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SYKES v. COMMONWEALTH OF VIRGINIA


SYKES v. COMMONWEALTH OF
VIRGINIA


MARCH 31, 1998
Record No. 0012-97-2

STEVEN LAWRENCE SYKES

v.

COMMONWEALTH OF VIRGINIA

OPINION BY CHIEF JUDGE JOHANNA L. FITZPATRICK
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY

Present: Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia
Paul M. Peatross, Jr., Judge

(Willis J. Spaulding, on brief), for appellant. Appellant
submitting on brief.

Thomas D. Bagwell, Senior Assistant Attorney General (Richard
Cullen, Attorney General, on brief), for appellee.


Steven Lawrence Sykes (appellant) was convicted in a bench
trial of credit card theft in violation of Code ? 18.2?192. On appeal,
he contends the trial court erred in finding that the gas card he
used was a credit card within the meaning of Code ? 18.2?192 and that
his conduct violated the statute. For the following reasons, we
reverse and remand.

I.

The facts are not in dispute. While appellant was a student at
the University of Virginia, he worked for pay and as a volunteer
for the University escort service. As a part of his employment,
he had permission to use a University "gas card" to
obtain gas for the University escort van. Appellant admitted to
using the gas card to obtain gas for his own vehicle on seven
occasions.

The gas card had a magnetic strip on it which, when inserted
into a University motor pool gas pump, allowed a person to
dispense gas and created a record of the amount extracted. The
card enabled the University to audit the internal distribution of
gasoline among its employees, allocate funds among its
departments, and detect misuse of gasoline.

At the conclusion of the Commonwealth’s case in the trial
court, appellant moved to strike on the grounds that the facts
demonstrated petit larceny rather than credit card theft and that
the gas card was not a credit card as defined in Code ? 18.2?191.[1] After extensive argument on
whether the gas card was a credit card for the purposes of the
statute, the trial court convicted appellant of credit card theft
and sentenced him to two years in prison suspended on condition
of good behavior for five years.

II.

Appellant was convicted under Code ? 18.2-192, which
provides:

A person is guilty of credit card or credit card number theft
when:

(a) He takes, obtains or withholds a credit card or credit
card number from the person, possession, custody or control of
another without the cardholder’s consent or who, with knowledge
that it has been so taken, obtained or withheld, receives the
credit card or credit card number with intent to use it or sell
it, or to transfer it to a person other than the issuer or the
cardholder; or

(b) He receives a credit card or credit card number that he
knows to have been lost, mislaid, or delivered under a mistake as
to the identity or address of the cardholder, and who retains
possession with intent to use, to sell or to transfer the credit
card or credit card number to a person other than the issuer or
the cardholder; or

(c) He, not being the issuer, sells a credit card or credit
card number or buys a credit card or credit card number from a
person other than the issuer; or

(d) He, not being the issuer, during any twelve?month period,
receives credit cards or credit card numbers issued in the names
of two or more persons which he has reason to know were taken or
retained under circumstances which constitute a violation of ? 18.2?194 and
subdivision (1)(c) of this section.

Appellant argues that his unauthorized use of the gas card
does not constitute credit card theft for the purposes of this
statute. We agree.

"The main purpose of statutory construction is to
determine the intention of the legislature ‘which, absent
constitutional infirmity, must always prevail.’" Last v.
Virginia State Bd. of Med.
, 14 Va. App. 906, 910, 421 S.E.2d
201, 205 (1992) (quoting Board of Supervisors v. King Land
Corp.
, 238 Va. 97, 103, 380 S.E.2d 895, 897 (1989)).
"Where a statute is unambiguous, the plain meaning is to be
accepted without resort to the rules of statutory
interpretation." Last, 14 Va. App. at 910, 412 S.E.2d
at 205. "’Courts are not permitted to rewrite statutes. This
is a legislative function. The manifest intention of the
legislature, clearly disclosed by its language, must be
applied.’" Barr v. Town & Country Properties, Inc.,
240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Anderson
v. Commonwealth
, 182 Va. 560, 566, 29 S.E.2d 838, 841
(1944)).

The legislature clearly intended to prohibit the theft of
credit cards when it enacted Code ? 18.2?192. However,
the section deals only with improper acquisition, possession, and
distribution of credit cards; it does not cover subsequent
misuse. Therefore, even if the evidence established that the gas
card was a credit card as defined in Code ? 18.2?191,[2] the
statute prohibiting theft of credit cards does not apply to the
instant facts. Appellant had possession of the gas card with the
permission of the University. He did not steal it. The above
facts, if proven, show that he stole gasoline. As appellant
acknowledges, theft of gasoline valued under $100 is petit
larceny, not credit card theft. For the foregoing reasons, we
reverse and remand for the Commonwealth to take whatever action
it deems appropriate.

Reversed and remanded.

 

 

 

 

FOOTNOTES:

[1] "’Credit card’ means any
instrument . . . issued . . . for
the use of the cardholder in obtaining . . .
goods . . . ." Code ? 18.2?191.

[2] Additionally, appellant argued
that the gas card was not a credit card as defined in Code ? 18.2?191. Resolution
of this question is not necessary to our decision.

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