Gheorghiu v. Com.

• Decision Date: 20 January 2009
• Docket Number: Record No. 0801-07-4.
• Citation: 53 Va. App. 288,671 S.E.2d 407
• Parties: Mihai GHEORGHIU v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

671 S.E.2d 407

53 Va. App. 288

Mihai GHEORGHIU v. COMMONWEALTH of Virginia.

Record No. 0801-07-4.

Court of Appeals of Virginia, Alexandria.

January 20, 2009.

Jonathan Shapiro, J. Frederick Sinclair, Alexandria, for appellant.

Susan M. Harris, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HUMPHREYS, HALEY and BEALES, JJ.

BEALES, Judge.

An Arlington County jury convicted Mihai Gheorghiu (appellant) of thirty-six counts of credit card theft, in violation of Code § 18.2-192 (case numbers CR05-1231 through CR05-1240, CR06-453 through CR06-469, and CR06-752 through CR06-760); eight counts of credit card forgery, in violation of Code § 18.2-193 (case numbers CR06-441 through CR06-448); five counts of identity theft, in violation of Code § 18.2-186.3 (case numbers CR05-1241 through CR05-1243 and CR05-1247 through CR05-1248); three counts of credit card fraud, in violation of Code § 18.2-195 (case numbers CR06-449, CR06-451, and CR06-452); and one count of possession of burglarious tools, in violation of Code § 18.2-94 (case number CR06-440). Appellant challenges these convictions on several grounds addressed below. For the following reasons, we affirm in part and dismiss in part.

I. BACKGROUND

"On appeal, `we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987)); see Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004) (viewing the evidence in the light most favorable to the Commonwealth, "as we must since it was the prevailing party in the trial court").

So viewed, the evidence proved that appellant and his cousin traveled in a Chevrolet Trailblazer from New York City to the Northern Virginia area on September 20, 2005. Using his own credit card, appellant paid for a meal in Arlington County and for a hotel room in the City of Alexandria on the night of September 20. Appellant and his cousin checked out of the hotel before noon on September 21, 2005.

At approximately 8:00 a.m. on September 21, appellant accessed a program file on his laptop computer, interfacing the computer with a "remagger," a device that enables a person to read and write data to the magnetic strip on the back of a plastic card. It is unknown where appellant was when he accessed this program file. Throughout the day, appellant attempted to use stolen credit card numbers to purchase goods and services in Alexandria, Arlington, and Fairfax County, and some of these attempts were successful.

After 4:00 p.m. on September 21, appellant was stopped for speeding in Arlington County. The police officer discovered that appellant had an outstanding warrant in New Jersey and took appellant into custody. Appellant's cousin was permitted to leave on foot. A search of the Trailblazer yielded appellant's laptop, a thumb drive, and five compact discs, all of which contained stolen credit card information. In total, appellant possessed approximately 100 stolen credit card names and numbers. In addition, twelve credit cards were found in the vehicle, eleven with appellant's name on them, but only three cards had numbers encoded on the magnetic strip that matched the engraved number on the front of the credit card.

During appellant's pretrial detention, the authorities recorded several phone conversations, mostly in Romanian, apparently discussing credit card fraud and credit card theft. Concerned about ongoing criminal activity, the authorities searched appellant's jail cell and retrieved "foreign language stuff" and credit card sheets. The authorities attempted to avoid disturbing papers with the letterhead of appellant's attorneys, but appellant claimed that the seized materials written in Romanian related to an ongoing federal investigation. Appellant claimed that he sought to negotiate a "global settlement" through his assistance with that investigation. Appellant acknowledged that this information was "not specific to the charges in Arlington County." After a hearing, the trial court rejected appellant's claims of Fourth and Sixth Amendment violations with respect to the warrantless jail cell search and seizure.

At trial, appellant argued that venue was improper on a number of charges, that the possession of burglarious tools charge should have been stricken, and that the Commonwealth presented insufficient proof that appellant, rather than his cousin, was the perpetrator of the offenses.¹ The trial court rejected these arguments, and the jury convicted appellant of the aforementioned offenses.

II. THE NOTICE OF APPEAL

Rule 5A:6 provides, in pertinent part, that "[n]o appeal shall be allowed unless, within 30 days after entry of final judgment or other appealable order or decree, counsel files with the clerk of the trial court a notice of appeal." Rule 5A:3 establishes that the time prescribed by Rule 5A:6 is mandatory unless an appropriate request for an extension is granted. The failure to file a notice of appeal with the clerk of the trial court within thirty days after entry of a final order as required in Rule 5A:6(a) is a jurisdictional defect. See Johnson v. Commonwealth, 1 Va.App. 510, 512, 339 S.E.2d 919, 920 (1986).

Here, the trial court entered the final orders on March 9, 2007. Appellant filed a notice of appeal on April 5, 2007; however, this initial notice of appeal referenced only cases CR05-1230 through CR05-1249.² Thus, appellant timely filed a notice of appeal for only those cases. On April 13, 2007, more than thirty days after entry of the final orders, appellant filed an amended notice of appeal, listing additional case numbers.

"As a general rule, insubstantial defects in a timely filed appeal `should not be fatal where no genuine doubt exists about who is appealing, from what judgment, to which appellate court.'" Christian v. Va Dep't of Soc. Servs., 45 Va.App. 310, 315, 610 S.E.2d 870, 872 (2005) (emphasis added) (quoting Becker v. Montgomery, 532 U.S. 757, 767-68, 121 S.Ct. 1801, 1808, 149 L.Ed.2d 983 (2001)). Appellant claims that he intended to appeal all the convictions when he filed his initial, timely notice of appeal, but the document did not clearly notice this intention. See Smith v. Barry, 502 U.S. 244, 248, 112 S.Ct. 678, 682, 116 L.Ed.2d 678 (1992) ("[T]he notice afforded by a document, not the litigant's motivation in filing it, determines the document's sufficiency as a notice of appeal."). Appellant's subsequent filing of an amended notice of appeal and his petition for appeal, which fully briefed issues relating to all of the convictions, failed to cure the defect in appellant's timely notice of appeal, as those documents were filed outside of the jurisdictional thirty-day period.

Accordingly, we cannot address the issues raised in relation to case numbers CR06-440 through CR06-449, CR06-451 through CR06-469, and CR06-752 through CR06-760, and we dismiss the appeal in relation to those convictions.

III. ANALYSIS

A. VENUE

1. IDENTITY THEFT (CASE NUMBER CR05-1243)

Appellant argues that venue was improper in Arlington County for the prosecution of an indictment for identity theft listing Iris Keltz as the victim. He contends that Meeks v Commonwealth, 274 Va. 798, 651 S.E.2d 637 (2007), controls here and precludes prosecution in the Arlington County courts. We find venue was proper in this case.

"When venue is challenged on appeal, we determine `whether the evidence, when viewed in the light most favorable to the Commonwealth, is sufficient to support the [trial court's] venue findings.'" Morris v. Commonwealth, 51 Va.App. 459, 464-65, 658 S.E.2d 708, 710-11 (2008) (quoting Cheng v. Commonwealth, 240 Va. 26, 36, 393 S.E.2d 599, 604 (1990)). The evidence in relation to venue proved appellant was arrested in Arlington County while he was in possession of Ms. Keltz's credit card number. Ms. Keltz was a resident of the State of New York and had not visited Arlington County. No evidence established that appellant accessed this number or used it in any particular manner while he was in Arlington County, but he continued to possess not only the stolen number while in Arlington but also the remagging device that he utilized to effect these offenses. He attempted to make a purchase using this credit card number at a store in Alexandria.

"Venue depends on the `nature of the crime alleged and the location of the act or acts constituting it.'" Id. at 464, 658 S.E.2d at 711 (quoting United States v. Anderson, 328 U.S. 699, 703, 66 S.Ct. 1213, 1216, 90 L.Ed. 1529 (1946)). For most crimes, venue is proper in the jurisdiction where all the elements of the crime were committed. See Green v. Commonwealth, 32 Va.App. 438, 448, 528 S.E.2d 187, 192 (2000) (finding the Commonwealth must generally establish venue with evidence that supports a strong presumption that all elements of the offense occurred within the selected venue). For prosecution of identity theft, however, the General Assembly enacted a special venue statute, which provides that "the crime shall be considered to have been committed in any locality where the person whose identifying information was appropriated resides, or in which any part of the offense took place, regardless of whether the defendant was ever actually in such locality." Code § 18.2-186.3(D) (emphasis added). Therefore, to satisfy Code § 18.2-186.3(D), the Commonwealth here needed to establish a "strong presumption" that any part of the offense took place in Arlington County. See Green, 32 Va.App. at 448, 528 S.E.2d at 192 (noting that, under the general venue statute, that the Commonwealth must establish a "strong presumption" that all elements of the offense occurred within the selected venue); see also Meeks, 274 Va. at 803, 651 S.E.2d at 639 (construing Code § 18.2-198.1(i), the...