COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Frank 

Argued at Chesapeake, Virginia 

CYNTHIA ELIZABETH FORD, A/K/A 

 CYNTHIA TORRES 

 MEMORANDUM OPINION* BY 

v. Record No. 1276-00-1 JUDGE JAMES W. BENTON, JR. 

 MAY 8, 2001 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

H. Thomas Padrick, Jr., Judge 

 Thomas L. Watkins, Deputy Public Defender, 

for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 The trial judge convicted Cynthia Elizabeth Ford of 

attempted credit card fraud in violation of Code § 18.2-195. 

Ford challenges her conviction on the grounds that the evidence 

was insufficient and that the trial judge erred by admitting 

evidence the Commonwealth failed to disclose during discovery. 

We hold that the evidence was insufficient to support the 

conviction, and we reverse her conviction. 

I. 

 The evidence proved that a female telephone caller 

contacted a Dillard's Department Store in Virginia Beach on 
September 27, 1999 and spoke with a customer service clerk. The 

caller asked to purchase two gift certificates in the amount of 

$400 each, gave the clerk the number of a VISA credit card 

account, spelled her own name as "Maler," and said her 

granddaughter would come for the certificates that afternoon. 

The Commonwealth offered these statements "not . . . for the 

truth of the matter but only why [the clerk] did what she did." 

The Commonwealth introduced no evidence identifying the VISA 

account number the caller gave the clerk. The clerk reported 

the incident to the store supervisor. 

 Early that afternoon, Ford arrived at the store and told 

another customer service employee that she was there to obtain 

gift certificates her grandmother had purchased over the 

telephone. The store supervisor intervened and interviewed Ford 

while an off-duty police officer took notes. When Ford said her 

grandmother's name was "Sheila Malher," and "spelled it 

M-a-l-h-e-r," the supervisor asked how he could contact Malher. 

Ford said Malher had no home phone number and gave him a 

cellular phone number and an address. When the supervisor and 

the officer dialed that number, they received a message that the 

service was disconnected. Ford gave the supervisor her own 

identification displaying the name "Torres" and said she was 

recently divorced and using her name, Ford, again. 

 Sheila Maher testified that she worked as a real estate 

agent in an office where Ford had been a receptionist. Maher 

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testified that Ford's job included opening the mail. Maher also 

testified that she received her VISA account bill at her work 

address but never received a statement for August or September 

1999. During Maher's testimony, she displayed her credit card, 

which was admitted into evidence as an exhibit. 

 Ford moved to strike the evidence both at the end of the 

Commonwealth's case and after she notified the trial judge she 

would present no evidence. The judge denied both of the motions 

and convicted Ford of attempted credit card fraud in violation 

of Code § 18.2-195. 

II. 

 In assessing the sufficiency of the evidence on appeal 

after a conviction, we view the evidence in the light most 

favorable to the Commonwealth, the prevailing party below, and 

accord to that evidence all reasonable inferences fairly 

deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 

352, 218 S.E.2d 534, 537 (1975). When the Commonwealth relies 

on circumstantial evidence to prove guilt, however, "all 

necessary circumstances proved must be consistent with guilt and 

inconsistent with innocence and exclude every reasonable 

hypothesis of innocence." Bishop v. Commonwealth, 227 Va. 164, 

169, 313 S.E.2d 390, 393 (1984). "To satisfy the due process 

requirements of the . . . Constitution, the prosecution must 

bear the burden of proving all elements of the offense beyond a 

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reasonable doubt." Stokes v. Warden, 226 Va. 111, 117, 306 

S.E.2d 882, 885 (1983). 

Pertinent to this appeal, Code § 18.2-195(1)(a) provides 

that "[a] person is guilty of credit card fraud when, with 

intent to defraud any person, [she] . . . [u]ses for the purpose 

of obtaining money, goods, services or anything else of value a 

credit card or credit card number obtained or retained in 

violation of § 18.2-192." The relevant part of Code 

§ 18.2-192(1)(a) provides that "[a] person is guilty of . . . 

credit card number theft when . . . [she] takes, obtains or 

withholds a . . . credit card number from the person, 

possession, custody or control of another without the 

cardholder's consent." 

 The use of a credit card or a credit card number is an 

essential element in the offense of credit card fraud. "An 

attempt to commit a crime is composed of two elements: (1) the 

intent to commit it; and (2) a direct, ineffectual act done 

toward its commission." Barrett v. Commonwealth, 210 Va. 153, 

156, 169 S.E.2d 449, 451 (1969). The Commonwealth must prove 

each element of the offense beyond a reasonable doubt. In this 

case it did not do so. 

The direct evidence shows that Ford went to the store on 

the date in question and inquired about gift certificates, which 

she alleged her grandmother bought for her. No evidence proved 

that Ford ever attempted to use a credit card number in this 

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encounter. Although the clerk testified the telephone caller 

identified herself as "Maler," Ford identified the person who 

sent her as "Malher." To convict Ford, the finder of fact had 

to infer from the similarity of names used that Ford either 

placed the call herself or knew the caller had used a credit 

card number without consent. Otherwise, no connection exists 

between Ford and the fact that the caller mentioned a credit 

card number. 

Those inferences, however, are not the only reasonable 

inferences to be drawn from the evidence. The evidence does not 

exclude the reasonable inference that a person named Maler 

placed the call or that Ford had no knowledge of the use of a 

credit card number. Either of these hypotheses is consistent 

with innocence. Elements of a crime must be proved beyond a 

reasonable doubt and not left to speculation. Strawderman v. 

Commonwealth, 200 Va. 855, 860, 108 S.E.2d 376, 380 (1959). 

 Furthermore, no evidence proved even that the caller used 

Sheila Maher's credit card number when requesting the gift 

certificates. The evidence does not prove what number was given 

to the clerk. At trial, the prosecutor represented that the 

store discarded its record of the information the caller gave. 

Thus, the implication that Ford stole Maher's VISA statement and 

caused her number to be used is purely speculative. The only 

evidence linking the caller, Ford, and Maher to Maher's credit 

card is the similarity in the names Maler, Malher, and Maher. 

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Such evidence provides only a probability that Ford was 

attempting to use Maher's credit card number to violate the 

statute in question. A mere probability, however, is not 

sufficient to convict a defendant beyond a reasonable doubt. 

Sheppard v. Commonwealth, 250 Va. 379, 387, 464 S.E.2d 131, 136 

(1995). Accordingly, we reverse the conviction and dismiss the 

indictment. 

 Because we reverse this conviction on the grounds of 

sufficiency of the evidence, we do not reach the discovery issue 

in the case. 

 Reversed and dismissed. 

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