Ballard v. Commonwealth
| Decision Date | 03 May 2016 |
| Docket Number | Record No. 0760-15-1 |
| Court | Virginia Court of Appeals |
| Parties | CHRISTOPHER RAY BALLARD v. COMMONWEALTH OF VIRGINIA |
UNPUBLISHED
Present: Judges Decker, Russell and Senior Judge Felton
Argued at Norfolk, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Afshin Farashahi (Afshin Farashahi, P.C., on brief), for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Christopher Ray Ballard appeals his convictions of credit card theft and credit card fraud, in violation of Code §§ 18.2-10, -95, -192(1)(a), and -195(1)(a).1 He argues that the evidence was insufficient to support the convictions because the Commonwealth did not link him to the specific credit cards at issue. The appellant also contends that the testimony of one of the victims about unauthorized use of her credit card was inadmissible hearsay. We hold that the evidence was sufficient to support the convictions. However, we also hold that the admission of the hearsayevidence was error. For these reasons, we affirm in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
This case arises from a series of separate credit card thefts, two of which were prosecuted in the instant proceeding. One occurred on September 20, 2013, and the other on September 28, 2013. At trial, the Commonwealth presented testimony from each of the victims.
Morgan Wernikowski testified that on September 20, 2013, she parked her gray Mazda in a parking lot by the YMCA near Mount Trashmore in the City of Virginia Beach. When she returned to her car less than three hours later, she found the front window had been broken. A schoolbag containing Wernikowski's wallet and credit card was missing from the vehicle. She testified that, on the day it was stolen, her credit card was used without her permission to make purchases in Virginia Beach at a car wash and a gas station. The first purchase was seventeen dollars, and the second purchase was approximately thirty dollars.2
Kimberly Dial testified that on the morning of September 28, 2013, she parked her blue Honda Odyssey near the Kempsville Recreation Center in Virginia Beach. When Dial returned to the car about ninety minutes later, she discovered the front passenger window had been broken. Her purse, which contained her credit cards, was missing. Dial learned that one of the stolen cards was used on the same day to make three unauthorized purchases and that other transactions had been attempted but were declined. The first purchase was in the amount of $57.62 at a 7-Eleven store on Princess Anne Road in Virginia Beach. A second purchase occurred in the amount of $50.70 at "Jollibee."3 A third unauthorized purchase was made at aCitgo gas station on Holland Road in the amount of $59.11. Dial also testified about two transactions that were attempted but declined, one of which occurred at a 7-Eleven on Holland Road.
Law enforcement obtained surveillance camera video recorded on September 20, 2013, from a 7-Eleven store. The appellant and his brother, Shanon Ballard, appear in the videotape. The police also obtained screen shots taken by the surveillance camera at the Holland Road 7-Eleven store on September 28, 2013. Both the appellant and his brother are identifiable in one photograph, and only the appellant is visible in the second photograph.
Shanon Ballard testified that he and the appellant broke into a gray Mazda in the vicinity of Mount Trashmore on September 20, 2013, and took items from the car. Later that day, he and the appellant used the credit cards that they had stolen from the vehicle to make purchases. Ballard identified himself and the appellant in the September 20, 2013 video from the 7-Eleven store. The appellant's brother said that he and the appellant had made a purchase there using a stolen credit card.
Ballard also testified that he and the appellant broke into a blue van on September 28, 2013, near the Kempsville Recreation Center. They took a purse, which contained credit cards, from the van. Ballard acknowledged that the photographs from the Holland Road 7-Eleven showed him and the appellant attempting to make purchases using the stolen credit cards.
Ballard admitted that he had prior felony convictions. He had entered guilty pleas to offenses relating to the thefts of Wernikowski's and Dial's credit cards. He was awaiting sentencing at the time of the appellant's trial. On cross-examination, defense counsel asked if Ballard ever "gave" the appellant "credit cards," and he responded "[n]o," without any explanation.
Testifying on his own behalf, the appellant admitted that he was with his brother at the time of one of the thefts. However, the appellant stated that he remained in the car and did not know that Ballard had broken into the vehicle. The appellant suggested that Ballard had implicated him in the crimes because Ballard's girlfriend was pregnant and his brother did not want to go back to prison. The appellant also admitted that he had prior felony convictions.
The trial court found the appellant guilty of credit card fraud, two counts of credit card theft, and conspiracy to commit a felony. He was sentenced to a total of forty-seven years.
On appeal, the only convictions being challenged are credit card fraud and the two counts of credit card theft.
The appellant challenges the sufficiency of the evidence to support his convictions for credit card fraud and credit card theft. He also argues that the trial court erred in admitting hearsay testimony from Dial regarding the credit card transactions. We first consider the sufficiency of the evidence because, if the evidence is not sufficient to support the convictions, the case must be reversed and dismissed, and the question relating to hearsay is irrelevant. See, e.g., Timbers v. Commonwealth, 28 Va. App. 187, 202, 503 S.E.2d 233, 240 (1998) (); see also Code § 19.2-324.1 ().
In our review of the sufficiency of the evidence to support a criminal conviction, we consider "the evidence in the light most favorable to the Commonwealth." Kovalaske v.Commonwealth, 56 Va. App. 224, 226, 692 S.E.2d 641, 643 (2010) (quoting Pryor v. Commonwealth, 48 Va. App. 1, 4, 628 S.E.2d 47, 48 (2006)). "Viewing the record through this evidentiary prism 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." Id. (quoting Cooper v. Commonwealth, 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009)). The dispositive question that this Court must resolve is "whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Anaman v. Commonwealth, 64 Va. App. 379, 394, 768 S.E.2d 700, 708 (2015) (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)). We will affirm the conviction unless the fact finder was "plainly wrong" or the conviction lacked "evidence to support it." Kovalaske, 56 Va. App. at 231, 692 S.E.2d at 645 (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)).
Code § 18.2-192(1)(a) provides, in pertinent part, that "[a] person is guilty of credit card or credit card number theft when . . . [h]e takes . . . a credit card or credit card number from the person, possession, custody or control of another without the cardholder's consent." The appellant does not challenge his brother's credibility or the evidence derived from his testimony. He acknowledges that at this juncture we must view the evidence, including the brother's credibility, in the light most favorable to the Commonwealth. See, e.g., Parham v. Commonwealth, 64 Va. App. 560, 565, 770 S.E.2d 204, 207 (2015) (); Tizon v. Commonwealth, 60 Va. App. 1, 12-13, 723 S.E.2d 260, 265 (2012) . The appellant nonetheless contends that the Commonwealth did not prove that the credit cards that his brother testified that they stole were the same cards that were stolen from Wernikowski and Dial.
The appellant is correct that "when the evidence is susceptible to two interpretations, the fact finder cannot arbitrarily adopt the one that incriminates the defendant." Clanton v. Commonwealth, 53 Va. App. 561, 573, 673 S.E.2d 904, 910 (2009). However, "the fact finder's 'determination cannot be overturned as arbitrary unless no rational factfinder would have come to that conclusion.'" Id. (quoting Haskins v. Commonwealth, 44 Va. App. 1, 9, 602 S.E.2d 402, 406 (2004)). Wernikowski testified, describing the theft of her credit cards from her car that occurred on September 20, 2013. Dial likewise recounted the theft from her vehicle that took place on September 28, 2013. The appellant's brother testified specifically about the thefts. His descriptions of the victims' automobiles, the times of the offenses, and the locations of the thefts were consistent with the testimony from Wernikowski and Dial about the thefts of their credit cards. The brother's testimony that he and the appellant took credit cards from the...
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