Brewer v. Commonwealth

• Decision Date: 10 March 2020
• Docket Number: Record No. 1665-18-2
• Citation: 71 Va.App. 585,838 S.E.2d 557
• Parties: Cody W. BREWER v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

71 Va.App. 585

838 S.E.2d 557

Cody W. BREWER

v.COMMONWEALTH of Virginia

Record No. 1665-18-2

Court of Appeals of Virginia, Richmond.

MARCH 10, 2020

Matthew C. Stewart for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Beales and AtLee

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Cody W. Brewer appeals his conviction for computer fraud in violation of Code § 18.2-152.3. He contends that the trial court erred by finding that the evidence was sufficient to prove that he perpetrated a fraud using a "computer or computer network" as defined in Code § 18.2-152.2. We hold that the evidence supports the trial court’s ruling that the appellant’s cellular telephone was a device that falls within the statutory definition of a computer. Consequently, we affirm the appellant’s conviction.

I. BACKGROUND

During 2015 and 2016, the appellant made unauthorized mobile withdrawals from a bank account maintained by his grandmother, Margaret Peade, at a SunTrust Bank in Colonial Heights. Peade, who did not use mobile banking, knew that she had not made the transactions. Additionally, she had not authorized anyone to make them and did not know who had done so.¹ Consequently, she reported the unauthorized transactions to the police.

Sergeant T.E. Johnson of the Colonial Heights Police Department investigated the thefts. Johnson identified the appellant as a suspect and arranged to interview him. The appellant admitted engaging in a series of transactions in which he transferred a total of at least $6,000 from Peade’s SunTrust account to his accounts with Capital One and Amazon. Evidence established that Peade had once written the appellant a personal check, and a search warrant executed at the appellant’s residence produced a voided check from Peade’s account.

The appellant was charged with computer fraud based on the bank transactions. At his trial, Monique Gray of SunTrust Bank testified that she obtained the bank’s records for Peade’s account. Gray noted that the disputed transfers from Peade’s SunTrust account to Capital One were listed as "mobile payments." She testified that this notation meant that the transfers were made using a mobile phone.² According to Gray, payments could also be made from a desktop computer but using this method would have resulted in an entry listing an "online" payment rather than a "mobile" one as in the instant case.

Gray characterized the type of phone required to generate a "mobile payment" entry in Peade’s account records as a mobile "electronic device." She agreed with the prosecutor’s characterization that such a mobile transfer would require "online access" and some form of computer-related device.

Gray further explained that in order for a person to make such a mobile transfer from the SunTrust account, he would have to "download [onto his mobile phone] the app" of the company he intended to be the recipient of the funds, in this case Capital One, and then use the mobile phone to make the payment. She elaborated that the person would need to enter the routing and account numbers for the SunTrust account. She added that this information could be obtained from a check for the account.

Gray was questioned about a specific transaction reflected in Peade’s account records that occurred on October 13, 2015. The transaction was listed as an "electronic[/ACH] debit, Capital One mobile payment." Gray explained that the electronic debit was "money that went out of [Peade’s] account electronically" and was transferred to Capital One "using a mobile device." She characterized the "mobile device" needed as "some sort of computer device."

The appellant testified in his own behalf. He admitted that he had a cellular telephone, specifically an iPhone. He conceded that he downloaded the Capital One "app" onto his phone and used Peade’s SunTrust account information to transfer money from her account to his Capital One account.

At the close of the Commonwealth’s evidence and again at the conclusion of all the evidence, the appellant moved to strike the computer fraud charge. He suggested that the statute does not cover "a mobile payment ... to a credit card [account]" such as his Capital One account. The prosecutor replied that making "mobile payments ... on an electronic device such as a smart phone," which requires "access[ing]" the Internet and putting "certain identifying ... private information" into "the mobile app using the Internet," is behavior proscribed by the computer fraud statute.

The trial court denied the motions. It ruled in pertinent part that "a mobile device such as a smart phone, ... loaded with an app that permits electronic banking, specifically funds ... withdrawn from Sun Trust[ and] deposited into Capital One," was "functionally ... a computer or computer network" for purposes of the statute.

The court convicted the appellant of computer fraud and sentenced him to ten years for that offense, with all of that time suspended.³

II. ANALYSIS

The appellant challenges the sufficiency of the evidence to prove that he committed computer fraud as proscribed by Code § 18.2-152.3. His argument is limited to the claim that the cellular telephone with which he transferred his grandmother’s funds was not a "computer" under the applicable statutory definition.

A. Standard of Review

In determining whether the evidence was sufficient to support a criminal conviction, the appellate court views the facts in the "light most favorable" to the Commonwealth. See Moter v. Commonwealth, 61 Va. App. 471, 473, 737 S.E.2d 538 (2013) (quoting Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781 (2003) ). In conducting this review, the Court defers to the trial court’s findings of fact unless they are plainly wrong or without evidence to support them. See Ramsey v. Commonwealth, 65 Va. App. 694, 697, 780 S.E.2d 624 (2015). "These principles apply ‘with equal force’ to bench trials no differently than to jury trials." Commonwealth v. Moseley, 293 Va. 455, 463, 799 S.E.2d 683 (2017) (quoting Vasquez v. Commonwealth, 291 Va. 232, 249, 781 S.E.2d 920 (2016) ).

However, as applicable in this case, to the extent that the issue on appeal requires the Court to determine the meaning of a statute and its terms, it reviews that issue de novo . See Barson v. Commonwealth, 284 Va. 67, 71-72, 726 S.E.2d 292 (2012) ; Miller v. Commonwealth, 64 Va. App. 527, 537, 769 S.E.2d 706 (2015). Although criminal statutes are to be strictly construed against the Commonwealth, the appellate court must also "give reasonable effect to the words used" in a statute. Johnson v. Commonwealth, 37 Va. App. 634, 639, 561 S.E.2d 1 (2002) (quoting Dillard v. Commonwealth, 28 Va. App. 340, 344, 504 S.E.2d 411 (1998) ). Further when interpreting a statute, the Court " ‘presume[s] that the legislature chose, with care, the words it use[d]’ when it enact[ed the] statute." Rives v. Commonwealth, 284 Va. 1, 3, 726 S.E.2d 248 (2012) (first alteration in original) (quoting Zinone v. Lee’s Crossing Homeowners Ass’n, 282 Va. 330, 337, 714 S.E.2d 922 (2011) ). Consequently, if the language in a statute is "plain and unambiguous, we are bound by [its] plain meaning." Tisdale v. Commonwealth, 65 Va. App. 478, 484, 778 S.E.2d 554 (2015) (quoting Lee Cty. v. Town of St. Charles, 264 Va. 344, 348, 568 S.E.2d 680 (2002) ).

It is under these well-established legal standards that the appellant’s assignment of error is reviewed on appeal.

B. The Statutory Scheme

Under the Virginia Computer Crimes Act (the Act), "[a]ny person who uses a computer ... without authority and ... [c]onverts the property of another[ ] is guilty of the crime of computer fraud." Code §§ 18.2-152.1, -152.3. The Act specifically defines a computer as "a device that accepts information in digital or similar form and manipulates it for a result based on a sequence of instructions." Code § 18.2-152.2. It expressly excludes from the definition "simple calculators, automated typewriters, facsimile machines, or any other specialized computing devices that are preprogrammed to perform a narrow range of functions with minimal end-user or operator intervention and are dedicated to a specific task." Id.

C. The Appellant’s Smart Phone as a Computer

The appellant suggests that the evidence that he fraudulently transferred money using his cellular telephone was insufficient to prove that he "use[d] a computer" as the term "computer" is defined in Code § 18.2-152.2.

The Act defines the term "computer" broadly. See Code § 18.2-152.2. The definition covers all "device[s]" not specifically excluded "that accept[ ] information in digital or similar form and manipulate[ ] it for a result based on a sequence of instructions." See id. Devices specifically excluded are very basic ones "dedicated to a specific task" and requiring "minimal end-user or operator intervention," such as simple calculators, automated typewriters, and fax machines. See id. Cellular phones are not listed among the excluded devices. See id.

As early as 2014, the United States Supreme Court recognized cellular telephones as devices that contain vast amounts of digital data. See Riley v. California, 573 U.S. 373, 394-96, 134 S.Ct. 2473, 2489-91, 189 L.Ed.2d 430 (2014) ("[I]it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives ...."). It has further noted that a "smart phone" is "a cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectivity." Id. at 379, 134 S.Ct. at 2480 ; see id. at 394, 134 S.Ct. at 2489 (recognizing that "[e]ven the most basic phones that sell for less than $20 might hold ... Internet browsing history ... and so on"); see also Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment...