Gheorghiu v. Com., Record No. 091945.

• Docket Nº: Record No. 091945.
• Citation: 280 Va. 678, 701 S.E.2d 407
• Case Date: November 04, 2010
• Court: Supreme Court 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.

701 S.E.2d 409

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.

280 Va. 681

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,

280 Va. 682

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 card

701 S.E.2d 410

fraud 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 remaining

280 Va. 683

convictions. 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 such

280 Va. 684

other 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 that

701 S.E.2d 411

part 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...