Fulltext Opinions
COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, McClanahan and Senior Judge Fitzpatrick
Argued by teleconference
JOSEPH MARIO SAPONARO
OPINION BY
v. Record No. 2895-06-3 JUDGE ELIZABETH A. McCLANAHAN
JANUARY 15, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BOTETOURT COUNTY
Malfourd W. Trumbo, Judge
Thomas E. Wray for appellant.
Karri B. Atwood, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Joseph Mario Saponaro was convicted in a bench trial for credit card fraud, in violation
of Code ? 18.2-195. On appeal, Saponaro argues the trial court erred in denying his motion to
strike the evidence. For the following reasons, we reverse his conviction.
BACKGROUND
The relevant facts are undisputed. Kenneth Weaver, a building contractor, employed
Saponaro as a subcontractor for a number of commercial contracts. Weaver provided Saponaro
with a business credit card to make purchases for Weaver?s construction business. Saponaro was
in possession of the credit card for a period of approximately five months. During that time
period, Saponaro charged several thousand dollars worth of personal items on the card, knowing
it was to be used for business purposes only. On multiple occasions, Weaver confronted
Saponaro about his personal use of the card, which Weaver discovered from the monthly credit
card statements, and each time Saponaro agreed to reimburse Weaver for those purchases.
Weaver finally took the credit card from Saponaro and then terminated his employment.
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Saponaro was indicted for credit card fraud under Code ? 18.2-195. His indictment
specifically charged that he ?did unlawfully and feloniously obtain money, goods, or services in
excess of $200.00 by representing without the consent of the cardholder that he is the holder of a
specified card or card holder.? At the end of his trial, Saponaro moved to strike the evidence
against him, arguing the Commonwealth had failed to prove the elements of the offense. The
trial court denied the motion, finding him guilty.
ANALYSIS
Because this case presents ?a question of law . . . involv[ing] the interpretation and
application? of Code ? 18.2-195, ?we review the trial court?s judgment de novo.? Colbert v.
Commonwealth, 47 Va. App. 390, 394, 624 S.E.2d 108, 110 (2006); see Rollins v.
Commonwealth, 37 Va. App. 73, 79, 554 S.E.2d 99, 102 (2001) (?[W]e review the trial court?s
statutory interpretations and legal conclusions de novo.? (internal quotation marks and citation
omitted)). Code ? 18.2-195 provides, in relevant part, as follows: ?(1) A person is guilty of
credit card fraud when, with intent to defraud any person, he: . . . (b) Obtains money, goods,
services or anything else of value by representing (i) without the consent of the cardholder that
he is the holder of a specified card or credit card number . . . .? ?Cardholder? is defined as ?the
person or organization named on the face of a credit card to whom or for whose benefit the credit
card is issued by an issuer.? Code ? 18.2-191. No definition is provided for the term ?holder.?
In this case, it is undisputed Saponaro had the consent of the cardholder (Weaver) to hold
the credit card during the entire period he was making his personal purchases on the card. The
Commonwealth nevertheless argues that Saponaro violated Code ? 18.2-195(1)(b)(i) because he
only had Weaver?s consent to use the card for business purposes. While that is correct, this
provision does not proscribe in any way an accused?s use of a credit card that he holds with the
cardholder?s consent. Because the statute does not define ?holder,? we must give the word its
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?ordinary meaning unless the word is a term of art.? Conkling v. Commonwealth, 45 Va. App.
518, 521, 612 S.E.2d 235, 237 (2005) (citation and internal quotation marks omitted). A
?holder? is generally defined as ?[o]ne that holds as: . . . [o]ne that possesses something.?
American Heritage College Dictionary 647 (3rd ed. 1997). Similarly, as a term of art under the
Uniform Commercial Code, ?holder? means a ?person in possession? of either a negotiable
instrument or a negotiable tangible document of title. Code ? 8.1A-201(21)(A) and (B); see also
Code ? 8.1A-404.1 We thus conclude that a ?holder? under Code ? 18.2-195(1)(b)(i) simply
refers to one in possession of the cardholder?s credit card. Accordingly, the threshold issue
under this provision is whether Saponaro, when engaged in the subject transactions, had the
cardholder?s consent to possess the card. The fact that Saponaro had such consent is, therefore,
dispositive.
Indeed, Code ? 18.2-195(1)(b)(i) does not specifically address the actual use of a credit
card, but rather one?s representation regarding his or her status as a holder of the card or card
number when ?[o]btaining,? by whatever means, ?money, goods, services or anything else of
value.? It is subsection (1)(a) of the statute which, in fact, addresses credit card fraud where one
?[u]ses [a credit card or credit card number] for the purpose of obtaining money, goods, services
or anything else of value.? Code ? 18.2-195(1)(a). There, such use is a crime if the card or card
1 Code ? 8.1A-404, addressing ?impostors? and ?fictitious payees,? further confirms that
no specific legal parameters can be ascribed, for purposes of this case, to the term ?holder,? in
looking to the UCC for guidance, other than it being a reference to one in possession of the
subject item. Under certain circumstances involving the misuse of a commercial instrument, as
set forth under subsection (b) of this statute, the ?holder? is simply defined as ?[a]ny person in
possession of the instrument.? Code ? 8.1A-404(b)(1). As then explained in Official Comment
2 to subsection (b), the holder may be lawfully or wrongly in possession of the subject
instrument. As an example, a ?Thief? may be the ?holder? of an instrument, e.g., a forged check,
?because Thief is the person in possession of the instrument . . . even though Thief does not have
title to the check and is in wrongful possession of it.? Then a depository bank ?that takes the
check in good faith? becomes the ?holder? of the same check. Official Comment 2 to Code
? 8.1A-404 (Case #4).
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number was ?obtained or retained in violation of ? 18.2-192 [credit card theft],? or the user
?knows? the card or number ?is expired or revoked.? Id.
Furthermore, one?s misuse of a credit card lawfully possessed (see Code ? 18.2-111
(embezzlement)), as in the instant case, is distinct from one?s misuse of a credit card wrongfully
in his or her possession, which is the focus of Code ? 18.2-195(1)(a) and (b). The
Commonwealth contends that the former, as well as the latter, is a criminal act under subsection
(1)(b)(i) of the statute. However, the Commonwealth conceded at oral argument that its
interpretation of this provision would require us to read words into the statute such that the
?holder? is holding the credit card ?for a specific purpose.? In other words, the Commonwealth
would have us rule that credit card fraud occurs under this provision where the cardholder gives
his or her consent for the accused to use the card only for a specific, limited purpose, and the
accused violates that limitation. This we cannot do. That is to say, ??[c]ourts cannot read into a
statute something that is not within the manifest intention of the legislature as gathered from the
statute itself. To depart from the meaning expressed by the words is to alter the statute, to
legislate and not to interpret.?? Stevens v. Commonwealth, 46 Va. App. 234, 245, 616 S.E.2d
754, 759 (2005) (en banc) (quoting Jordan v. South Boston, 138 Va. 838, 844-45, 122 S.E. 265,
267 (1924)), aff?d, 272 Va. 481, 634 S.E.2d 305 (2006).
The trial court thus erred in denying Saponaro?s motion to strike the evidence at the end
of his trial as the Commonwealth failed to prove the charge against him under Code
? 18.2-195(1)(b)(i).
For these reasons, we reverse Saponaro?s conviction.
Reversed and final judgment.
