THE CIRCUIT COURT OF THE CITY OF RICHMOND Melvin R. Hughes,
Jr., Judge Designate
Whitley, Deputy Public Defender, for appellant.
Benjamin H. Katz, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Decker, Malveaux and Senior Judge Clements
Argued at Richmond, Virginia
GRAFF DECKER JUDGE
Monique White appeals her convictions for financial
exploitation of a mentally incapacitated person and credit
card fraud, in violation of Code §§ 18.2-178.1 and
-195. The appellant argues that the Commonwealth failed to
prove that the victim was mentally incapacitated within the
definition of the financial exploitation statute. She also
argues that the Commonwealth failed to prove that she
possessed the credit card without the consent of the
cardholder. For the reasons that follow, we affirm the
2003, the victim, A.C.,  contracted West Nile virus and
encephalitis. As a result, she suffered a serious brain
injury that significantly compromised her mental and physical
capabilities. M.B., the victim's sister-in-law, had her
power of attorney. Starting in 2004, M.B. arranged
around-the-clock in-home health care for the victim. In 2012,
M.B. hired the company A Heart for You to provide A.C's
nursing care. In 2014, the company placed the appellant in
the victim's home as a health care provider.
2014, the time of the offenses, A.C. had various mental and
physical limitations. She was forgetful and often confused.
The victim could not process basic information such as the
date, time, or season. She was unable to take care of herself
without assistance or to manage her financial affairs. She
needed assistance with personal hygiene, dressing, cooking,
and cleaning. Although she was able to hold a conversation,
she would usually forget that it had occurred. In addition,
A.C. had difficulty conversing; her speech was garbled and
sometimes she could not understand simple phrases.
beginning of the appellant's placement with the victim,
M.B. met with her. M.B. explained the duties of the job to
the appellant, including the extent of A.C's physical and
mental needs. The appellant was expected as "a part of
the job" to use the victim's debit card "when
[she] took [the victim] out." M.B. relied on the
appellant to take A.C. shopping and help her make purchases
with the debit card. A.C. often forgot the personal
identification number (PIN) and was not dexterous enough to
type it on the keypad. Consequently, M.B. provided the
appellant with A.C.'s PIN and expected the appellant to
enter the PIN if the store required it. In addition, A.C. was
prone to dropping the card or "forget[ting] to put it
back in her purse, " so the appellant was responsible
for "making sure it went back in her purse." All
receipts for purchases were to be placed in an envelope that
M.B. monitored on a regular basis. M.B. told the appellant
that she could use the debit card only for A.C.'s
expenses. M.B. also told the appellant that she was not to
use the card for herself or to withdraw cash for her own
May 2014, M.B. noticed that two cash withdrawals in the
amount of $300 each had been made at automated teller
machines (ATMs) that month using the victim's debit card.
M.B. did not receive receipts for the cash withdrawals.
Footage from a surveillance camera at one of the ATMs showed
the appellant making the withdrawal on May 25, 2014.
law enforcement contacted the appellant's supervisor, she
telephoned the appellant and told her that her schedule was
going to be changed. The supervisor did not confront the
appellant about the allegations related to the ATM
withdrawals. Without prompting, the appellant suggested that
a person named "Peggy had dressed up like her" and
"was trying to get her in trouble." Peggy Robinson,
an employee of A Heart for You who also provided care for the
victim, did not physically resemble the appellant. Of
A.C.'s caregivers in May 2014, only the appellant and
Robinson had access to A.C.'s debit card.
Commonwealth charged the appellant with financial
exploitation of a mentally incapacitated person, in violation
of Code § 18.2-178.1, and credit card fraud, in
violation of Code § 18.2-195. The appellant argued in
her motion to strike at trial that the Commonwealth had not
proved that the victim was mentally incapacitated. She also
contended that she had permission to possess the debit card
and that A.C. may have told her to withdraw the money.
trial court found the appellant guilty of both charges. In
doing so, the court concluded that it was "abundantly
clear that [the victim] is mentally incapacitated" and
that there was "no question" that she "suffers
from mental incapacity within the meaning of the
statute." The appellant was sentenced to ...