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White v. Commonwealth

Court of Appeals of Virginia

December 5, 2017

RAYMEKA MONIQUE WHITE
v.
COMMONWEALTH OF VIRGINIA

         FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Melvin R. Hughes, Jr., Judge Designate

          Lauren 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

          OPINION

          MARLA GRAFF DECKER JUDGE

         Raymeka 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 convictions.

         I. BACKGROUND[1]

         In 2003, the victim, A.C., [2] 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.

         In 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.

         At the 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 benefit.

         In late 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.

         After 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.

         The 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.

         The 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 ...


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