Belcher v. Commonwealth

• Decision Date: 27 September 2022
• Docket Number: Record No. 0945-21-3
• Citation: 75 Va.App. 505,878 S.E.2d 19
• Parties: Eva Carol BELCHER v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

75 Va.App. 505

878 S.E.2d 19

Eva Carol BELCHER

v.COMMONWEALTH of Virginia

Record No. 0945-21-3

Court of Appeals of Virginia, Lexington.

September 27, 2022

Joseph A. Sanzone (Sanzone & Baker, L.L.P., on brief), Lynchburg, for appellant.

Justin B. Hill, Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee.

Present: Judges AtLee, Friedman and Raphael

OPINION BY JUDGE FRANK K. FRIEDMAN

These events arise from allegations that Eva Carol Belcher ("appellant") misused her position of trust as a home healthcare provider to obtain goods via identity fraud. Appellant provided care to Charlotte McClain, whose son, James McClain, gave appellant access to his mother's credit card to purchase groceries and anything else Ms. McClain needed. The son later grew suspicious of the purchases that were being made—in addition to groceries, the credit card was used to purchase Kroger and Food Lion gift cards, as well as gift cards to Belk and fast-food restaurants. James McClain eventually contacted the police, fired appellant and other co-workers, and hired a new healthcare team. These charges followed, and a Henry County jury convicted appellant of seven misdemeanor counts and one felony count of identity fraud to obtain money, goods, or services, all in violation of Code § 18.2-186.3. The same jury also acquitted appellant of more than thirty similar charges.

Appellant challenges the sufficiency of the evidence to support her convictions, an evidentiary ruling, and irregularities in the sentencing process.

I. Background ¹

James McClain hired appellant in September 2016 to provide care for his mother, Charlotte McClain. James became Ms. McClain's power of attorney in December 2016 and assumed control over her finances. He gave appellant a credit card ("the credit card") and instructed her to use it to buy anything his mother needed. He did not require appellant to show him receipts for these purchases.

James became suspicious over a year later, in February 2018, after discovering a receipt indicating that the credit card had been used to purchase inexpensive jewelry. After discovering additional suspicious purchases, he fired appellant and the other workers. A grand jury subsequently indicted appellant for identity fraud. The purchases that led to appellant's convictions are as follows:

Indictment CR18-5467 (Misdemeanor)

Appellant worked from 7:00 a.m. until 3:00 p.m. on July 3, 2017. At 4:22 p.m. she used the credit card to purchase a $150 Kroger gift card. At 4:26 p.m., she used that gift card to purchase $69.01 worth of groceries indicative of a July 4th celebration, including Wild Cherry Pepsi, two family-size bags of potato chips, three containers of baked beans, four packages of hot dog buns, two packages of hot dogs, several containers of chili, and potato salad. Ms. McClain testified that she had never had a July 4th cookout, and James was not aware of any such cookout.

Indictment CR18-5483 (Misdemeanor)

On October 4, 2017, appellant worked from 8:00 a.m. until 2:30 p.m. At 6:42 a.m., she used the credit card to purchase a $50 Belk gift card. James and Ms. McClain each testified that they did not authorize appellant to purchase Belk gift cards and had never seen any Belk gift cards.

Indictment CR18-5484 (Misdemeanor)

Appellant did not work on October 28, 2017. At 8:29 p.m. that day, she used the credit card to purchase a $200 Kroger gift card, a $25 Applebee's gift card, and a $15 McDonald's gift card. At 8:57 p.m., she used the newly purchased Kroger gift card to purchase $151.18 worth of groceries. Ms. McClain testified that she did not authorize appellant to purchase Applebee's or McDonald's gift cards and had not seen any.

Indictment CR18-5487 (Misdemeanor)

On November 22, 2017, appellant worked from 7:00 a.m. until 4:00 p.m. At 3:38 p.m. that day, she used the credit card to purchase a $50 Belk gift card and a $200 Kroger gift card. Three minutes later, she purchased $170.57 worth of groceries with the newly purchased Kroger gift card.

Indictment CR18-5488 (Felony)

Appellant did not work on December 2, 2017. However, she made five separate transactions that day. At 8:14 a.m., she used the credit card to purchase a $200 Kroger gift card. One minute later, she purchased four Belk gift cards totaling $150. About an hour and a half later, she purchased three more Belk gift cards totaling $75. She also used Kroger gift cards to make two separate grocery purchases, one for $35.83 and another for $89.17 in groceries.²

Indictment CR18-5491 (Misdemeanor)

Appellant did not work on December 9, 2017. At 11:02 a.m. that day, she purchased $62.32 worth of groceries; she paid using a gift card that had been purchased with the credit card. Among the items purchased was a twenty-four pack of Natural Light beer. Ms. McClain testified that she does not drink beer and did not ask appellant to purchase any. Appellant's husband testified that he drinks Natural Light beer and that appellant would buy it for him in packs of twenty-four. He also testified that he attended a Christmas party at Ms. McClain's house and that she served Natural Light beer.

Indictment CR18-5493 (Misdemeanor)

On December 20, 2017, appellant worked from 7:00 a.m. until 3:00 p.m. At 4:11 p.m., she used the credit card to purchase a $25 Belk gift card.

Indictment CR18-5504 (Misdemeanor)

Finally, appellant did not work on February 11, 2018. In fact, she did not work any day that week (February 11 through 17, 2018). She used the credit card to purchase a $200 Kroger gift card, which she then used to buy $173.18 worth of groceries. James testified that he did not know of any reason appellant would purchase groceries for his mother when she was not working that week.

Appellant Denies Wrongdoing and Offers Explanations for the Disputed Purchases—But Some of the Explanations Prove to be Unpersuasive

Appellant testified that she often shopped for groceries when she was not working because Ms. McClain did not like to shop. She called a defense witness, Sandra Smith, who testified that "a lot of times" appellant would come to Ms. McClain's house on her days off to bring groceries or other food for Ms. McClain. Another defense witness who worked for Ms. McClain testified that she twice saw appellant come to the house outside of her work hours to bring groceries.

Appellant suggested that James wanted her to purchase gift cards from grocery stores "for the church." She also testified that she would purchase Kroger and Food Lion gift cards at Ms. McClain's direction. Sue Rosser, a friend of Ms. McClain, testified regarding the grocery gift cards. She stated that Ms. McClain's church had previously purchased Kroger gift cards at a discount and sold them to parishioners as a fundraiser. That program, however, had ended and purchasing gift cards directly from a store did not result in the church receiving any funds.³

Appellant further testified that Ms. McClain instructed her to purchase gift cards to Belk, McDonald's, and Applebee's to be used as gifts by Ms. McClain. Sandra Smith testified that Ms. McClain provided the workers with "[g]ift [c]ards and different stuff," including a Belk gift card, as game prizes around Christmas.

Appellant denied buying groceries for her own use, and evidence was presented that food and drinks were provided for the workers at Ms. McClain's house and that some of the groceries purchased by appellant were used for luncheons hosted by Ms. McClain. Appellant also testified that all of her "personal transactions" were paid for either with cash or her debit card. However, Special Agent Armstrong with the Virginia State Police testified that appellant was not indicted for "any cash purchases," "any credit card purchases, that did not include [g]ift [c]ards that were during [appellant's] work hours," or any "charges that ... correspond[ed] specifically to any luncheons."

Appellant acknowledged having nine prior "bad check" convictions.

Admission of Testimony from James that Grocery Bills were Lower after Appellant was Fired

At trial, much of the testimony focused on the amounts appellant spent on groceries that she claimed were solely for Ms. McClain's household. The Commonwealth established that James tracked appellant's grocery expenditures. The Commonwealth questioned James extensively on the items appellant purchased without any authorization. The Commonwealth asked James if he continued to track grocery expenditures after appellant was fired and the new team of home caregivers took over. After he replied that he did, the Commonwealth asked, "[h]ow did the spending compare after [appellant] was gone?" At this point, appellant objected, arguing that the answer would be "conclusory" and would confuse the jury. The trial court overruled appellant's objection, and James testified that the grocery expenditures by the new home caregivers "were less."

Sentencing Issues

The jury found appellant guilty of seven misdemeanors and one felony under Code § 18.2-186.3, while acquitting her of over thirty other charges. After the guilt phase of the trial, the trial court issued the following jury instructions for each misdemeanor conviction:

THE COURT INSTRUCTS THE JURY that, having found the defendant guilty of the crime of identity fraud to obtain money, goods, or services the defendant's punishment at:

1. Confinement in jail for a specific time, but not more than twelve (12) months; or

3. [sic] A fine of a specific amount, but not more than $2,500; or

4. Confinement in jail for a specific time, but not more than twelve (12) months, and a fine of a specific amount, but not more than $2,500.

The trial court issued the following instructions for the felony conviction:

THE COURT INSTRUCTS THE JURY that, having found the defendant guilty of the crime of identity fraud to obtain money, goods, or services - $200 or more ... and upon consideration of all the evidence you have heard, you shall fix the defendant's punishment at:

1. A specific term of

...