COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Overton 

Argued at Richmond, Virginia 

OLAOLU WILSON OYEJOLA 

 MEMORANDUM OPINION* BY 

v. Record No. 1315-96-2 JUDGE JAMES W. BENTON, JR. 

 JUNE 17, 1997 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

Oliver A. Pollard, Jr., Judge 

 Joseph A. Sadighian, Assistant Public 

Defender, for appellant. 

 Steven A. Witmer, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Olaolu Wilson Oyejola was convicted by a judge of credit 

card fraud. An appeal was granted on the issue raised by Oyejola 

in his petition for appeal, to wit: "whether the evidence was 

sufficient to sustain a finding that [Oyejola] took the credit 

card from the bank or the holder of the card without consent and 

with the intent to use it." Although Oyejola's counsel raised 

other issues in his brief on appeal, we decide only the issue 

raised in the petition, and we reverse the conviction. 

 I. 

 Prior to trial, the indictment against Oyejola was amended 

to state that he "did take, obtain, or withhold a credit card 

from the person, possession, custody, or control of Central 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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Fidelity Bank, w[ith] the intent to use or sell it without the 

consent of Central Fidelity Bank, Va. Code Sec. 18.2-192." 

Oyejola's counsel did not object to the amendment. Oyejola 

pleaded not guilty and waived his right to a jury trial. 

 At trial, an investigator employed by the Central Fidelity 

Bank in Richmond testified that the bank received a credit card 

account application in the name of Karen T. Soliday at 22 East 

Filmore Street, Petersburg. The investigator sought to verify 

information on the application because the bank had received 

three credit card applications requesting that the cards be sent 

to 22 East Filmore Street, and the similarities in the 

handwriting suggested to him that the applications may be 

fraudulent. The investigator also stated that he had difficulty 

verifying the information on the applications. In particular, he 

called the employer listed on Soliday's application and was told 

that the employer had no employee by that name. The investigator 

contacted the Petersburg Police Department. 

 After contacting the police, the investigator had a credit 

card made and put the card into a mailer containing the name 

"Karen T. Soliday" and addressed to 22 East Filmore Street. 

Tucker put the card and mailer into an envelope and gave it to a 

Petersburg police officer. 

 The police officer arranged to have the postal service 

deliver the envelope while the police conducted a surveillance at 

the address. A police officer testified that he observed Oyejola 
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at that residence prior to the delivery. The officer also 

testified that because the envelope did not have an apartment 

number on it, the envelope was placed on top of the mailboxes at 

the apartment building and not inside a particular mailbox. 

 The officer observed a man leave the building, approach the 

mailboxes, and take the envelope. The officer did not see the 

face of the man. The man then returned to the apartment 

building. About thirty minutes later, the officer observed 

Oyejola leave the building. The officers in the surveillance 

team followed Oyejola while he was driving. They stopped his 

vehicle after a few minutes. 

 A police officer asked Oyejola to exit the vehicle and 

obtained Oyejola's consent to search. The officer removed the 

torn envelope from the bank. He then arrested Oyejola. In the 

ensuing search, the officer found in Oyejola's wallet the credit 

card issued to Karen Soliday. The officer also found several 

business cards containing in handwriting various names, 

addresses, telephone numbers, and Social Security numbers. 

 After Oyejola received his Miranda rights and signed a 

waiver form, Oyejola told the officers that he planned to use the 

credit card to pay his rent. Later, Oyejola wrote the following 

statement: 

 I have been questioned about a credit card 

from Central Fidelity Bank, Account # 

4060-6143-5023-3034, in the name of Karen T. 

Soliday. 

 On 09/21/95, I took this credit card out 

of the envelope when the card was delivered 

to 22 E. Fillimore Street, Petersburg, VA; 
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which is also the address where I live. I 

live in Apt-B and the mail is delivered to 

several mailboxes outside the front of the 

building. 

 After opening the envelope, I put the 

credit card inside my wallet. I have been 

shown a copy of a credit card application in 

the name of Karen T. Soliday and I did not 

fill out this application, and I do not know 

who did complete this application. 

Oyejola also told the officers "that he was going to use the card 

to go to the ATM machine." 

 A United States Secret Service agent testified that Oyejola 

said he had applied for credit cards in other names. None was 

the name Karen Soliday. 

 At the close of the Commonwealth's case, the trial judge 

informed the prosecutor that although the indictment charged that 

Oyejola took the card from the bank, the evidence showed that the 

card was issued in the name of an individual. The judge 

suggested that the prosecutor amend the indictment to charge 

Oyejola with "'withholding the card from the bank or Karen 

Soliday.'" The prosecutor asserted that the card belonged to the 

bank at the time and "never was in the custody of Karen Soliday." 

 Nevertheless, the prosecutor stated that she "would like to" 

amend the indictment. Oyejola's counsel did not object to this 

second amendment. 

 The prosecutor then re-opened the Commonwealth's case and 

recalled the bank's investigator. The investigator testified 

that "[t]he card always belongs to the issuing bank" even though 

it is issued for the use of the person whose name appears on the 
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card. He also stated that the fact that the card is owned by the 

bank is stated in the truth and lending statement. However, he 

did not recall placing a truth and lending statement in the 

envelope sent to Filmore Street. Oyejola's counsel made a motion 

to strike and argued as follows: 

 [T]he indictment as stated claims that the 

card was taken or withheld from the person's 

possession, custody, or control of Central 

Fidelity Bank; however, Investigator Tucker 

cannot present any authority upon which this 

statement is based or the card always 

belonging to the issuing bank. 

 There's no evidence of a truth and lending 

statement having been included in this 

controlled delivery. 

 I further move to strike to the 

sufficiency of the evidence. The card was 

delivered to 22 East Filmore Street. There's 

no evidence that Karen Soliday did not live 

there. Again, at most, Mr. Oyejola would 

have withheld the card from Ms. Soliday 

herself. 

 There's no evidence that he actually 

picked up the envelope in the mail slot. 

Someone did. He was found with it on his 

person later on. For those reasons we would 

ask the Court to strike the case against Mr. 

Oyejola. 

 The judge overruled the motion. Oyejola did not offer 

evidence on his own behalf. Oyejola's counsel renewed his motion 

to strike and argued, in pertinent part, as follows: 

 [W]e would argue the same things that we 

argued on the motion to strike. The 

indictment itself indicates that the credit 

card was withheld from Central Fidelity Bank; 

however, it was issued to Karen Soliday. 

There was no authority that the bank itself 

owns the card. There's no evidence that 

Karen Soliday didn't live at that address or 
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perhaps received the credit card herself and 

handed it to Mr. Oyejola. 

The trial judge convicted Oyejola, finding that he "[t]ook the 

card . . . with the intent to use it for his own benefit without 

the consent of the bank or the holder of the card." 

 II. 

 In pertinent part, Code § 18.2-192 provides as follows: 

 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 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 . . . . 

 The indictment charged that Oyejola "did take, obtain, or 

withhold a credit card from the person, possession, custody, or 

control of . . . [the] Bank . . . without the consent of . . . 

[the] Bank."1

 From the wording of the indictment, it appears 

 1We note that although Oyejola failed to raise the issue in 

this appeal, the indictment charging Oyejola with a violation of 

Code § 18.2-192 was invalid. The bank was not the cardholder; 

the bank was the issuer of the card. See Code § 18.2-192(a). 

The cardholder is "the person . . . named on the face of [the] 

credit card to whom or for whose benefit the credit card is 
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that the Commonwealth sought to prosecute Oyejola for a violation 

of Code § 18.2-192(a). The Commonwealth does not suggest any 

other possibility. 

issued by an issuer." Code § 18.2-192. Thus, a charge that 

Oyejola withheld the card from the bank was not a valid charge 

under Code § 18.2-192(a). 

 Indeed, following the presentation of its evidence, the 

trial judge suggested that the indictment be amended. The 

following colloquy ensued: 

 THE COURT: Let me ask you something before 

you close your case. The charge is that he 

took and withheld a credit card from the 

bank. 

 [PROSECUTOR]: Yes, Your Honor. 

 THE COURT: The card was in the name of an 

individual. 

 [PROSECUTOR]: That's correct, Your Honor. 

Although the individual -- 

 THE COURT: The only thing you would have 

would be circumstantial if you were prepared 

to go forward on that. What I'm asking the 

State is it would be advised amending the 

indictment to include "withholding the card 

from the bank or Karen Soliday." 

* * * * * * * 

 THE COURT: All right. Is the State not 

going to amend the indictment to correspond 

with the facts? I think the Court had the 

right to accept the amendment. 

 [PROSECUTOR]: Yes, sir. I would like to do 

that as well. 

The record contains no evidence beyond this colloquy that the 

indictment was amended. Furthermore, even assuming that the 

amendment was effective, the amendment as stated by the trial 

judge still failed to allege that the conduct occurred "without 

the cardholder's consent." Code § 18.2-192. 
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 We agree with Oyejola and hold that the evidence was 

insufficient to sustain a conviction for violating Code 

§ 18.2-192(a). No evidence proved that Oyejola's conduct 

occurred "without the cardholder's consent." Id. The 

Commonwealth failed to prove whether Karen Soliday, the 

cardholder, is an actual person. Even assuming Karen Soliday is 

a person, the Commonwealth failed to prove that she withheld 

consent for Oyejola to possess her credit card. 

 "[W]here the Commonwealth's evidence as to an element of an 

offense is wholly circumstantial, 'all necessary circumstances 

proved must be consistent with guilt and inconsistent with 

innocence and exclude every reasonable hypothesis of innocence.'" 

Moran v. Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 

(1987) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228 

S.E.2d 563, 567 (1976)). The Commonwealth failed to exclude the 

reasonable hypothesis that Karen Soliday gave Oyejola permission 

to retrieve the credit card from the mailbox. At most, this 

evidence creates merely a suspicion of guilt. However, 

suspicion, alone, is not enough to sustain a conviction. See

Stover v. Commonwealth, 222 Va. 618, 624, 283 S.E.2d 194, 197 

(1981) ("Suspicion . . . no matter how strong, is insufficient to 

sustain a criminal conviction."); see also Bridgeman v. 

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02 (1986). 

 Accordingly, we reverse the conviction and dismiss the 

indictment. 
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 Reversed and dismissed.