Cheatham v. Com.

• Decision Date: 14 October 1974
• Parties: Joseph CHEATHAM v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

Page 760

208 S.E.2d 760

215 Va. 286

Joseph CHEATHAM v. COMMONWEALTH of Virginia.

Supreme Court of Virginia.

Oct. 14, 1974.

C. Thomas Mustian, John Dirffie Tyler, Richmond (Edward E. Lane & Associates, Richmond, on brief), for plaintiff in error.

Gilbert W. Haith, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., on brief), for defendant in error.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

COCHRAN, Justice.

Joseph Cheatham was tried by the court, sitting without a jury, and found guilty of credit card theft. His punishment was fixed at confinement for three years in the penitentiary, with two years suspended on good behavior. We granted Cheatham a writ of error to the judgment order.

The sole question for our determination is whether the evidence, which is uncontradicted, is sufficient to support Cheatham's conviction.

On July 9, 1973, Mrs. Jane Brooks was robbed at gun point in her home in Richmond by two men. Among the items taken was Mrs. Brooks's wallet, which contained a BankAmericard credit card issued by First National Exchange Bank of Virginia, Roanoke, Virginia, to Carlton P. Brooks, III, Mrs. Brooks's husband. Mrs. Brooks testified that the credit card had been signed by her and that it was in her wallet at the time of the robbery. She did not attempt to identify Cheatham as one of the robbers.

Eleven days after the robbery, Detective G. C. Robinson, Jr., of the Richmond Police Department, arrested Cheatham, an escapee from Hanover County. The arrest, unrelated to the Brooks robbery, was made when the officer found Cheatham sitting on the porch of a house on Claiborne Street in Richmond. However, while searching Cheatham, Robinson discovered Mrs. Brooks's credit card and a Social Security card not issued in Cheatham's name. The credit card was not in a wallet but was loose in Cheatham's right rear pocket. Officer Robinson thereupon also arrested Cheatham 'for this card,' the warrant subsequently issued charging that Cheatham unlawfully and feloniously had 'in his possession a stolen BankAmericard property of Carlton P. Brooks, III.'

Cheatham was tried under an indictment that charged him with obtaining and withholding the described credit card 'with intent to use the same for his own benefit with the intent to cheat and defraud,' in violation of Code §§ 18.1--125.3 and 18.1--125.6.

Officer Robinson testified that Cheatham told him that he had found the credit card in the 1600 block of Jacqueline Street in Richmond and that a 'lady had told him that the card was 'hot' or not to take it something to that extent.' The officer could not recall whether Cheatham said how long it had been since he had found the card, but Robinson admitted that Cheatham said that 'he was going to put the card in the mailbox.' The credit card, admitted into evidence, contains no signature.

Cheatham's motion to strike the Commonwealth's evidence for insufficiency was overruled. No evidence was adduced on behalf of Cheatham. The trial court found Cheatham guilty 'of Credit Card Theft as charged in the indictment.'

Code § 18.1--125.3 (Cum.Supp.1974) provides that a person is guilty of credit card theft when:

'(a) He takes, obtains or withholds a credit card from the person, possession, custody or control of another without the cardholder's consent or who (sic), with knowledge that it has been so taken, obtained, or withheld, receives the credit card with intent to use it or to sell it, or to transfer it to a person other than the issuer or the cardholder . . ..'

Code § 18.1--125.6, also referred to in the indictment, deals with credit card fraud and is not relevant.

The facts in this case are somewhat similar to those in Sullivan v. Commonwealth, 210 Va. 201, 169 S.E.2d 577 (1969). There, we affirmed his conviction of burglary where Sullivan was found in possession of a credit card stolen in the burglary almost three months earlier. We held that the evidence warranted an inference that the breaking and entering and theft were committed at the same time by the same person and as a part of the same transaction, so that the exclusive possession of the recently stolen card, unexplained or falsely denied, could properly give rise to the inference that the possessor had committed the burglary. We also held that recency of possession is an issue to be determined by the trier of fact.

We reaffirm the principles approved in Sullivan, but we find that case to be distinguishable from the present case in a significant particular. Cheatham was not charged with the Brooks robbery, and the Commonwealth does not contend that he participated in that crime. Cheatham was charged with the statutory offense of credit card theft for withholding Mrs. Brooks's credit card after it came into his possession.

Cheatham argues that the Commonwealth proved only that he had possession of the credit card and that the inference of guilt from possession of recently stolen goods, unexplained or falsely explained, should not be applied to him because he is entitled to have the credit card theft statute strictly construed. The Commonwealth insists that more than mere possession was proved, that Cheatham was sitting idly on the porch after he had been informed that the credit card was stolen, and that the trier of fact could reasonably have inferred that Cheatham intended to maintain possession, which could constitute 'withholding.' The Commonwealth further contends that proof of...