Gheorghiu v. Com.

Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.

MIHAI GHEORGHIU

v. Record No. 091945 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
COMMONWEALTH OF VIRGINIA NOVEMBER 4, 2010

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal Mihai Gheorghiu asks us to reverse his

convictions by an Arlington County jury of one count of identity

theft, one count of credit card fraud and 36 counts of credit

card theft because Arlington County was an improper venue for

the prosecutions.

FACTS

The facts in this case are not in dispute. Gheorghiu and

his cousin drove from New York City to Alexandria, Virginia, on

September 20, 2005. They checked into a hotel in Alexandria

using Gheorghiu’s personal valid credit card. The next day

while still in Alexandria, Gheorghiu attempted to use a credit

card containing a number belonging to Iris Keltz to buy a $300

gift card, but was unsuccessful because the number would not go

through the system. Gheorghiu and his cousin later went to

Fairfax where they purchased a laptop computer using a credit

card with a number belonging to Gerald Kent. Throughout the

day, Gheorghiu obtained a number of items in Alexandria, Fairfax
and Arlington Counties using the credit card numbers belonging

to other individuals.

At 4:40 p.m. on September 21, 2005, Arlington County police

stopped Gheorghiu’s vehicle for speeding. When processing

Gheorghiu’s information, the officer discovered an outstanding

warrant for Gheorghiu’s arrest from New Jersey. The officer

arrested Gheorghiu, took him into custody, impounded his vehicle

and inventoried its contents. Gheorghiu’s briefcase, found in

the vehicle, contained a laptop computer, a thumb drive, two

credit cards and five compact discs. One of the discs contained

a program file that allowed the computer to interface with a

credit card remagger found in the vehicle and another program

file that allowed Gheorghiu to generate numbers to unlawfully

unlock the software necessary to use the remagger program. 1 The

other four compact discs and the thumb drive contained files

with the names and credit card numbers of approximately 100

persons, including those of Keltz and Kent. Twelve credit cards

were also recovered. Eleven of the cards had Gheorghiu’s name

on the front, but only three of these cards had numbers on the

front that matched the numbers in the magnetic strip on the back

of the card. Documents with Gheorghiu’s name and address in New

1
A remagger is a device that permits a person to read and
write data to the magnetic strip on the back of a credit card.

2
York as well as three new laptop computers and other merchandise

were found in the vehicle.

Gheorghiu was indicted and tried in Arlington County upon

57 indictments charging nine counts of identity theft in

violation of Code § 18.2-186.3, 36 counts of credit card theft

in violation of Code § 18.2-192, eight counts of credit card

forgery, in violation of Code § 18.2-193, three counts of credit

card fraud in violation of Code § 18.2-195, and one count of

possession of burglarious tools in violation of Code § 18.2-94.

Both Keltz and Kent testified that they did not live in

Arlington County, did not know Gheorghiu, and did not give him

permission to use their credit card numbers. Detective Dan

Gillenwater, a computer forensics investigator, testified that a

computer program file on Gheorghiu’s laptop computer was

accessed on September 21 at approximately 8:00 a.m. That file

interfaced the computer with a remagger, but Gillenwater could

not determine who accessed the computer file, who remagged the

stolen numbers onto the credit cards, or where the laptop

computer was located when those tasks were performed. The trial

court dismissed four of the identity theft counts for lack of

evidence and entered judgment on the guilty verdicts returned by

the jury on all remaining counts.

Gheorghiu appealed to the Court of Appeals. In a published

opinion, the Court of Appeals reversed and dismissed Gheorghiu’s

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conviction of possession of burglarious tools, and affirmed the

remaining convictions. Gheorghiu v. Commonwealth, 54 Va. App.

645, 682 S.E.2d 50 (2009). The Court of Appeals held, among

other things, that Gheorghiu’s claim of improper venue relating

to the 36 credit card theft charges was procedurally barred,

that identity theft is a continuing offense and thus venue for

the identity theft charge relating to Keltz’ credit card number,

case number CR05-1243, was proper in Arlington County pursuant

to Code § 18.2-186.3(D) because Gheorghiu possessed the

identifying information in that county, and that possession of

Kent’s credit card number in Arlington County was an act in

furtherance of credit card fraud satisfying the venue

requirements of Code § 18.2-198.1 in case number CR06-449.

Gheorghiu filed a timely appeal with this Court.

DISCUSSION

In this appeal, Gheorghiu assigns error to the Court of

Appeals’ judgment with regard to his convictions in case numbers

CR05-1243, identity theft, Code § 18.2-186.3, and CR06-449,

credit card fraud, Code § 18.2-195. He asserts that venue was

improper in Arlington County for the prosecution of these two

charges. In another assignment of error, Gheorghiu asserts that

venue was improper for the 36 counts of credit card theft.

Gheorghiu acknowledges that no objection was made to venue in

the trial court with regard to these counts; nevertheless,

4
Gheorghiu asks us to apply the “for good cause shown” and “ends

of justice” exceptions contained in Rule 5:25 and to reverse his

convictions for credit card theft based on improper venue. 2 We

will consider these issues in order.

I. Identity Theft

The crime of identity theft is set out in Code § 18.2-

186.3. As relevant here, that section makes it unlawful to

“[o]btain, record or access identifying information which is not

available to the general public that would assist in accessing

financial resources, obtaining identification documents, or

obtaining benefits of such other person” without the permission

of the owner of the information and with the intent to defraud.

Subsection (D) of that section provides, in relevant part, that

In any proceeding brought pursuant to this
section, the crime shall be considered to have
been committed in any locality where the person
whose identifying information was appropriated
resides, or in which any part of the offense took

2
During the proceedings below and briefing in this Court,
Rule 5:25 provided as follows:

Error will not be sustained to any ruling of
the trial court or the commission before
which the case was initially tried unless
the objection was stated with reasonable
certainty at the time of the ruling, except
for good cause shown or to enable this Court
to attain the ends of justice.

The language of Rule 5:25 was amended effective
July 1, 2010, but none of the terms or
requirements of the Rule applicable on this
appeal were altered.

5
 place, regardless of whether the defendant was
ever actually in such locality.

(Emphasis added). In this case, the evidence established that

Keltz lived in New York, not Arlington County. Therefore, to

establish venue in Arlington County in case number CR05-1243,

theft of Keltz’ identifying information, the Commonwealth was

required to establish a strong presumption that part of the

offense took place in Arlington County. Cheng v. Commonwealth,

240 Va. 26, 36, 393 S.E.2d 599, 604 (1990).

The Court of Appeals held that Arlington County was a

proper venue in which to prosecute Gheorghiu for the identity

theft relating to Keltz because identity theft is a continuing

offense, part of which occurred in Arlington County. According

to the Court of Appeals, the acts of “recording or accessing an

individual’s identifying information . . . continue after the

initial obtaining of the information . . . . [O]nce an

individual’s identifying information is stolen, the individual’s

identity remains stolen by the perpetrator as long as the

perpetrator possesses that information with the intent to

defraud.” 54 Va. App. at 657-58, 682 S.E.2d at 56. As a

continuing offense, the Court of Appeals reasoned, the offense

continues “until the information is returned to the victim (in

such a way that the perpetrator no longer retains it) or the

perpetrator’s fraudulent intent to use [it] no longer exists.”

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Id. at 660, 682 S.E.2d at 57. In the Court of Appeals’ view,

“the possession of a victim’s identifying information with the

intent to defraud the victim is a part of the continuing offense

of identity theft.” Id. at 664-65, 682 S.E.2d at 59-60. Thus,

the Court of Appeals concluded that venue in Arlington County

for this charge was proper because Gheorghiu’s actions using or

attempting to use the credit card numbers of others to obtain

goods that day and possession of Keltz’ identifying information

in Arlington County established a strong presumption that

Gheorghiu intended to use Keltz’ information in Arlington County

to defraud Keltz. Id. at 665-66, 682 S.E.2d at 60.

As the Court of Appeals noted, we have not heretofore

considered whether identity theft is a continuing offense for

purposes of the venue provisions of Code § 18.2-186.3. We have

identified larceny as a continuing offense for venue purposes

based on the common law legal fiction that each time the stolen

goods are taken into a new jurisdiction, there is an illegal

asportation and a new crime is committed, thereby allowing

prosecution for the larceny in any jurisdiction to which the

goods were taken. Strouther v. Commonwealth, 92 Va. 789, 791,

22 S.E. 852, 852 (1895). 3 That analysis however does not apply

3
In Montague v. Commonwealth, 260 Va. 697, 702, 536 S.E.2d
910, 913 (2000), and Doane v. Commonwealth, 218 Va. 500, 502,
237 S.E.2d 797, 798 (1977), while recognizing the legal fiction
making larceny a continuing offense for venue purposes, we

7
to the crime at issue here. The legal fiction underlying venue

for larceny is based on the creation of a new crime each time

asportation to a new jurisdiction occurs. The concept of a

continuing offense used by the Court of Appeals, with regard to

the crime of identity theft, does not involve the commission of

a new crime but of an incomplete crime, which continues as long

as the defendant retains the identifying information with the

intent to defraud.

A rationale similar to that used by the Court of Appeals in

this case was presented to this Court with regard to the nature

of the offense of credit card theft. In Meeks v. Commonwealth,

274 Va. 798, 651 S.E.2d 637 (2007), the victim reported her

wallet containing credit cards missing while at a group home in

Fairfax County. Meeks was at the group home on the same day as

the victim. Later that day, Meeks used the victim’s credit card

in the city of Alexandria to pay for a hotel room and obtain

cash. Meeks was charged with credit card theft in Alexandria.

274 Va. at 800, 651 S.E.2d at 638.

At that time, Code § 18.2-198.1 provided that venue for

credit card theft was proper any place the defendant commits

declined to extend that legal fiction to satisfy the elements of
the felony-murder statute. The legal fiction ascribed to
larceny thus is limited to resolving issues of venue.

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“any act in furtherance of the crime”. 4 Code § 18.2-192 defined

credit card theft, as relevant in Meeks, as the taking,

obtaining or withholding a credit card from another person

without the cardholder’s consent. The Commonwealth maintained

that Alexandria was a proper venue for prosecuting Meeks because

retention of a credit card with the intent to unlawfully use or

transfer it constitutes “withholding” under the statute. 274

Va. at 802, 651 S.E.2d at 639. Thus Meeks, by possessing the

card in Alexandria, engaged in an “act in furtherance of the

crime” in Alexandria. We rejected the Commonwealth’s position.

Applying principles of statutory construction, we held that

“withhold” as used in Code § 18.2-192 did not include retention

of a credit card with the intent to defraud and that the crime

of credit card theft is complete when the card is taken,

obtained or withheld from its rightful owner. Id. at 803-04,

651 S.E.2d at 639-40. Accordingly, we concluded that venue in

Alexandria was improper because the crime was complete when

Meeks obtained the credit card without the victim’s consent in

4
On July 1, 2008, Code § 18.2-198.1 was amended
by adding the following sentence:

A prosecution for a violation of § 18.2-
192 may be had in any county or city
where a credit card number is used, is
attempted to be used, or is possessed
with intent to violate § 18.2-193, 18.2-
195, or 18.2-197.

See 2008 Acts ch. 797.

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Fairfax and, thus, possessing the card in Alexandria could not

be an act in furtherance of the crime. Id.

The Commonwealth’s argument, which we rejected in Meeks,

was based on the premise that the crime continued as long as the

defendant illegally possessed the card with the intent to

defraud. In the instant case, the Court of Appeals relied upon

the same theory to conclude that identity theft is a continuing

offense. We reject that theory in this case also.

In considering the nature of the crime of identity theft we

begin, as we did in Meeks, with the language of the statute. As

relevant here, Code § 18.2-186.3 makes it illegal to “[o]btain,

record, or access” the owner’s identifying information without

the owner’s permission and with the intent to defraud the owner.

Obtaining, recording and accessing the identifying information

are discrete actions that are complete when the information has

been obtained, has been recorded or has been accessed. Each

time such an act is performed it is a separate discrete offense.

Therefore, under the clear terms of the statute, the crime of

identity theft is complete when any one of these acts occurs in

conjunction with the intent to defraud. While the identifying

information remains stolen as long as the thief possesses the

information, nothing in the language of Code § 18.2-186.3

implies or otherwise supports the concept that the continued

possession of the information obtained, accessed or recorded is

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an element of the crime of identity theft. Here, as in Meeks,

the crime of identity theft was complete when Keltz’ identifying

information was obtained, accessed or recorded. Gheorghiu’s

subsequent possession of the identifying information was not

part of that crime. Therefore, insofar as the Court of Appeals’

judgment was based on the premise that venue for case number

CR05-1243 was proper in Arlington County because Gheorghiu’s

continued possession of Keltz’ identifying information was part

of the offense, the judgment is erroneous.

Based on this record, considering the evidence in the light

most favorable to the Commonwealth, the prevailing party below,

Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173

(2010), we conclude that there is insufficient evidence to

demonstrate a strong presumption that any part of obtaining,

accessing or recording Keltz’ identifying information with the

intent to defraud occurred in Arlington County. There is no

evidence showing where the laptop belonging to Gheorghiu was

located when accessed, who accessed it, or who remagged the

credit card numbers, specifically Keltz’ number, onto the credit

cards. The lack of such evidence makes it impossible to sustain

a strong presumption that “any part” of the crime of identity

theft in case number CR05-1243 occurred in Arlington County, and

therefore, venue in that county was improper.

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 II. Credit Card Fraud

Gheorghiu also asserts that Arlington County was an

improper venue for the prosecution of credit card fraud in case

number CR06-449. At the time of Gheorghiu’s trial, Code § 18.2-

198.1, the special venue statute applicable to the crime of

credit card fraud, provided that venue was proper in any

jurisdiction in which “any act in furtherance of the crime was

committed.” The Court of Appeals concluded that venue was

proper in Arlington County because Gheorghiu’s possession of

Kent’s credit card number in Arlington County was an “act in

furtherance” of the use of the number in Fairfax. 5 The Court of

Appeals reasoned that in order to “use” Kent’s credit card

number Gheorghiu had to possess it and, therefore, concluded

that possession of the number was an “act in furtherance” of the

crime. 54 Va. App. at 669, 682 S.E.2d at 61-62.

While we have not construed or applied the phrase “any act

in furtherance of the crime” for purposes of Code § 18.2-198.1,

we conclude that the Court of Appeals’ holding is inconsistent

with the facts of the case. Gheorghiu’s possession of Kent’s

credit card number is based on the fact that he had the number

when he was arrested in Arlington County. At that point, the

5
Gheorghiu was also indicted and convicted of credit card
fraud for the purchase of a laptop computer in Arlington County
using Kent’s credit card number (case number CR06-452). That
conviction is not at issue in this appeal.

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credit card number had already been used to purchase a laptop

computer in Fairfax. The crime of credit card fraud charged in

case number CR06-449 was complete. Therefore, possession of the

credit card number in Arlington County subsequent to the

commission of the crime could not “further” the crime.

Consequently, the Court of Appeals’ judgment sustaining the

trial court’s ruling that venue was proper in Arlington County

for prosecution of case number CR06-449 is erroneous and must be

set aside.

III. Credit Card Theft

Gheorghiu was charged in Arlington County with 36 counts of

credit card theft based on the credit card numbers found in his

possession when he was arrested. He did not object to venue in

Arlington County with regard to these counts. Gheorghiu now

asserts that venue was improper in Arlington County, based on

our decision in Meeks, which was decided after his convictions.

He asks that we consider his contention regarding venue under

the “ends of justice” and “for good cause shown” provisions of

Rule 5:25.

Gheorghiu contends that at the time of trial any objection

to venue for the credit card theft charges would have been

fruitless under the state of the law at that time. Gheorghiu

asserts that, following his conviction, this Court decided

Meeks, which changed the law regarding the elements of credit

13
card theft and that this change affected considerations of

venue. Gheorghiu submits that he should now be heard on the

issue of proper venue for these charges applying the law as set

out in Meeks. In short, Gheorghiu is claiming that the change

in the law provides good cause to excuse the failure to object

to venue for the credit card theft charges and the ends of

justice require consideration of this issue. We disagree.

Although the law may have been adverse to Gheorghiu at the

time of trial, it was equally adverse to the defendant in Meeks;

nevertheless, that defendant objected to venue thereby

preserving the issue for appellate consideration. Additionally,

Gheorghiu had the opportunity to bring the issue to the

attention of the Court of Appeals as early as November 2, 2007,

the date the Meeks opinion was issued. While Gheorghiu

requested a rehearing and a belated appeal in the Court of

Appeals on December 21, 2007, he did not raise the venue issue

on these counts in that request. The first time Gheorghiu

raised this venue issue was in May 2008 in his brief on the

merits filed following the grant of his motion. Under these

circumstances we find no good cause to make an exception to the

contemporaneous objection requirement of Rule 5:25.

Rule 5:25 also allows us to consider matters not preserved

for appeal to attain the ends of justice. Whether the ends of

justice provision should be applied involves two questions: (1)

14
whether there is error as contended by the appellant; and (2)

whether the failure to apply the ends of justice provision would

result in a grave injustice. Charles v. Commonwealth, 270 Va.

14, 17, 613 S.E.2d 432, 433 (2005). Regardless of any error, we

conclude that no grave injustice will occur if we do not apply

the ends of justice provision in these circumstances.

Venue, while important to the orderly conduct of

litigation, is not a matter affecting the merits of the trial.

Randall v. Commonwealth, 183 Va. 182, 187, 31 S.E.2d 571, 573

(1944)(proof of venue not material to merits of prosecution).

Venue is not an element of the crime that must be shown beyond a

reasonable doubt to sustain a conviction. Cheng, 240 Va. at 36,

393 S.E.2d at 604. The General Assembly has limited the time in

which objections to venue may be raised, Code § 19.2-244, and

issues of venue may be waived. Green v. Commonwealth, 266 Va.

81, 95, 580 S.E.2d 834, 842 (2003).

We have applied the ends of justice exception of Rule 5:25

in very limited circumstances including, for example, where the

record established that an element of the crime did not occur,

Ali v. Commonwealth, 280 Va. 665, 671, 701 S.E.2d 64, 68 (2010)

(this day decided); a conviction based on a void sentence,

Charles, 270 Va. at 20, 613 S.E.2d at 435; conviction of a non-

offense, Jimenez v. Commonwealth, 241 Va. 244, 249-50, 402

S.E.2d 678, 680 (1991); and a capital murder conviction where

15
the evidence was insufficient to support an instruction, Ball v.

Commonwealth, 221 Va. 754, 758, 273 S.E.2d 790, 793 (1981).

Throughout the course of his appeal, Gheorghiu has not

challenged the sufficiency of the evidence supporting his

convictions of credit card theft. On this record, it is fair to

assume that in whatever venue these charges were prosecuted, the

end result would be no different. Accordingly we do not find

the circumstances of this case sufficient to invoke the

provisions of Rule 5:25 excusing the requirement that error be

properly preserved for consideration on appellate review.

CONCLUSION

In summary, for the reasons stated, we will affirm the

judgment of the Court of Appeals affirming convictions for

credit card theft in case numbers CR05-1231 through CR05-1240,

CR06-453 through CR06-469 and CR06-752 through CR06-760, because

consideration of the issue raised with regard to these

convictions was not preserved for appeal. Rule 5:25. We will

reverse the judgment of the Court of Appeals and vacate the

convictions in case number CR05-1243, identity theft relating to

Iris Keltz, and case number CR06-449, credit card fraud relating

to Gerald Kent, because the Commonwealth did not establish a

strong presumption that Arlington County was the proper venue

for prosecution of these offenses. These cases, numbers CR05-

1243 and CR06-449, will be remanded for further proceedings

16
should the Commonwealth be so inclined. Pollard v.

Commonwealth, 220 Va. 723, 726, 261 S.E.2d 328, 330 (1980);

Keesee v. Commonwealth, 216 Va. 174, 176, 217 S.E.2d 808, 810

(1975).

Affirmed in part,
reversed in part,
and remanded.

17