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Salazar v. Commonwealth

Court of Appeals of Virginia

August 23, 2016


         FROM THE CIRCUIT COURT OF LOUDOUN COUNTY J. Howe Brown, Jr., Judge Designate

          Sean D. O'Malie (Law Offices of Sean D. O'Malie, PLC, on briefs), for appellant.

          Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

          Present: Judges Beales, Russell and AtLee Argued at Fredericksburg, Virginia



         José Rafael Salazar, appellant, was convicted in a bench trial of felony identity theft[1] in violation of Code § 18.2-186.3. On appeal, appellant argues the evidence was insufficient to establish all of the elements of the offense and that, even if the offense had been proven, the trial court erred in finding that the evidence established a financial loss in excess of the felony threshold of $200. For the reasons stated below, we affirm.


         "Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below." Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). This principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and internal quotation marks omitted).

         So viewed, the evidence establishes that, in 1999, Christian Childers purchased a home in Loudoun County, Virginia. In 2007 or 2008, Childers refinanced his mortgage on the property through Wells Fargo. In order to obtain that mortgage, Childers provided Wells Fargo with his social security number. Beginning in 2009, Childers began receiving mail and telephone calls at his home for the appellant, José Salazar, whom Childers did not know. In 2010, as a result of an increase in the amount of correspondence addressed to Salazar he received at his home, Childers subscribed to a credit monitoring service as a precaution. The cost of the credit monitoring service was approximately $29 a month, and Childers maintained the service from January 2010 through the time of trial.

         In 2012, Childers received emails from Wells Fargo that were addressed to him, yet referenced José Salazar, a loan number that Childers did not recognize, and an unfamiliar address in Silver Spring, Maryland. Childers testified that he never used his social security number to obtain a mortgage loan for a home in Silver Spring, Maryland and that he never gave anyone else permission to do so.

         Detective Terry Sheffer with the Loudoun County Sheriff's Office initiated an investigation regarding the correspondence and the Silver Spring property and testified at trial regarding what he discovered. In the course of the investigation, Detective Sheffer spoke with appellant. Appellant identified a loan application that he filed to obtain a refinance on his mortgage loan for the Silver Spring residence. Appellant told Detective Sheffer that the social security number on the document was not his own and that he "made up the number" in order to obtain the loan. The social security number appellant used on the application was Childers' social security number.

         Kimberly Moody, a financial crimes investigator for Wells Fargo also testified. Through her testimony, it was established that, in the records of Wells Fargo, the entity that ultimately held mortgages on both the home of appellant and the home of Childers, Childers' social security number was associated with two separate mortgage loans. The mortgage loan taken out by Childers on his own home was tied to Childers' social security number, and the mortgage loan appellant had taken out on his Silver Spring home was also tied to Childers' social security number.

         At the conclusion of the evidence, appellant moved to strike the Commonwealth's evidence and argued that no evidence showed that the mortgagor had relied on Childers' social security number in approving the loan or that appellant knowingly had selected Childers' social security number as opposed to choosing the number randomly or by mistake. Appellant also argued that the Commonwealth failed to prove that the mortgagor suffered a financial loss. The trial court denied the motions and found appellant guilty.

         Upon imposition of sentence, the trial court referred to the theft of "the information of a particular social security number" and indicated that it did not believe appellant's statement that he had made up the social security number without any knowledge that it was a real social security number.

         This appeal followed. Specifically, appellant argues that the Commonwealth was required to prove: (1) that he knowingly used Childers' social security number, (2) that he had the intent to defraud, and (3) that he obtained money, credit, loans, goods or services through the use of Childers' social security number. He contends that the evidence did not establish these elements.[2] Alternatively, he argues that the evidence was insufficient to establish that anyone suffered a financial loss in excess of $200 as a result of his use of the number, and therefore, the trial court erred in convicting him of a felony as opposed to a misdemeanor.[3]


         I. Standard of Review

         In reviewing appellant's challenge to the sufficiency of the evidence, we note that we examine a factual finding "with the highest degree of appellate deference." Thomas v. Commonwealth, 48 Va.App. 605, 608, 633 S.E.2d 229, 231 (2006). The only "relevant question is, after reviewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010) (emphasis added). This deferential appellate standard "applies not only to the historical facts themselves, but the inferences from those facts as well." Clanton v. Commonwealth, 53 Va.App. 561, 566, 673 S.E.2d 904, 907 (2009) (en banc) (internal quotation marks omitted). "Thus, a factfinder may 'draw reasonable inferences from basic facts to ultimate facts.'" Tizon v. Commonwealth, 60 Va.App. 1, 10, 723 S.E.2d 260, 264 (2012) (quoting Haskins v. Commonwealth, 44 Va.App. 1, 10, 602 S.E.2d 402, 406 (2004)).

         However, the determination of what elements the Commonwealth was required to prove to obtain a conviction under Code § 18.2-186.3(A)(2) requires us to construe the statute. We conduct such a review de novo.

         II. Elements Required for a Conviction Under Code § 18.2-186.3(A)(2)

         To ascertain the elements that the Commonwealth must prove to support a conviction under Code § 18.2-186.3(A)(2), we turn to the statute itself. "When construing a statute, our primary objective is 'to ascertain and give effect to legislative intent, ' as expressed by the language used in the statute." Cuccinelli v. Rector & Visitors of the Univ. of Va., 283 Va. 420, 425, 722 S.E.2d 626, 629 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418, 706 S.E.2d 879, 882 (2011)) (further citation and internal quotation marks omitted). "Under basic rules of statutory construction, we determine the General Assembly's intent from the words contained in the statute, " Williams v. Commonwealth, 265 Va. 268, 271, 576 S.E.2d 468, 470 ...

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