Virginia Lawyers Weekly VA Lawyers Weekly
A defendant identified as a waiter at a Denny’s restaurant who took a customer’s credit card and used the card to charge $153 in merchandise at a Walmart cannot overturn his conviction of credit card fraud with a claim that the commonwealth did not prove his identity as the perpetrator of the crime; the Court of Appeals says circumstantial evidence was sufficient to prove his identity.
The evidence established that the customer gave her credit card to defendant, but never got it back. While it is true defendant testified that he remembers returning the credit card to the customer, conflicts of testimony are resolved by the fact finder and the trial court here resolved the conflict in favor of the customer.
A week after defendant failed to return the credit card, unauthorized charges appeared on the customer’s bank statement. During an officer’s investigation of the incident, he viewed the Walmart surveillance tape, which showed the person who used the credit card at Walmart. The officer testified that the person in the surveillance tape was a young male with black, wide-framed glasses.
Then, when executing the search warrant of defendant’s residence, the police found a black hat in defendant’s bedroom that was similar to the one worn by the suspect in the surveillance video. Police found Sparkle brand paper towels in a closet in defendant’s living room, which was one of the items purchased from Walmart with the stolen credit card.
Finally, this court notes defendant made inconsistent statements while testifying. After considering all the evidence, this court finds the trial court judgment was not plainly wrong or without evidence to support it.
Harrington v. Commonwealth (Huff) No. 0561-13-2, Jan. 21, 2014; Colonial Heights Cir.Ct. (Gill) John A. Kirkland for appellant; Aaron J. Campbell, AAG, for appellee. VLW 014-7-014(UP), 6 pp.
