Arrate v. Commonwealth
| Decision Date | 12 February 2019 |
| Docket Number | Record No. 0518-18-2 |
| Parties | ROBERTO BRITO ARRATE v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
UNPUBLISHED
Present: Judges Humphreys, Beales and AtLee
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF CAROLINE COUNTY
Melissa E. Danjczek for appellant.
Rachel L. Yates, Assistant Attorney General (Mark. R. Herring, Attorney General, on brief), for appellee.
Following a bench trial, the Circuit Court of Caroline County ("trial court") found appellant Roberto Brito Arrate guilty of one count of credit card1 forgery, in violation of Code § 18.2-193. On appeal, Brito Arrate assigns numerous errors.2 Because only one assigned error,regarding a variance between the crimes charged in the indictment and the evidence presented at trial, governs our resolution of this case, we do not address the additional assigned errors. See Luginbyhl v. Commonwealth, 48 Va. App. 58, 64 (2006) (en banc) . Because we find that the indictment failed to allege the conduct for which the trial court convicted Brito Arrate, we reverse.
At a Love's Travel Stop in Caroline County, Brito Arrate presented a "Vanilla Mastercard," a prepaid card that can be used like a gift card but is not limited to one store, as payment for his purchase. The manager, Tiffany Sparks, swiped the card and entered the last four digits on the card in response to the card payment system's prompt. The system flagged the card as fraudulent, indicating that the account associated with the card's magnetic strip did not match the numbers listed on the front of the card. Sparks informed Brito Arrate that the card hadbeen designated fraudulent. Brito Arrate asked for the card back but Sparks refused the request. She informed him that she would call the police and could not return the card until they arrived. After hearing that Sparks would call the police, Brito Arrate reached across the counter in an unsuccessful attempt to grab the card. Sparks stepped back and picked up the store phone. Brito Arrate then fled.
Brito Arrate ran outside to a truck parked in the store's lot, stopped there for a moment, and then ran to a nearby fence. Sparks called her assistant manager, and they pursued Brito Arrate. They observed Brito Arrate throw something resembling credit or debit cards over the fence before returning to the truck and driving away. Sparks and the assistant manager were unable to catch him. They searched the spot by the fence and retrieved ten cards. Some were "Vanilla" Mastercards, others "Green Dot" Visas (another brand of pre-paid payment card), and finally, there was one Walmart gift card. Sparks, the assistant manager, and a deputy who arrived on the scene ran the cards through the card payment system. Of the ten, seven came up as fraudulent, and one (the Walmart gift card) could not be processed through that system.
A grand jury returned an indictment3 charging that Brito Arrate "did unlawfully and feloniously commit credit card forgery with intent to defraud a purported issuer, a person or organization providing money, goods, services or anything else of value, or any other person, he falsely makes or falsely embosses a purported credit card, in violation of [Code] § 18.2-193." The indictment's language follows that of Code § 18.2-193(1)(a) regarding "mak[ing]" or "emboss[ing]," but failed to include the remainder of that subsection, which criminalizes"utter[ing] such a [forged] credit card." The indictment also did not include language from subsections (b) or (c) of that statute.4
At trial, Brito Arrate's counsel moved to strike, noting that, inter alia, the Commonwealth failed to prove that he committed the crime charged in the indictment — falsely making or embossing the card. The trial court overruled the motion:
The [C]ode section 18.2-193 is what is specified in the indictment as being the charging section. There's no reference to a specific subsection. And while I agree with [defense counsel] that the language of the indictment deals with making or embossing a credit card, the [C]ode section, itself, deals with making, embossing or uttering such a card, and I find that that covers the allegations in this particular case and the motion to strike is overruled.
The trial court ultimately convicted Brito Arrate and sentenced him to two years in prison, with one year, eleven months, and twenty days suspended for a period of three years. This appeal followed.
Brito Arrate argues that the indictment did not encompass the conduct for which he was convicted. Specifically, the indictment upon which the trial court convicted Brito Arrate chargedhim with credit card forgery by "falsely mak[ing] or falsely emboss[ing] a purported credit card, in violation of [Code] § 18.2-193." The indictment's language includes only a portion of subsection (1)(a) of Code § 18.2-193. Crucially, it omits the language from that subsection most clearly applicable to Brito Arrate's conduct: "or utters such a credit card."
The trial court, in finding Brito Arrate guilty, noted that (Emphasis added.) Furthermore, when overruling Brito Arrate's motion to strike, the trial court relied on the indictment's general citation to Code § 18.2-193, without including a specific subsection, in finding that it included not only making and embossing, but also uttering. Thus, it is clear from the trial court's statements that it found that Brito Arrate was guilty of uttering the forged card (although it did not expressly disclaim that the evidence proved making or embossing).
As a preliminary matter, we must consider the definitions of "uttering" and "making" a credit card.5 Uttering is "an assertion by word or action that a[n instrument] known to be forged is good and valid." Goodwin v. Commonwealth, 64 Va. App. 322, 327 (2015) (quoting Bateman v. Commonwealth, 205 Va. 595, 600 (1964)).
Yet the indictment omitted the phrase "or utters such a credit card," solely charging Brito Arrate with making and embossing. Code § 18.2-193(2) defines making a credit card:
A person falsely makes a credit card when he makes or draws, in whole or in part, a device or instrument which purports to be the credit card of a named issuer but which is not such a credit cardbecause the issuer did not authorize the making or drawing, or alters a credit card which was validly issued.
The Commonwealth responds to the merits of Brito Arrate's assigned error with two arguments. First, it argues that the evidence was sufficient to show that Brito Arrate made the card here. Second, it argues that even if the evidence only proved that Brito Arrate uttered the fraudulent card, the failure to include that language in the indictment nonetheless would not amount to a fatal variance.
First, the Commonwealth claims that it proved Brito Arrate made the forged card. It argues that, because there was a discrepancy between the card number and the magnetic strip, the card must have been altered. Yet aside from Brito Arrate's possession of the card and knowledge that it was fraudulent, there is no evidence indicating that he was responsible for that alteration.
The Commonwealth relies on Fitzgerald v. Commonwealth, 227 Va. 171 (1984), for the proposition that possession of a forged instrument "is prima facie evidence that he either forged the instrument or procured it to be forged." Id. at 174 (emphasis omitted) (quoting Laird v. State, 406 So. 2d 35, 36 (Miss. 1981)). The Court explained in that case that "[s]uch a prima facie showing of guilt does not rise to the level of a conclusive presumption, and it may be rebutted, but it will warrant submission of the issue of guilt of forgery to the jury, and will support a verdict of guilty if the jury so finds." Id.
In Fitzgerald, the defendant was convicted for forgery of paper checks using a typewriter and a pen. The Commonwealth argues that this presumption should extend to credit card forgery. We disagree.
Forging a check and a credit card are not acts requiring equivalent skill or effort. Forging a credit card, at least as the card at issue here was altered, requires specialized equipment andsome technical skill to rewrite the magnetic strip on the back of the card. By contrast, forging a paper check requires nothing more than a pen. Accordingly, the inference presented in Fitzgerald is logical as applied to a check, because a fact-finder can reasonably infer that an average person would understand how to write fraudulent information on a piece of paper. The same cannot be said for credit cards.6
The Commonwealth presented no evidence that Brito Arrate possessed the tools or skill to forge a credit card, and relies solely upon his possession of the fraudulent card as evidence that he made it. Assuming without deciding that the presumption set forth in Fitzgerald does not unequivocally apply to credit card forgery, the evidence presented at trial was inadequate to show that Brito Arrate had "made" (or "embossed") any of the cards. The trial court found as much, expressly stating that Brito Arrate had uttered the card. Brito Arrate's mere possession of the card, and attempt to use it, alone is inadequate to show that he made or embossed the forged card as charged in the indictment.
While the prosecution may have shown that Brito Arrate uttered the fraudulent card when he presented it to the convenience store cashier, the indictment failed to include that language. The Commonwealth nevertheless argues that the trial court correctly determined there was no fatal variance between the indictment and the...
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