Bryant v. Commonwealth, Record No. 1907-17-4

• Docket Nº: Record No. 1907-17-4
• Citation: 70 Va.App. 697, 832 S.E.2d 48
• Case Date: September 10, 2019
• Court: Court of Appeals of Virginia

70 Va.App. 697
832 S.E.2d 48

Ronnie Leon BRYANT
v.
COMMONWEALTH of Virginia

Record No. 1907-17-4

Court of Appeals of Virginia, Winchester.

SEPTEMBER 10, 2019

Helen Randolph, Assistant Public Defender II, for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys and Russell

OPINION BY JUDGE ROBERT J. HUMPHREYS

70 Va.App. 701

On August 29, 2016, a grand jury for the Circuit Court of Arlington County ("circuit court") indicted appellant Ronnie Leon Bryant ("Bryant") for five felonies and one misdemeanor: four counts of felony credit card theft, in violation of Code § 18.2-192 ; felony credit card fraud, in violation of Code § 18.2-195 ; and misdemeanor identity theft, in violation of Code § 18.2-186.3. Following a bench trial, the circuit court convicted Bryant of all charges and sentenced him to an aggregate sentence of six years’ incarceration.¹

Bryant assigns the following three errors on appeal:

I. The trial court had no subject matter jurisdiction to try the four counts of credit card theft and was without authority to impose punishment for such crimes.

70 Va.App. 702

II. The trial court erred as a matter of law in holding the fraudulent use of credit cards is evidence of theft of the credit cards.

III. The trial court erred in determining that the Commonwealth had proved credit card theft of one of the credit cards, where there [was] insufficient evidence of intent to use the card in violation of the law.

832 S.E.2d 51

I. BACKGROUND

In accordance with familiar principles of appellate review, we recite the facts in the light most favorable to the Commonwealth, the prevailing party at trial. Scott v. Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608 (2016).

Viewed in this light, the evidence reflects that on June 4, 2016, Bryant purchased multiple gift cards at an Arlington County CVS on Jefferson Davis Highway using three credit cards that were not issued in his name. Arlington County police officers subsequently arrested Bryant. At the time of his arrest, police officers discovered four credit cards belonging to a woman named Angelique Mais ("Ms. Mais") on Bryant’s person, including the three credit cards that Bryant used to purchase the gift cards.

On August 29, 2016, a grand jury indicted Bryant for four counts of felony credit card theft, felony credit card fraud, and misdemeanor identity theft. The four counts related to the credit card thefts alleged that

[o]n or about June 4, 2016, in the County of Arlington, did take, obtain, or withhold a credit card or credit card number from the person, possession, custody, or control of another without the cardholder’s consent, or did receive the credit card or credit card number, knowing that it had been so taken, obtained or withheld, with intent to use it or sell it, or to transfer it to a person other than the issuer or the cardholder, to wit a [credit card associated with each charge].

On September 30, 2016, Bryant filed a motion in limine to dismiss the four indictments related to the credit card thefts

70 Va.App. 703

for "lack of venue." Bryant noted that Ms. Mais, a resident of Washington, D.C., testified at the preliminary hearing that she "was last aware of possessing her credit cards ... while at Whole Foods in Silver Spring, Maryland." Accordingly, Bryant argued that the completed crime of credit card theft "did not, and could not, have occurred in Arlington County, Virginia." As a result, Bryant argued that venue in Arlington County was improper and requested that the circuit court dismiss the four indictments related to the credit card thefts.

On October 6, 2016, the circuit court held a hearing on Bryant’s motion. The Commonwealth argued that pursuant to Code § 18.2-198.1, venue for a credit card theft prosecution is appropriate wherever a credit card belonging to another is "used, attempted to be used, or possessed with the intent to use." The Commonwealth added that it met its venue burden because the evidence would reflect that Bryant used three of the four stolen credit cards in his possession at the CVS in Arlington County. Alluding to the fourth credit card that Bryant did not use at the CVS, the Commonwealth argued that the issue of whether Bryant possessed the requisite intent to use that particular stolen credit card in Arlington County remained a question for the fact finder. The circuit court took the matter under advisement pending the presentation of evidence, stating that "the trial judge can strike the case" if the Commonwealth failed to meet its burden in establishing proper venue.

On December 28, 2016, a bench trial took place. There, Alex Rodriguez ("Rodriguez"), the assistant store manager at the Arlington County CVS on Jefferson Davis Highway testified about the events that took place during the evening and early morning hours of June 3-4, 2016. At approximately 11:30 p.m. on June 3, 2016, Rodriguez noticed Bryant walking through the CVS holding a stack of gift cards. Rodriguez then watched Bryant walk to the self-checkout location at the front of the store and purchase five $100 gift cards in separate transactions. Rodriguez testified that the store required any customer purchasing over $500 in gift cards to present identification. With Bryant purchasing each of the $100 gift cards in separate

70 Va.App. 704

transactions, however, the store did not require Bryant to show any identification. Rodriguez called the police after Bryant refused assistance from a cashier and purchased the fourth gift card.

The Commonwealth admitted into evidence both "electronic journal reports" from each of Bryant’s gift card purchases and surveillance footage of Bryant purchasing the gift cards. Rodriguez explained that CVS’s computer system automatically creates electronic

832 S.E.2d 52

journal reports that serve as records of completed customer transactions. The electronic journal reports contain the date, time, and store location of each transaction. The reports also provide information about the checkout lane used and the name of the cashier, or lack thereof, as well as a general description of any items purchased and their cost.

Justin Todd ("Todd"), an organized retail crime manager at CVS, testified for the Commonwealth about additional records of Bryant’s gift card purchases. Notably, Todd testified regarding five point of sale ("POS") transaction reports from June 3, 2016, which were generated from one of CVS’s "internal systems." According to Todd, the internal system "tracks transactions and pretty much anything done on the POS in our stores, company-wide." Todd also explained that the POS transaction reports differ from electronic journal reports in that they provide "a little bit more information, such as credit card information." The Commonwealth admitted the five POS transaction reports into evidence, which reflected Bryant’s five separate gift card purchases utilizing three different credit cards.

Arlington County Police Officer Tyler Bennett ("Officer Bennett") testified that he was dispatched to the CVS on Jefferson Davis Highway the night of June 3, 2016. Just before midnight, as he approached the CVS, Officer Bennett saw a man that he later identified as Bryant standing on a street corner and within eyesight of the CVS. Officer Bennett illuminated Bryant with the spotlight on his police cruiser and proceeded to get out of his vehicle to speak with Bryant.

70 Va.App. 705

When Officer Bennett asked Bryant what he was doing at the CVS, Bryant replied that he purchased five or six, $100 gift cards from the store. Bryant stated that he purchased the gift cards "with a credit card." Bryant proceeded to show Officer Bennett a "golden American Express card" bearing the name "Angelique Mais." When Officer Bennett patted down Bryant, Officer Bennett noticed "what felt like a small stack of ... credit cards" in Bryant’s pocket. Officer Bennett did not remove or ask to see these items during the pat down.

Officer Bennett testified that when he asked Bryant for his name, Bryant stated that his name was "Charles Brown." Bryant stated that his date of birth was May 9, 1964, and also provided Officer Bennett with a social security number. The information that Bryant provided to Officer Bennett produced no results in a national, state, and local law enforcement database. At that point, Officer Bennett testified that he asked Bryant for his social security number a second time. Bryant, however, provided Officer Bennett with a different number. Officer Bennett finally identified Bryant using a mobile fingerprint scanner, which prompted Bryant to provide Officer Bennett with his real date of birth and social security number. A record search of Bryant’s real name revealed that Bryant had an outstanding warrant.

After arresting Bryant on the warrant, Officer Bennett discovered "the gift cards that he appeared to...