Steven Lawrence Sykes v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Elder and Overton
Argued at Richmond, Virginia
STEVEN LAWRENCE SYKES OPINION BY
v. 	Record No. 0012-97-2 	CHIEF JUDGE JOHANNA L. FITZPATRICK
MARCH 31, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
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.

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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
1"'Credit card' means any instrument . . . issued . . . for
the use of the cardholder in obtaining . . . goods . . . ." 	Code
§ 18.2-191.

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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

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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.
2Additionally, 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.