Wallace v. Commonwealth

1

Taylor Amil Wallace, Appellant, v. Commonwealth of Virginia, Appellee.

Record No. 1040-21-1

Court of Appeals of Virginia

February 28, 2023

In the Court of Appeals of Virginia on Tuesday the 28th day of March, 2023.

Upon a Petition for Rehearing En Banc

On March 14, 2023 came the appellee, by the Attorney General of Virginia, and filed a petition requesting that the Court set aside the judgment rendered herein on February 28, 2023, and grant a rehearing en banc on the issue(s) raised in the petition.

On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia, the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.

The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and served on opposing counsel.^[1]

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Circuit Court Nos. CR19-1147-00 through CR19-1147-15 and CR20-649-00 John W. Brown, Judge.

Samantha Offutt Thames, Senior Assistant Public Defender (Virginia Indigent Defense Commission, on briefs), for appellant.

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

Before Chief Judge Decker, Judges Humphreys, Beales, Huff O'Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins and White.

OPINION

DANIEL E. ORTIZ JUDGE.

A person who uses a computer for a fraudulent purpose does not automatically use it "without authority" under the computer fraud statute. 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. Wallace challenges the sufficiency of the evidence for each conviction. She argues that the Commonwealth failed to prove that: the ATM is a "computer," she used the ATM "without authority," she knew that the checks were forged, and she "willfully" failed to appear in court. We find the evidence insufficient to prove that Wallace used the ATM "without authority" but sufficient to prove the remaining convictions. We affirm in part and reverse in part.

BACKGROUND

In December 2018, Wallace deposited four checks, in the amounts of $440, $324, $450, and $300, into her bank accounts at BB&T, using a drive-through ATM. These checks were deposited on four separate days and were made out from Gregory Starling's Southern Bank account to "Taylor A. Wallace." The first two checks had the word "work" in their memo fields, and the third and fourth checks had the words "cleaning" and "remaining balance," respectively. All four checks were endorsed by "Taylor Wallace." Photos from security cameras show 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 using the funds in Wallace's accounts to make up for the loss, BB&T lost $937.82 in total.

On January 28, 2019, Wallace accepted an interview by Detective Ronald Ward at her mother's residence. Wallace admitted that she was the person depositing the checks and that she did not know Gregory Starling, but she refused to tell Detective Ward where she got the checks. After being arrested and granted bail, Wallace signed a continuance order requiring her to appear before the trial court on January 30, 2020. However, she did not appear on January 30. Wallace was charged with four counts of forging a check, four counts of uttering a forged check, four counts of obtaining money by false pretenses, four counts of computer fraud, one count of using false identification to obtain money, and one count of felony failure to appear, in violation of Code §§ 18.2-152.3, 18.2-172, 18.2-178, 18.2-186.3(A)(2), and 19.2-128(B).

At the 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 the unidentified male in the passenger seat was Sumner and that Sumner did not give her the checks until they were at the ATM. She denied having endorsed the checks, claiming that she never actually looked at the checks because she trusted Sumner. Wallace also stated that she had been represented by several attorneys and that, although she signed the continuance order, the advice from one of her attorneys caused her failure to appear. Wallace was not allowed to testify as to what the attorney told her,^[1] and the attorney did not testify at trial. Finally, Wallace stated that she was 18 years old in December 2018 and admitted that she had had one misdemeanor conviction involving lying, cheating, or stealing, as well as three or four felony convictions as a juvenile. 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.

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 opined that an ATM "would be considered a computer."

After hearing all evidence, the trial court found Wallace guilty of uttering forged checks, obtaining money by false pretenses, computer fraud, and failure to appear. It did not find Wallace guilty of forgery or identity fraud. The trial court sentenced Wallace to 17 years and 96 months of incarceration, with 13 years and 128 months suspended. Wallace appeals, challenging the sufficiency of the evidence for each conviction. First, Wallace argues that the evidence does not support the computer fraud convictions because an ATM is not a computer and Wallace did not use the ATM "without authority." Second, Wallace argues that the evidence does not establish that she possessed the requisite intent for uttering forged checks, obtaining money by false pretenses, or computer fraud. Finally, Wallace argues that the evidence did not establish that she "willfully" failed to appear in court.

ANALYSIS

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 the 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) (citing Ramsey v. Commonwealth, 65 Va.App. 694, 697 (2015)). "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, 433 (1987) (citing Code § 8.01-680). However, "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. The evidence is insufficient to establish that Wallace used the ATM "without authority."

Wallace challenges her computer fraud convictions under Code § 18.2-152.3. She argues that, first, the ATM she used was not a "computer" under the statute, and second, she did not use the ATM "without authority." 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 it "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. Wallace argues that as a BB&T customer, she had the authority to use the ATM to deposit checks and withdraw cash. The Commonwealth responds that Wallace exceeded her authority by depositing forged checks. The question here is whether a person who uses a computer to obtain money by false pretenses is per se "without...