Wallace v. Commonwealth

Docket Number1040-21-1
Decision Date23 January 2024
CourtVirginia Court of Appeals



Samantha Offutt Thames, Senior Appellate Attorney (Virginia Indigent Defense Commission, on briefs), for appellant.

Stephen J. Sovinsky, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Humphreys, [*] Beales, Huff, O'Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White Argued at Richmond, Virginia



A person who uses a computer for a fraudulent purpose does not automatically use it "without authority" under the computer fraud statute. Under the plain text of Code §§ 18.2-152.2 and -152.3, a defendant commits computer fraud only if they "use[]" a computer without permission or "in a manner knowingly exceeding such right, agreement, or permission," not every time they use a computer to commit an enumerated crime. Following a bench trial, Taylor Amil Wallace was convicted of computer fraud, obtaining money by false pretenses, uttering forged checks, and failing to appear in court, after she deposited forged checks in an ATM. On appeal, Wallace challenged the sufficiency of the evidence for each conviction. A three-judge panel found the evidence sufficient to affirm her convictions on all charges except for four counts of computer fraud. In that regard, the panel found the evidence insufficient to prove that Wallace used the ATM "without authority," with one judge dissenting. Upon the Commonwealth's petition for a rehearing en banc as to the computer fraud charges, this Court finds en banc that the evidence presented at trial failed to prove that Wallace was "without authority" when she accessed her own bank account via an ATM and deposited the checks.


On four different days in December 2018, Wallace used a drive-through ATM at BB&T to deposit four checks into her BB&T bank accounts.[1] The checks were made out from Gregory Starling's Southern Bank account to "Taylor A. Wallace." All four checks were endorsed by "Taylor Wallace." Security camera footage shows Wallace driving to the ATM, sometimes with an unidentified male in the front passenger seat, and depositing the checks. Two of the checks were returned to BB&T as forged. The other two were returned because the Southern Bank account was closed. After recouping its losses from Wallace's bank accounts, BB&T suffered a loss of $937.82. In an interview with police officers in January 2019, Wallace admitted that she was the person depositing the checks and that she did not know Gregory Starling, but she refused to say where she got the checks.

At a bench trial, Wallace testified that she did not steal the checks but received them from her stepfather, Miguel Sumner, who had no bank account and told Wallace that the checks were his paychecks for his demolition and cleaning work. She testified that Sumner was the unidentified male in the passenger seat and that he did not give her the checks until they were at the ATM. She denied having endorsed the checks, claiming that she never looked at the checks because she trusted Sumner. Wallace's mother corroborated Wallace's story, testifying that she dated Sumner during the time Wallace deposited the checks and that Sumner worked in construction.

Starling testified that he did not write the four checks and that they were probably taken from his work truck around December 7, 2018. He stated that, at the time, he worked at a job site and had hired a man, James Watson, and an all-male team for demolition and cleaning work.

At the trial, BB&T investigator, Kevin Wolfe, testified that the ATM was a "very sophisticated machine" and had "a number of different functions," including depositing checks, withdrawing cash, and making balance inquiries. Wolfe stated that an ATM "would be considered a computer."

Wallace was convicted of four counts of uttering a forged check, four counts of obtaining money by false pretenses, four counts of computer fraud, and one count of felony failure to appear, in violation of Code §§ 18.2-152.3, 18.2-172, 18.2-178, and 19.2-128(B). The trial court found Wallace not guilty of forgery or identity fraud. See Code §§ 18.2-172, -186.3(A)(2). The trial court sentenced Wallace to 17 years and 96 months of incarceration, with 13 years and 128 months suspended.

On appeal, Wallace challenged the sufficiency of the evidence for her convictions for computer fraud, uttering, obtaining money by false pretenses, and failure to appear. As to the computer fraud charges, a three-judge panel held that the evidence was insufficient to show that Wallace acted "without authority," with a single judge in dissent. The panel unanimously upheld her convictions for the other charges. The Commonwealth requested, and this Court granted, a rehearing en banc to reconsider the panel's holding solely related to the computer fraud convictions. Once again, we hold that the trial court erred in determining that Wallace was "without authority" when she used the ATM in question to process the four checks.

Accordingly, we reverse the judgment of the trial court as to Wallace's convictions for computer fraud.

A. Standards of Review

In reviewing the sufficiency of the evidence, we consider the evidence "in the light most favorable to the Commonwealth, the prevailing party below." Vay v. Commonwealth, 67 Va.App. 236, 242 (2017) (quoting Smallwood v. Commonwealth, 278 Va. 625, 629 (2009)). In doing so, we "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Bowman v. Commonwealth, 290 Va. 492, 494 (2015) (quoting Kelley v. Commonwealth, 289 Va. 463, 467-68 (2015)).

We defer "to the trial court's findings of fact unless they are plainly wrong or without evidence to support them." Brewer v. Commonwealth, 71 Va.App. 585, 591 (2020). "The fact finder, who has the opportunity to see and hear the witnesses, has the sole responsibility to determine their credibility, the weight to be given their testimony, and the inferences to be drawn from proven facts." Commonwealth v. Taylor, 256 Va. 514, 518 (1998). Furthermore, "[t]he judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict" when reviewed on appeal. Martin v. Commonwealth, 4 Va.App. 438, 443 (1987). Still, "to the extent that the issue on appeal requires the Court to determine the meaning of a statute and its terms, it reviews that issue de novo." Brewer, 71 Va.App. at 591.

B. Statutory Interpretation

Wallace challenges her computer fraud convictions under Code § 18.2-152.3. She argues that, first, she did not use the ATM "without authority," and second, the ATM she used was not a "computer" under the statute. Assuming, without deciding, that the ATM was a computer,[2] we find that the trial court misinterpreted Code § 18.2-152.3 in finding that Wallace used the ATM "without authority."

"When construing a statute, our primary objective is 'to ascertain and give effect to legislative intent,' as expressed by the language used in the statute." Cuccinelli v. Rector, Visitors of the Univ. of Va., 283 Va. 420, 425 (2012) (quoting Commonwealth v. Amerson, 281 Va. 414, 418 (2011)). "When the language of a statute is unambiguous, we are bound by the plain meaning of that language." Id. (quoting Kozmina v. Commonwealth, 281 Va. 347, 349 (2011)). We "presume that the legislature chose, with care, the words it used when it enacted the relevant statute." Zinone v. Lee's Crossing Homeowners Ass'n, 282 Va. 330, 337 (2011) (quoting Addison v. Jurgelsky, 281 Va. 205, 208 (2011)). In addition, "when the General Assembly has used specific language in one instance, but omits that language or uses different language when addressing a similar subject elsewhere in the Code, we must presume that the difference in the choice of language was intentional." Id. Such omission shows "that the General Assembly 'knows how' to include such language in a statute to achieve an intended objective" and unambiguously expressed "a contrary intention." Morgan v. Commonwealth, 301 Va. 476, 482 (2022) (quoting Brown v. Commonwealth, 284 Va. 538, 545 (2012)). Finally, when a statute is ambiguous, "the rule of lenity [directs] us to adopt a narrow construction, thus reducing exposure to criminal liability." Fitzgerald v. Loudoun Cnty. Sheriff's Off., 289 Va. 499, 508 (2015).

1. The plain language of Code §§ 18.2-152.2 and -152.3 means that a defendant must "use[]" a computer "without authority."

Under the Virginia Computer Crimes Act ("VCCA") "[a]ny person who uses a computer or computer network, without authority" and "[o]btains property or services by false pretenses," "[e]mbezzles or commits larceny," or "[c]onverts the property of another" is guilty of computer fraud. Code § 18.2-152.3. Under the VCCA, "[a] person is 'without authority' when he knows or reasonably should know that he has no right, agreement, or permission or acts in a manner knowingly exceeding such right, agreement, or permission." Code § 18.2-152.2.

Preventing unauthorized access to computers is a primary purpose of computer crime laws. The federal government and all fifty states have "enacted computer crime laws that prohibit 'unauthorized access' to computers." Orin S Kerr, Cybercrime's Scope: Interpreting "Access" and "Authorization" in Computer Misuse Statutes, 78 N.Y.U. L. Rev. 1596, 1596 (2003); see also Susan W. Brenner, State Cybercrime Legislation...

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