Gheorghiu v. Com.

• Decision Date: 04 November 2010
• Docket Number: Record No. 091945.
• Citation: 280 Va. 678,701 S.E.2d 407
• Court: Virginia Supreme Court
• Parties: Mihai GHEORGHIU v. COMMONWEALTH of Virginia.

701 S.E.2d 407

280 Va. 678

Mihai GHEORGHIU

v.COMMONWEALTH of Virginia.

Record No. 091945.

Supreme Court of Virginia.

Nov. 4, 2010.

J. Frederick Sinclair (Jonathan Shapiro, on briefs), for appellant.

Susan M. Harris, Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and LACY, S.J.

Opinion by Senior Justice ELIZABETH B. LACY.

In this appeal Mihai Gheorghiu asks us to reverse his convictions by an Arlington County jury of one count of identity theft, one count of credit card fraud and 36 counts of credit card theft because Arlington County was an improper venue for the prosecutions.

FACTS

The facts in this case are not in dispute. Gheorghiu and his cousin drove from New York City to Alexandria, Virginia, on September 20, 2005. They checked into a hotel in Alexandria using Gheorghiu's personal valid credit card. The next day while still in Alexandria, Gheorghiu attempted to use a credit card containing a number belonging to Iris Keltz to buy a $300 gift card, but was unsuccessful because the number would not go through the system. Gheorghiu and his cousin later went to Fairfax where they purchased a laptop computer using a credit card with a number belonging to Gerald Kent. Throughout the day, Gheorghiu obtained a number of items in Alexandria, Fairfax and Arlington Counties using the credit card numbers belonging to other individuals.

At 4:40 p.m. on September 21, 2005, Arlington County police stopped Gheorghiu's vehicle for speeding. When processing Gheorghiu's information, the officer discovered an outstanding warrant for Gheorghiu's arrest from New Jersey. The officer arrested Gheorghiu,took him into custody, impounded his vehicle and inventoried its contents. Gheorghiu's briefcase, found in the vehicle, contained a laptop computer, a thumb drive, two credit cards and five compact discs. One of the discs contained a program file that allowed the computer to interface with a credit card remagger found in the vehicle and another program file that allowed Gheorghiu to generate numbers to unlawfully unlock the software necessary to use the remagger program.¹ The other four compact discs and the thumb drive contained files with the names and credit card numbers of approximately 100 persons, including those of Keltz and Kent. Twelve credit cards were also recovered. Eleven of the cards had Gheorghiu's name on the front, but only three of these cards had numbers on the front that matched the numbers in the magnetic strip on the back of the card. Documents with Gheorghiu's name and address in New York as well as three new laptop computers and other merchandise were found in the vehicle.

Gheorghiu was indicted and tried in Arlington County upon 57 indictments charging nine counts of identity theft in violation of Code § 18.2-186.3, 36 counts of credit card theft in violation of Code § 18.2-192, eight counts of credit card forgery, in violation of Code § 18.2-193, three counts of credit cardfraud in violation of Code § 18.2-195, and one count of possession of burglarious tools in violation of Code § 18.2-94. Both Keltz and Kent testified that they did not live in Arlington County, did not know Gheorghiu, and did not give him permission to use their credit card numbers. Detective Dan Gillenwater, a computer forensics investigator, testified that a computer program file on Gheorghiu's laptop computer was accessed on September 21 at approximately 8:00 a.m. That file interfaced the computer with a remagger, but Gillenwater could not determine who accessed the computer file, who remagged the stolen numbers onto the credit cards, or where the laptop computer was located when those tasks were performed. The trial court dismissed four of the identity theft counts for lack of evidence and entered judgment on the guilty verdicts returned by the jury on all remaining counts.

Gheorghiu appealed to the Court of Appeals. In a published opinion, the Court of Appeals reversed and dismissed Gheorghiu's conviction of possession of burglarious tools, and affirmed the remainingconvictions. Gheorghiu v. Commonwealth, 54 Va.App. 645, 682 S.E.2d 50 (2009). The Court of Appeals held, among other things, that Gheorghiu's claim of improper venue relating to the 36 credit card theft charges was procedurally barred, that identity theft is a continuing offense and thus venue for the identity theft charge relating to Keltz' credit card number, case number CR05-1243, was proper in Arlington County pursuant to Code § 18.2-186.3(D) because Gheorghiu possessed the identifying information in that county, and that possession of Kent's credit card number in Arlington County was an act in furtherance of credit card fraud satisfying the venue requirements of Code § 18.2-198.1 in case number CR06-449. Gheorghiu filed a timely appeal with this Court.

DISCUSSION

In this appeal, Gheorghiu assigns error to the Court of Appeals' judgment with regard to his convictions in case numbers CR05-1243, identity theft, Code § 18.2-186.3, and CR06-449, credit card fraud, Code § 18.2-195. He asserts that venue was improper in Arlington County for the prosecution of these two charges. In another assignment of error, Gheorghiu asserts that venue was improper for the 36 counts of credit card theft. Gheorghiu acknowledges that no objection was made to venue in the trial court with regard to these counts; nevertheless, Gheorghiu asks us to apply the "for good cause shown" and "ends of justice" exceptions contained in Rule 5:25 and to reverse his convictions for credit card theft based on improper venue.² We will consider these issues in order.

I. Identity Theft

The crime of identity theft is set out in Code § 18.2-186.3. As relevant here, that section makes it unlawful to "[o]btain, record or access identifying information which is not available to the general public that would assist in accessing financial resources, obtaining identification documents, or obtaining benefits of suchother person" without the permission of the owner of the information and with the intent to defraud. Subsection (D) of that section provides, in relevant part, that

In any proceeding brought pursuant to this section, 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.

(Emphasis added). In this case, the evidence established that Keltz lived in New York, not Arlington County. Therefore, to establish venue in Arlington County in case number CR05-1243, theft of Keltz' identifying information, the Commonwealth was required to establish a strong presumption thatpart of the offense took place in Arlington County. Cheng v. Commonwealth, 240 Va. 26, 36, 393 S.E.2d 599, 604 (1990).

The Court of Appeals held that Arlington County was a proper venue in which to prosecute Gheorghiu for the identity theft relating to Keltz because identity theft is a continuing offense, part of which occurred in Arlington County. According to the Court of Appeals, the acts of "recording or accessing an individual's identifying information ... continue after the initial obtaining of the information.... [O]nce an individual's identifying information is stolen, the individual's identity remains stolen by the perpetrator as long as the perpetrator possesses that information with the intent to defraud." 54 Va.App. at 657-58, 682 S.E.2d at 56. As a continuing offense, the Court of Appeals reasoned, the offense continues "until the information is returned to the victim (in such a way that the perpetrator no longer retains it) or the perpetrator's fraudulent intent to use [it] no longer exists." Id. at 660, 682 S.E.2d at 57. In the Court of Appeals' view, "the possession of a victim's identifying information with the intent to defraud the victim is a part of the continuing offense of identity theft." Id. at 664-65, 682 S.E.2d at 59-60. Thus, the Court of Appeals concluded that venue in Arlington County for this charge was proper because Gheorghiu's actions using or attempting to use the credit card numbers of others to obtain goods that day and possession of Keltz' identifying information in Arlington County established a strong presumption that Gheorghiu intended to use Keltz'information in Arlington County to defraud Keltz. Id. at 665-66, 682 S.E.2d at 60.

As the Court of Appeals noted, we have not heretofore considered whether identity theft is a continuing offense for purposes of the venue provisions of Code § 18.2-186.3. We have identified larceny as a continuing offense for venue purposes based on the common law legal fiction that each time the stolen goods are taken into a new jurisdiction, there is an illegal asportation and a new crime is committed, thereby allowing prosecution for the larceny in any jurisdiction to which the goods were taken. Strouther v. Commonwealth, 92 Va. 789, 791, 22 S.E. 852, 852 (1895).³ That analysis however does not apply to the crime at issue here. The legal fiction underlying venue for larceny is based on the creation of a new crime each time asportation to a new jurisdiction occurs. The concept of a continuing offense used by the Court of Appeals, with regard to the crime of identity theft, does not involve the commission of a new crime but of an incomplete crime, which continues as long as the defendant retains the identifying information with the intent to defraud.

A rationale similar to that used by the Court of Appeals in this case was presented to this Court with regard to the nature of the offense of credit card theft. In Meeks v. Commonwealth, 274 Va. 798, 651 S.E.2d 637 (2007), the victim reported her wallet containing credit cards missing while at a group home in Fairfax County. Meeks was at the group home on the same day as the victim. Later that day, Meeks used the...