Opinion
Record No. 1618-92-4
February 1, 1994
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY ROSEMARIE ANNUNZIATA, JUDGE.
Stefanie H. Snow, for appellant.
Robert B. Condon, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Appellant, Seung Kim, was convicted of credit card fraud. On appeal, he contends: (1) the evidence was insufficient to support his conviction, and (2) a fatal variance existed between the indictment and proof that was not brought to the trial court's attention, but which this Court should review under the ends of justice exception to Rule 5A:18. For the reasons stated below, we affirm appellant's conviction.
I.
On December 16, 1991, the grand jury issued an indictment charging that appellant "did feloniously and with the intent to defraud a person or organization providing money, goods, services, or anything else, valued in excess of $200.00, represent without the consent of the cardholder, that he was the holder of VISA card, number 4361 891 381 040." Beneath the charge was a reference to "Va. Code § 18.2-195."
Viewed in the light most favorable to the Commonwealth, the record reveals the pertinent facts:
In late September or early October of 1991, Teresa Kennedy lost her Visa credit card, which she subsequently reported stolen.
On the night of November 13, 1991 and the early hours of November 14, 1991, appellant along with five or six other persons ordered food and beverages in the amount of $367.95 at the Nation One Restaurant. The other people departed during the evening, leaving appellant as the last person remaining. When handed the check, appellant explained that he had no money, and he attempted to persuade the restaurant to let him pay on Friday when he received his paycheck. This arrangement was unsatisfactory to the restaurant because appellant had incurred a large bill a few days earlier and had written a bad check to pay it.
When appellant held out his wallet indicating that he had no money, a restaurant employee noticed a credit card and asked appellant whether he wanted to use the credit card to pay the bill. Appellant handed the credit card to Joey Kang, a waiter, who attempted to process the card. After running a computer check, Kang indicated that the card had been reported stolen, whereupon appellant objected to the use of the card and repeatedly requested that it be returned to him. Kang, however, would not return the card, stating that he had to return it to the credit card company. Eventually, the police were called, and appellant was arrested.
Kim testified that he found the card on November 13, 1991, and that a waitress at Nation One took the credit card out of his wallet. In rebuttal, the Commonwealth called a bank employee and Officer Frye, who presented evidence establishing that on October 4, 1991, appellant unsuccessfully attempted to use Kennedy's Visa card at an automatic teller machine.
At the conclusion of the evidence, in closing argument to the trial judge, defense counsel stated, "The question here is whether [appellant] actually used the credit card in order to pay a bill at Nation One." Counsel asserted that there was insufficient evidence that appellant actually gave (or presented) the card to a restaurant employee. Also, counsel argued that appellant's protestations and requests for the card's return precluded a finding of fraudulent intent. Evaluating the evidence against appellant, the trial judge discounted defense's closing arguments and found appellant guilty.
II.
The Court of Appeals will not consider an argument on appeal which was not presented to the trial court. Jacques v. Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) (citing Rule 5A:18). Moreover, "[i]t is well settled in Virginia that [an] objection [to a supposed variance] can not be raised for the first time on appeal." Booth v. Commonwealth, 165 Va. 794, 796, 183 S.E. 257, 257-58 (1936); see also Regensburg v. Commonwealth, 159 Va. 1024, 1026, 167 S.E. 247, 248 (1933) (holding that error assigned for variance between a bill of particulars and the offense of which defendant was found guilty will not be considered by reviewing court where question not raised in trial court so as to allow lower court to pass upon issue).
Appellant never sought clarification of the indictment through a bill of particulars, nor did he bring to the trial court's attention any alleged infirmities in the indictment so that the court could take corrective action. Thus, under Booth, 165 Va. at 796, 183 S.E. at 257-58, and under Rule 5A:18, appellant is precluded from presenting this issue for the first time on appeal.
Moreover, the record does not reflect any reason to invoke the good cause or ends of justice exceptions to Rule 5A:18. Appellant's conviction for using the stolen credit card is grounded in an offense contained in Code § 18.2-195(a) and is supported by the proof beyond a reasonable doubt. The indictment charges appellant with "representing" without the consent of the cardholder, that he was the holder of the lost/stolen credit card. Appellant makes much of the fact that the indictment used language from Code § 18.2-195(b),viz., "representing," rather than the language in subsection (a) which proscribes "using" a stolen credit card, and that subsection (b) requires the obtainment of goods. However, because the proof adduced at trial clearly proved that appellant "obtained or retained" the credit card in violation of Code § 18.2-192, he violated Code § 18.2-195(a) by attempting to use it. We find no semantic difference between "using" a stolen credit card for the purpose of obtaining services and "represent[ing]" that one is the rightful cardholder with the intent to defraud someone providing services. When one uses another's credit card for the purpose of obtaining goods, the user represents that it is the user's card or that the user has permission to use that card. Furthermore, unlike subsection (b) which requires the obtainment of goods, subsection (a) merely proscribes the unauthorized "use" of another's card.
III.
Appellant also asserts that the evidence was insufficient to prove an intent to defraud. "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." Fleming v. Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991). "Intent may be shown by a person's conduct and by his statements." Long v. Commonwealth, 8 Va. App. 194, 198, 379 S.E.2d 473, 476 (1989).
"The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code § 8.01-680).
The evidence, in the light most favorable to the Commonwealth, shows that appellant handed the credit card to a Nation One employee to pay for the bill. The Commonwealth's witnesses testified that appellant did not request the card's return or protest the card being used to satisfy the bill until he was apprised that it was reported stolen. "The weight which should be given to evidence and whether the testimony of a witness is credible are questions which the fact finder must decide."Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986).
Contrary to appellant's testimony that he found the card on November 13, 1991, the evidence established that appellant had been in possession of the card since October 4, 1991, at which time he attempted to use it. His conduct in presenting to the restaurant the stolen card, which he had kept in his possession for over five weeks, clearly supports a finding that he had an intent to defraud.
Accordingly, we cannot say that the judgment is plainly wrong or without evidence to support it.
For the reasons stated above, the judgment is
Affirmed.