandise." Black's Law Dictionary defines "[g]oods" as "[t]angible or movable personal property other than money; esp., articles of trade or items of merchandise." Black's Law Dictionary 701 (7th ed.1999). "Merchandise" is defined as "[g]oods that are bought and sold in business; commercial wares." Id. at 1000. Thus, although "goods" may be synonymous with "merchandise," the dictionary recognizes a definition of "goods" which is broader than the definition of "merchandise." Under the broader of these definitions, the term "goods" includes not only merchandise offered for sale but also any other items of tangible personal property belonging to the merchant, including advertising materials, display racks, mirrors and the like. "Although any ambiguity or reasonable doubt as to the proper construction of a penal statute must be resolved in favor of the accused, a defendant is not entitled to benefit from an ' unreasonably restrictive interpretation of the statute.' " O'Banion v. Commonwealth, 33 Va.App. 47, 57, 531 S.E.2d 599, 604 (2000) ( en banc) (quoting Holloman v. Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 357 (1980) (quoting Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979))). It would be absurd to conclude that the legislature would say the same thing twice in one statutory provision.... The rules of statutory interpretation argue against reading any legislative enactment in a manner that will make a portion *607 of it useless, repetitious, or absurd. On the contrary, it is well established that every act of the legislature should be read so as to give reasonable effect to every word and to promote the ability of the enactment to remedy the mischief at which it is directed. Clark v. Commonwealth, 22 Va.App. 673, 683, 472 S.E.2d 663, 667-68 (1996), aff'd on reh'g en banc, 24 Va.App. 253, 481 S.E.2d 495 (1997). These principles support the conclusion that the legislature intended to use the broader definition of goods so as to encompass more than just merchandise. In addition, in Code § 18.2-103, the legislature employed the disputed terms in the disjunctive, as "goods or merchandise," which reinforces the conclusion that the legislature intended the terms would not be synonymous. Code § 18.2-103 (emphasis added). Further, the legislature could reasonably have feared that, if it had used only the term "goods," the statute would be misconstrued to apply only to the narrower definition of "goods," i.e., "articles of trade or items of merchandise." Black's, supra, at 701. Finally, although appellant points out that the statute proscribes concealment "with the intention of converting goods or merchandise ... without having paid the full purchase price thereof," it also proscribes concealment "with the intention ... of defrauding the owner of the value of the goods or merchandise,"**582 which makes clear that the item concealed need not have a purchase price as long as it has some value. Code § 18.2-103 (emphases added). The legislature's use of only the word "goods" in proscribing "transfers [of] goods from one container to another" does not require a different result.FN1 The statute also covers the transfer*608 of "merchandise" from one container to another because, under the above definitions, items which are merchandise also are goods. F. For purposes of this section:
Affirmed. Va.App.,2003. The following is an example of a case regarding credit card fraud and what level of proof is required by the Commonwealth to prove fraud. Court of Appeals of Virginia, 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 *528 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 **332 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. *529 Harrison never had possession of Kretzer's credit card, only the credit card number. 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 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.' " *530 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 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 **333 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 *531 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: (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 Pitchford a false address when he filled out the warranty card. This evidence was sufficient for the trial judge to find *532 beyond a reasonable doubt that Harrison had the requisite intent to defraud. For the foregoing reasons, we affirm the convictions. Affirmed. Va.App.,2000. We Are a Designated Debt Relief Agency under Federal Law. We Provide Legal Assistance to Consumers Seeking Relief Under the Bankruptcy Code. |
Tuesday, October 7, 2008
- Family Law
- Uncontested Divorce
- Contested Divorce
- Child Custody Laws
- Grandparents Rights
- Surrogacy
- Property & Asset Distribution
- Spousal Support & Alimony
- Criminal Defense
- Felonies
- Misdemeanors
- Sex Offense Law
- Prostitution & Solicitation
- Child Abuse
- Rape
- Internet Sex Crimes
- Larceny
- Traffic Violations
- DUI & DWI
- Underage Drinking & Penalties
- Driving on a Suspended License
- Drug Charges
- Reckless Driving
- Expungement Law
- Military Law
- Environmental Law & Underground Storage Tank
- Bankruptcy Overview
- Chapter 7 Bankruptcy
- Chapter 11 Bankruptcy
- Chapter 13 Bankruptcy
- Business Immigration Law
- Individual Immigration Law
- Personal Injury
- OTHER INFORMATIVE PAGES:
- Criminal Defense Newsletter
