Landes v. Com., Record No. 0329-01-2.

• Decision Date: 26 March 2002
• Docket Number: Record No. 0329-01-2.
• Citation: 37 Va. App. 710,561 S.E.2d 37
• Court: Virginia Court of Appeals
• Parties: Charles L. LANDES v. COMMONWEALTH of Virginia.

561 S.E.2d 37

37 Va. App. 710

Charles L. LANDES v. COMMONWEALTH of Virginia.

Record No. 0329-01-2.

Court of Appeals of Virginia, Richmond.

March 26, 2002.

John R. Maus, Louisa, for appellant.

Leah A. Darron, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., ANNUNZIATA, J., and COLEMAN, Senior Judge.

COLEMAN, Senior Judge.

The appellant, Charles L. Landes, contends the evidence is insufficient to support his conviction for fraudulent conversion of a piece of farm machinery for which he had executed a security agreement at the time of its purchase. He further contends that the trial court erred by requiring as a condition of the suspended sentence that he make restitution in the amount of $7,500, the unpaid secured purchase price, rather than $950, the actual value of the damaged machinery. Finding the evidence sufficient and the restitution amount proper, we affirm the trial court's judgment.

I. Sufficiency of the Evidence

Code § 18.2-115 provides, in pertinent part:

Whenever any person is in possession of any personal property ... the title or ownership of which he has agreed in writing shall be or remain in another, or on which he has given a lien, and such person so in possession shall fraudulently ... remove such property from the premises where it has been agreed that it shall remain, and refuse to disclose the location thereof, or otherwise dispose of the property or fraudulently remove the same from the Commonwealth without the written consent of the owner or lienor or the person in whom the title is ... he shall be guilty of larceny thereof.

Code § 18.2-115 further provides that a lienor's refusal to disclose the location of the property upon demand of the secured party or lienholder constitutes prima facie evidence of a violation.

"On appeal, `we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997) (citation omitted).

So viewed, the evidence proved that Landes purchased several pieces of farm machinery from Gilbert Implement, Inc., a farm equipment company operated by George Gilbert. Among the items Landes purchased was a 4610 Gehl skid loader with a diesel engine. Landes financed the purchase through "John Deere Credit" with a "John Deere finance contract," admitted into evidence as Commonwealth's Exhibit # 1. The finance contract did not contain the terms of the security agreement. However, Gilbert testified that Landes executed a security agreement and that the terms of the security agreement were "equivalent" to those set forth in the security agreement form that was currently being used by John Deere, a copy of which was introduced into evidence as Commonwealth's Exhibit # 2. Commonwealth's Exhibit # 2 was admitted to prove the terms of the security agreement signed by Landes and the security interest retained by John Deere and Gilbert Implement, Inc. Under the terms of the security agreement, the skid loader was to be kept at Landes's farm in Prince William County. The security agreement provided that upon default by Landes, John Deere would have full recourse against Gilbert Implement, Inc.

At some point after Landes financed the purchase of the skid loader, he suffered financial reversals and declared bankruptcy. As a result of the bankruptcy, he was able to reschedule the payments so that he could retain the skid loader. Under the recourse provisions of the security agreement, if Landes failed to make the payments, Gilbert had to pay "John Deere Credit" and then Gilbert "step[s] into their place in terms of rights, remedies." During July 1999, "John Deere Credit" notified Gilbert that Landes had failed to make his payments and that they were going to charge Landes's debt of $15,002.69 to Gilbert, which they did on August 16, 1999.

Thereafter, Gilbert attempted unsuccessfully to contact Landes and repossess the equipment. Eventually, Gilbert spoke with Landes and informed him that he was repossessing the equipment. Landes responded, "No way, I'm not giving you the equipment." Gilbert informed Landes that his only option was to pay the balance owed for the equipment. Landes stated he would "see" what he could do. When Gilbert next contacted Landes, Landes stated he "couldn't pay or wouldn't pay at that time." The third time Gilbert contacted Landes, Landes said the skid loader "had caught fire and burned." Gilbert was unsuccessful in locating the skid loader on Landes's farm in Prince William County, where the security agreement specified it was to be located. Landes did not obtain permission from John Deere or Gilbert to move the skid loader to any other location. As of the trial date, Landes had refused to tell Gilbert the location of the equipment.

In a statement to Investigator Dan Call in September 1999, Landes claimed the skid loader had burned and that he had sold it for $200. Landes told Call he did not recall to whom he had sold the loader or how he had transported it. Landes provided no documentation of the sale. In later interviews with Call in December 1999, Landes admitted he had taken the skid loader to a farm equipment dealer in Pennsylvania...