Scott v. Commonwealth, Record No. 150932

• Citation: 789 S.E.2d 608
• Decision Date: 18 August 2016
• Docket Number: Record No. 150932
• Parties: Artavius Darrell Scott v. Commonwealth of Virginia
• Court: Supreme Court of Virginia

789 S.E.2d 608

Artavius Darrell Scott

v.Commonwealth of Virginia

Record No. 150932

Supreme Court of Virginia.

August 18, 2016

Dorian Dalton, Senior Assistant Public Defender, for appellant.

Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

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

OPINION BY SENIOR JUSTICE CHARLES S. RUSSELL

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 or sell it, or to transfer it to a person other than the issuer or the cardholder ; ....

(Emphasis added.)

Scott argues that the specific intent to use, sell or transfer the card, as expressed by the emphasized words at the end of subsection (1)(a) of the statute, modifies all the preceding language, thus imposing on the Commonwealth the burden of proving that specific intent as an element of any crime charged thereunder. He contends that the evidence was devoid of any proof that he ever intended to use, sell, or transfer the cards to any person other than the cardholder.

The Commonwealth argues that the statute proscribes two separate species of credit card theft: (1) taking, obtaining or withholding a credit card without the consent of the cardholder, and (2) receiving a stolen credit card, knowing that it has been stolen, with the intent to use it, sell it or transfer it to another unauthorized person. This conclusion, the Commonwealth contends, is demonstrated by the legislative use of the disjunctive “or who” in distinguishing between the two species of proscribed conduct. The Commonwealth also relies on the rule of the “last antecedent.” That rule of construction requires that all qualifying words and phrases, where no contrary intention appears, apply only to the last antecedent. Newberry Station Homeowners Ass'n v. Board of Supervisors , 285 Va. 604, 615, 740 S.E.2d 548, 554 (2013)

. The last antecedent is the last word, phrase or clause that can be made an antecedent without impairing the meaning of the sentence. Id.²

Thus, the Commonwealth contends, the words “with intent to ...” apply only to the last antecedent that precedes them: “who, with knowledge that it has been so taken, obtained or withheld, receives the credit card or credit card number.” That interpretation makes the specific intent requirement applicable only to the second prong of the subsection: knowingly receiving a stolen credit card, but not to credit card theft under the first prong: taking, withholding or obtaining a credit card without the cardholder's consent.

Scott relies on language in Wilder v. Commonwealth , 217 Va. 145, 147, 225 S.E.2d 411, 413 (1976)

, suggesting that, under the predecessor statute, former Code § 18.1–125.3,³ the specific intent requirement would apply to all species of conduct proscribed by the statute. Wilder, however, did not involve any issue concerning the defendant's intent. Instead, the sole question before the Court was whether the indictment in that case charged any crime at all. Id. The indictment simply stated that the defendant “did feloniously and unlawfully have in his possession two or more stolen credit cards issued to Mrs. John W. Cowan, against the peace and dignity of the Commonwealth of Virginia.” Id. at 146, 225 S.E.2d at 412. We held that the statute is concerned with the manner in which possession is acquired, but not with possession alone. Id. at 147, 225 S.E.2d at 413. Because possession of a stolen credit card, without more, is not a crime, the indictment was void and not capable of being amended. Id. at 148, 225 S.E.2d at 414. We reversed the conviction on that narrow ground. Id.

In Meeks v. Commonwealth , 274 Va. 798, 651 S.E.2d 637 (2007)

, we were required to determine the point at which credit card theft under the first prong of the subsection was completed. There, the evidence showed that the defendant stole a wallet containing the victim's credit card from a home in Fairfax County and, representing herself to be the victim, used the card later the same day to register at a motel in the City of Alexandria and obtain a cash advance. Id. at 800–01, 651 S.E.2d...