Arrate v. Commonwealth (U)

The defendant’s conviction for credit-card forgery must be reversed, because the indictment failed to allege the conduct for which he was convicted.

The indictment charged the defendant with credit-card forgery by “falsely mak[ing] or falsely emboss[ing] a purported credit card, in violation of [Code] § 18.2-193.” Crucially, the indictment omitted the language from subsection (1)(a) most clearly applicable to the defendant’s conduct: “or utters such a credit card.”

The trial court relied on the indictment’s general citation to Code § 18.2-193, without including a specific subsection, in finding that it included not only making and embossing, but also uttering. The trial court’s statements make clear that it found the defendant guilty of uttering the forged card. Uttering is an assertion by word or action that an instrument known to be forged is good and valid. Yet the indictment charged the defendant solely with making and embossing. Thus, it failed to provide him adequate notice that the Commonwealth intended to show he uttered the forged card. As such, a fatal variance existed between the indictment and the conduct for which the trial court convicted the defendant.

Reversed.

Arrate v. Commonwealth (U), No. 0518-18-2, Feb. 12, 2019. CAV (AtLee) from Caroline (Deneke).



Categories: Court of Appeals of Virginia, Opinions, Unpublished

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