Felony Access Device Charges and the Knowledge Element

Attorney Answer

The felony being described requires proof that you knew the card was not authorized and that you intended to defraud. If that is genuinely not true, that element is your defense — but the way people lose these cases is by explaining themselves to investigators first.

The statute is W. Va. Code § 61-3C-13, "Fraud and related activity in connection with access devices." Subsection (c) is the felony: a person who "knowingly, willfully and with intent to defraud" possesses, uses, produces, or traffics in a counterfeit or unauthorized access device is guilty of a felony punishable by a fine up to $10,000, imprisonment up to ten years, or both. Subsection (b) is the lesser misdemeanor — knowing and willful possession without intent to defraud. "Access device" is defined at subsection (a)(1), and an "unauthorized access device" at (a)(3) as one "lost, stolen, expired, revoked, canceled, or obtained without authority."

Read those elements carefully, because they are the whole case. The State has to prove not just that another person's card number ended up connected to your account, but that you knew it was not yours to use and meant to defraud someone. A card number appearing on a utility bill is not, by itself, proof of either.

The prosecution may instead charge W. Va. Code § 61-3-24, "Obtaining money, property and services by false pretenses; disposing of property to defraud creditors; penalties." That section is a felony carrying one to ten years, or up to a year in jail plus a $2,500 fine, where the value is $1,000 or more, and a misdemeanor below that. It also requires knowing, intentional deception. Find out which section is actually charged, because the elements, the thresholds, and the exposure differ.

One West Virginia case is directly useful here. In State v. Scarbro, 229 W. Va. 164, 727 S.E.2d 840 (2012), the defendant was charged with five counts under § 61-3C-13. The jury acquitted him on four of them, and the Supreme Court of Appeals reversed the remaining conviction and remanded for a new trial because the trial court had improperly excluded, under Rule 613(b) of the West Virginia Rules of Evidence, a co-participant's earlier statement that he believed the card was his ex-girlfriend's. The lesson for you is concrete: whether you knew is a question for a jury on the State's proof, and evidence about who actually had the card and what they believed about it is evidence you are entitled to put in front of that jury.

What you can do

1. Stop discussing this — with the utility company, with police, with whoever is telling you felony charges are coming. There is no version of this conversation that helps you and several that hurt. 2. Ask, in writing, exactly what is alleged: which account, which dates, what amounts, and which code section. "It could be felony charges" is not something you can defend against. 3. Preserve the utility billing records showing how the card number became attached to your account — the account setup confirmation, any emails, the payment history, and anything showing who entered the information. 4. Preserve your own bank and card records for the same period, which show what you were actually paying with. 5. If you have never met this person, gather whatever explains the overlap — a shared or prior account at the address, a previous tenant, an autofill, a clerk's data entry, an account someone else set up in your name. 6. Retain a West Virginia criminal defense attorney before any interview. If officers contact you, say you want a lawyer and stop talking. 7. Do not contact the cardholder or anyone connected to her. Any contact will be characterized as witness contact regardless of your intent.