The Debit Card, the Boyfriend and Fraud

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After a judge found Timothy Dakota Bond “guilty of credit card fraud, in violation of” Virginia Code § 18.2–195 and sentenced him “to ten years of imprisonment (with nine years suspended)”, Bond appealed.  Bond v. Commonwealth, 2014 WL 113531 (Virginia Court of Appeals 2014).  

 In a footnote, the Court of Appeals explains that Bond was “also convicted of credit card theft, in violation of” Virginia Code § 18.2–192, but he did not appeal that conviction.  Bond v. Commonwealth, supra.

This, according to the opinion, is how the prosecution arose:

At the time of the events giving rise to this appeal, [Bond] lived with his girlfriend (Jackie) and Jackie's parents. At trial, Jackie's father (the victim) testified that sometime between July 2, 2012 and July 18, 2012, his wife asked him if he had been using their joint debit card. The victim had not been using the debit card.

The victim attempted to access the account online, but could not do so since the password had been changed. Therefore, the victim went to the bank, asked the bank to reset the password, and discovered that the account was approximately $700 to $800 overdrawn.

After discovering that the account was overdrawn, the victim and his wife realized the debit card was missing. They searched for the debit card, but could not find it. The following day, the victim and his wife noticed the deficit in their account had increased.  [Bond] had twice denied taking the debit card, but ultimately confessed that he had, in fact, taken the card.

The victim testified [at Bond’s trial] that, on the Friday of the week that the card had gone missing, [Bond] `looked at me and said, Jackie had nothing to do with it . . . I took the card, it's under the bed.’  Right after [he] made this admission, the victim looked under the bed and found the card. According to the victim, the card had not been under the bed the previous day. Neither the victim nor the victim's wife had given [Bond] permission to use the card.

Bond v. Commonwealth, supra.  At trial, Jackie’s father testified that “`well over $1,000’} was taken from the account.  Bond v. Commonwealth, supra. 

In his appeal, Bond made two arguments as to why his credit fraud conviction should be reversed:  He argued that the “evidence was insufficient to support the credit card fraud conviction because `there was no direct evidence that the card was ever actually used, let alone that [he] used the card.’” Bond v. Commonwealth, supra.  Bond also argued that “the trial court erred by shifting the burden of persuasion to [him] to prove he did not use the debit card.”  Bond v. Commonwealth, supra.   

The Court of Appeals began its analysis of Bond’s arguments by noting that

[w]hen considering the sufficiency of the evidence on appeal, `a reviewing court does not “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.”’ Crowder v. Commonwealth, 41 Va.App. 658, 588 S.E.2d 384 (Virginia Court of Appeals 2003) (quoting Jackson v. Virginia, 443 U.S. 307 (1979)).

`Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court,’ Rine v. Commonwealth, 268 Va. 296, 601 S.E.2d at 555 (Virginia Supreme Court 2004), `[w]e must instead ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ Crowder v. Commonwealth, supra (quoting Kelly v. Commonwealth, 41 Va.App. 250, 584 S.E.2d 444 (Virginia Court of Appeals 2003).

Bond v. Commonwealth, supra (emphasis in the original).   

It also noted that the credit card fraud statute makes it a crime

when, with intent to defraud any person, [the perpetrator]: Uses for the purpose of obtaining money, goods, services, or anything else of value a credit card or credit card number obtained or retained in violation of § 18.2–192 or a credit card or credit card number which he knows is expired or revoked.

Bond v. Commonwealth, supra (emphasis in the original).  The Court of Appeals also explained that the card

at issue in this case was a debit card, rather than a credit card. However, debit cards are included within the ambit of [Virginia] Code § 18.2–195. See [Virginia] Code § 18.2–191 (defining `credit card,’ which, `[f]or the purpose of this article . . . shall also include a similar device, whether knows as a debit card, or any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services or anything else of value by charging the account of the cardholder in obtaining money, goods, services, or anything else of value by charging the account of the cardholder with a bank or any other person even though no credit is thereby extended’).  

Bond v. Commonwealth, supra (emphasis in the original).  

The court then examined the evidence presented at trial and found that it was, under the standard outlined above, sufficient to support Bond’s conviction: 

Viewing the evidence in the light most favorable to the Commonwealth (as we must since it was the prevailing party at trial), a rational trier of fact could find that [Bond] actually used the debit card.

In a circumstantial evidence case, such as this one, the `combined force of many concurrent and related circumstances, each insufficient in itself, may lead a reasonable mind irresistibly to a conclusion.’ Dowden v. Commonwealth, 260 Va. 459, 536 S.E.2d 437 (Virginia Supreme Court 2000). Here, the combined force of several circumstances in the record suggests that a finder of fact reasonably could have found [Bond] guilty of credit card fraud.

First, [Bond] twice denied taking the debit card. See Covil v. Commonwealth, 268 Va. 692, 604 S.E.2d 79 (Virginia Supreme Court 2004) (noting that `[a] false or evasive account is a circumstance, similar to flight from a crime scene, that a fact-finder may properly consider as evidence of guilty knowledge’).

Second, after the two false denials, [he] finally admitted knowing what had happened to the missing debit card, stating, `Jackie had nothing to do with it . . . I took the card, it's under the bed.’

Third, around the time the victim noticed the debit card was missing, the account balance was decreasing. Fourth, the password to the online account had been changed around the time the card went missing and the balance began decreasing.

Finally, the victim found the card in the spot where [Bond] said he could find the card -- in a location where the victim testified the card had not been the previous day.

By [Bond’s] own admission, Jackie, the only other person in the household who did not have authority to use the debit card, `had nothing to do with it.’ Given the totality of the circumstances in the record, a rational trier of fact could infer from the statement `Jackie had nothing to do with it’ that Jackie neither took nor used the debit card.

Thus, [Bond’s] own words and confessed actions eliminate the possibility that anyone in the household other than [him] could have used the debit card in a fraudulent manner.

Bond v. Commonwealth, supra (emphasis in the original).  

The court therefore found that “viewing the evidence in the light most favorable to the Commonwealth (as we must since the Commonwealth prevailed below), a rational trier of fact could determine that the evidence was sufficient to convict [Bond] of credit card fraud.” Bond v. Commonwealth, supra.

The Court of Appeals then took up Bond’s other argument, i.e., that “the trial court erred by shifting the burden of persuasion to [him] to prove he did not use the debit card.”  Bond v. Commonwealth, supra.  After the prosecution had introduced its evidence and rested, Bond’s lawyer moved to strike all of its evidence, arguing that there was

no proof of actual use of the debit card by [Bond]. The trial court asked [Bond’s] counsel, `[w]hy else do you take a credit card, if you're not going to use it . . . [a]nd there's money missing from the account . . .  how else does it get out if he doesn't use the card when he takes it?’

[Bond’s] counsel responded, `Your Honor, essentially what you're saying is that he has to prove he's innocent.’ In response to that statement, the trial court said, once again, that it was drawing a reasonable inference, and analogized the situation to the permissive inference that a person in possession of recently stolen goods is the thief.

Bond v. Commonwealth, supra.

On appeal, Bond argued that “the trial court impermissibly shifted the burden of persuasion to [Bond] and required [him] to show that he did not actually use the card that he took.”  Bond v. Commonwealth, supra.  The Court of Appeals did not agree:

The record is simply devoid of any indication that the trial court impermissibly shifted the burden to [Bond] to prove that he did not take the debit card.

Indeed, the trial court simply made an inference that [Bond] used the card after taking it based on the following facts: (1) [he] denied taking the debit card, (2) [he] later admitted to taking the debit card, (3) [he] said that `Jackie had nothing to do with it,’ (4) the password to the account had been changed, and (5) the account was overdrawn around the time the card went missing and the password was changed.

The decisions of the Supreme Court of Virginia plainly hold that the deference accorded to the factfinder `applies not only to findings of fact, but also to any reasonable and justified inferences the fact-finder may have drawn from the facts proved.’ Sullivan v. Commonwealth, 280 Va. 672, 701 S.E.2d 61 (Virginia Supreme Court 2010). Drawing reasonable inferences from the evidence, the trial court rejected appellant's hypothesis of innocence, as it was entitled to do. See Clanton v. Commonwealth, 53 Va.App. 561, 673 S.E.2d 904 (Virginia Supreme Court 2009). A trial court does not shift the burden of persuasion to the defendant simply because it rejects the defendant's hypothesis of innocence.

Bond v. Commonwealth, supra.

The Court of Appeals therefore affirmed Bond’s conviction on credit card fraud.  Bond v. Commonwealth, supra.  It also found that the trial judge erred in sentencing him to ten years in prison (with nine suspended) because the credit card fraud statute only authorizes a judge to sentence someone to “`a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.’” Bond v. Commonwealth, supra (quoting Virginia Code § 18.2-10(f)).