789 S.E.2d 779
Va. Ct. App.2016Background
- In 1999 Christian Childers bought a Loudoun County home and provided his SSN to Wells Fargo when refinancing. Starting in 2009 he received mail and calls for José Salazar (appellant).
- In 2012 Wells Fargo emails referenced a loan in Silver Spring, MD, associated with Salazar and Childers’ SSN; Childers never authorized such use.
- Detective Sheffer investigated; appellant admitted on a loan application he “made up” an SSN to obtain a refinance on the Silver Spring property. The SSN matched Childers’.
- Wells Fargo records showed two mortgage loans tied to the same SSN: Childers’ home and appellant’s Silver Spring loan.
- Appellant was convicted in a bench trial under Va. Code § 18.2-186.3(A)(2) (identity theft) and the court found a financial loss over $200, making the offense a Class 6 felony.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Salazar) | Held |
|---|---|---|---|
| Elements required under § 18.2-186.3(A)(2) | Statute requires unauthorized use of another’s identifying information with intent to defraud to obtain money/credit/loans/services | Argues statute also requires proof defendant knew the identifying information actually belonged to another specific person (i.e., a ‘‘knowing’’ element) | Court: Elements are (1) unauthorized use of another’s identifying information, (2) intent to defraud, (3) use to obtain money/credit/loans/goods/services. No separate requirement that defendant knew the information in fact belonged to another person because statute omits the word “knowingly.” |
| Sufficiency of evidence of intent to defraud | Appellant submitted loan application using Childers’ SSN and admitted he fabricated the number to obtain the loan | Appellant contends he may have randomly invented a number and lacked specific knowledge or intent to defraud Childers or the lender | Held: Circumstantial evidence and appellant’s admission that he made up the SSN to obtain the loan established intent to defraud beyond a reasonable doubt. |
| Sufficiency of evidence that loan was obtained via the false SSN | Commonwealth: Wells Fargo records link appellant’s mortgage to Childers’ SSN; the application used the SSN requested by lender | Appellant: Commonwealth must show lender actually relied on the SSN or that the false SSN caused the loan to be issued | Held: Records tying appellant’s mortgage to Childers’ SSN and the application using that SSN suffice to show the loan was obtained through that information; statute does not require an extra reliance element. |
| Classification — whether financial loss > $200 occurred | Commonwealth: Victim (Childers) paid >$200 for credit-monitoring; lender may also have suffered loss | Appellant: No evidence lender sustained an actual loss; credit-monitoring costs are preventive and not a direct loss | Held: Payments for credit monitoring (>$200) incurred by Childers as a direct consequence of the misuse qualify as a “financial loss” under the statutory scheme, so felony classification was proper. |
Key Cases Cited
- Flores-Figueroa v. United States, 556 U.S. 646 (interpreting a federal statute to require the defendant to know the identification belonged to another person)
- Lahey v. Johnson, 283 Va. 225 (courts may not add language to statutes not included by the legislature)
- Brown v. Commonwealth, 284 Va. 538 (give effect to legislature’s omission or inclusion of statutory language)
- Howell v. Commonwealth, 274 Va. 737 (restitution/compensation for preventative measures not allowed where not direct result of offense)
- Davenport v. Little-Bowser, 269 Va. 546 (statutory construction to ascertain legislative intent)