THE CIRCUIT COURT OF LOUDOUN COUNTY J. Howe Brown, Jr., Judge
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
G. RUSSELL, JR. JUDGE
Rafael Salazar, appellant, was convicted in a bench trial of
felony identity theft 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.
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).
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.
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.
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.
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.
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.
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.
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. 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
Standard of Review
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)).
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.
Elements Required for a Conviction Under Code §
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 ...