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Scott v. Commonwealth

Supreme Court of Virginia

August 18, 2016

ARTAVIUS DARRELL SCOTT
v.
COMMONWEALTH OF VIRGINIA

         FROM THE COURT OF APPEALS OF VIRGINIA

          PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and McCullough, JJ., and Russell, S.J.

          OPINION

          CHARLES S. RUSSELL, SENIOR JUSTICE

         This appeal requires us to revisit the interpretation of Code § 18.2-192 as it applies to credit card theft.

         FACTS AND PROCEEDINGS

         In accordance with familiar principles of appellate review, the facts will be stated in the light most favorable to the Commonwealth, the prevailing party at trial. Baldwin v. Commonwealth, 274 Va. 276, 278, 645 S.E.2d 433, 433 (2007).

         Jessica Childrey (the victim) testified that the defendant, Artavius Scott, had been living with her prior to September 22, 2012 and was the father of her two young children. The parties had separated and the defendant was living elsewhere by September 22, 2012. On that date, Scott and his mother visited the victim's house to get some of his clothes and then left. Later that evening, Scott returned alone, knocked on the door and, through the closed door, identified himself, saying that he wanted to see the children. The victim refused to let him enter, telling him she would call the police if he did not leave. Scott eventually left.

         Almost 30 minutes later, the victim "heard something rattling upstairs" and went upstairs to investigate. She found Scott climbing in through her bedroom window. She ordered him to leave and again threatened to call the police. Scott produced a handgun, pointed it at her face and threatened to shoot her if she called the police. Scott then left, taking the victim's purse with him. She testified that she gave him no permission to take the purse and that it contained some cash, cigarettes, social security cards, and credit cards.

         The following day, Scott called the victim and told her that the purse was at her mother's house. When she recovered the purse, only the cash and cigarettes were missing. The credit cards were still in the purse but the victim had already cancelled her credit card accounts and did not think they had been used.

         At a bench trial in the Circuit Court of the City of Richmond, Scott was convicted of statutory burglary, possession of a firearm by a felon, assault and battery of a family member, [1]pointing or brandishing a firearm, and credit card theft in violation of Code § 18.2-192(1)(a). He was sentenced to a total of nine years and 24 months confinement for all offenses. Only the credit card conviction is before this Court on this appeal, Scott not having appealed his remaining convictions.

         Scott filed a petition for appeal with the Court of Appeals which that Court denied by per curiam order. We awarded Scott an appeal. There, as here, the sole question on appeal was whether Code § 18.2-192 requires proof of the specific intent to use, sell or transfer a credit card that has been taken from a cardholder without consent.

         ANALYSIS

         The question before us is purely one of statutory construction. On appeal, we consider such questions de novo. Warrington v. Commonwealth, 280 Va. 365, 370, 699 S.E.2d 233, 235 (2010). Code § 18.2-192, under which the defendant was convicted, provides in relevant part that:

(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 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 ...

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