Sarka v. Commonwealth

• Decision Date: 23 February 2021
• Docket Number: Record No. 0165-20-1
• Citation: 854 S.E.2d 204,73 Va.App. 56
• Parties: James Daniel SARKA v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

73 Va.App. 56

854 S.E.2d 204

James Daniel SARKA

v.COMMONWEALTH of Virginia

Record No. 0165-20-1

Court of Appeals of Virginia.

FEBRUARY 23, 2021

Rachel E. Wentworth, Assistant Public Defender, for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, O'Brien and Russell

OPINION BY JUDGE MARY GRACE O'BRIEN

Following a bench trial, the court convicted James Daniel Sarka ("appellant") of fraudulently failing to return leased property, in violation of Code § 18.2-118. Appellant contends that because the evidence was insufficient to prove fraudulent intent, the court erred in denying his motion to strike.

BACKGROUND

On appeal, we review the facts in the light most favorable to the Commonwealth, the prevailing party below. Nelson v. Commonwealth, 71 Va. App. 397, 400, 837 S.E.2d 60 (2020).

On September 18, 2018, appellant rented a 650-pound "Genie" material lift, with a retail value of $3,498.14, from United Rentals. The transaction was memorialized in a written rental agreement signed by appellant and Clayton Van Leeuwen, a United Rentals sales representative. Another United Rentals employee, Isaac Tucker, also assisted appellant with the rental.

The rental agreement was introduced at trial. Tucker testified that the customer provides the information on the agreement and it contains "all of the point[s] of contact[ ]" for the customer. The agreement incorrectly identified appellant as "James Sarka Daniel" and reflected that the equipment was "Ordered By: JAMES DANIEL." Appellant's address was listed as "395 CORPORATE BLVD" in Norfolk but did not specify an apartment number. The agreement also included a "Job Site Address" in Virginia Beach and what purported to be appellant's office and cell phone numbers. Van Leeuwen testified that appellant had the opportunity to review the agreement before signing and, if appellant had advised that the address was incorrect, Van Leeuwen would have corrected it.

The agreement specified a "Rental Out" time of 3:00 p.m. on September 18, 2018, and a "Scheduled In" time of 5:00 p.m. on the same date. The "Estimated Am[oun]t" for appellant's rental was $50, with an "Estimated Total" of $53.75 after taxes. The agreement reflected that appellant paid a $55 deposit and was refunded $1.25. Tucker testified that the "Scheduled In" time of 5:00 p.m. on the rental agreement was an "estimated time of return for [the] amount paid" and explained that "[e]stimated times are only times that the customer paid for it [sic] and are supposed to return it." According to Tucker, the rental agreement required appellant to "return [the equipment] before close of business" on September 18, 2018.

The agreement listed the standard daily, weekly, and four-week rental rates as, respectively, $100, $268, and $519. It also provided a "minimum" rate of $50 for any rental period less than one day. Tucker testified that extensions to rental agreements require communication with customers and customers cannot simply retain equipment beyond the "Scheduled In" time and be billed accordingly. He stated that United Rentals’ computer system flags overdue contracts and prompts employees to call customers with late equipment. Specifically, when Tucker was asked, "If a customer holds onto [equipment] longer [than a "Scheduled In" time], you will allow that and just bill them at the greater rate, correct?" he responded, "Incorrect. I call." Tucker testified that although appellant's 5:00 p.m. "Scheduled In" time was "subject to change," any extension would have required communication between appellant and United Rentals.

Appellant did not return the equipment on September 18, 2018, and he did not contact United Rentals to request an extension. Tucker repeatedly attempted to contact appellant by calling "pretty much every number [he] could dig up," including a number appellant had called to obtain the rental payment "from a guy [appellant] referred to as ‘Papa.’ " Tucker was unable to reach appellant. Van Leeuwen likewise called appellant multiple times without success.

On December 4, 2018, Van Leeuwen sent appellant a demand letter by certified mail to the address listed on the rental agreement. The letter stated,

This notice is to inform James Sarka Daniel [sic] on 11/27/18 that equipment that was rented from United Rentals ... on 9/18/18 is well overdue on payment. We have attempted to contact you multiple times to resolve the matter and have not been able to get a hold of you. This equipment will need to be returned in [thirty] days from receipt of this letter[,] and failure to return the equipment within the [thirty] days will force United Rentals to take legal action.

The letter listed appellant's customer number and purported contact information; details about the equipment rented, including its make, model, and serial number; and a contract number with the words "OPEN RENTAL." The letter also contained the following information:

Start: 09/18/18 15:00

Last Return: 09/25/18

Est Return: 10/18/18 17:00

Est Days/Hrs: 30

System: 09/18/18 14:59

Regarding the "Est Return" date of "10/18/18," Van Leeuwen testified that he was "not familiar" with the process for updating the date on a rental agreement in the computer system and indicated that "it may automatically update." He stated that the "system will update dates per the billing cycle" and therefore a new estimated return date did not necessarily reflect a mutual agreement to extend a rental period. He reiterated that a rental period extension would not happen automatically and United Rentals "would have to get [the request] from [the customer]."

The demand letter was returned to United Rentals marked "Return to Sender / Insufficient Address / Unable to Forward." Someone other than appellant returned the equipment to United Rentals during the summer of 2019. Appellant, who only paid the original charge of $53.75, never paid to extend the rental.

At the close of the Commonwealth's case, appellant moved to strike the evidence. The court denied his motion. Appellant then attempted to demonstrate that he never received the demand letter by offering testimony from his aunt, who stated that on September 18, 2018, appellant lived with her at "295 Corporate Boulevard, apartment 308," not the address appellant provided in the rental agreement. The court subsequently denied appellant's renewed motion to strike. It found that the equipment was rented for a defined period and was to be returned by September 18, 2018, and although that rental period could have been extended, it would have required "communication between [appellant] and [United Rentals]," which never occurred. Noting that appellant only made an initial $55 payment and the equipment was returned by someone else "almost a year later," the court found appellant guilty of fraudulently failing to return the rental property.

ANALYSIS

Appellant contends that the evidence was insufficient to support his conviction. "When the sufficiency of the evidence is challenged on appeal, [this Court] must ‘examine the evidence that supports the conviction and allow the conviction to stand unless it is plainly wrong or without evidence to support it.’ " Austin v. Commonwealth, 60 Va. App. 60, 65, 723 S.E.2d 633 (2012) (quoting Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d 733 (2011) ); see also Code § 8.01-680. This Court "review[s] the evidence in the ‘light most favorable’ to the Commonwealth, the prevailing party in the trial court."

Nelson, 71 Va. App. at 400, 837 S.E.2d 60 (quoting Vasquez v. Commonwealth, 291 Va. 232, 236, 781 S.E.2d 920 (2016) ).

"This deferential standard ‘requires [the Court] to "discard the evidence of the accused in conflict with that of the Commonwealth[ ] and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn" ’ from that evidence." Williams v. Commonwealth, 71 Va. App. 462, 483-84, 837 S.E.2d 91 (2020) (second alteration in original) (quoting Vasquez, 291 Va. at 236, 781 S.E.2d 920 ). Viewing the evidence and inferences in this light, "[t]he relevant issue on appeal is ... ‘whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " Lambert v. Commonwealth, 298 Va. 510, 515, 840 S.E.2d 326 (2020) (second alteration in original) (quoting Pijor v. Commonwealth, 294 Va. 502, 512, 808 S.E.2d 408 (2017) ). Additionally, "[t]he trial court's conclusions as to questions of law are subject to de novo review." Brown v. Commonwealth, 68 Va. App. 44, 51, 802 S.E.2d 190 (2017).

Code § 18.2-118 provides in pertinent part as follows:

A. Whenever any person is in possession or control of any personal property, by virtue of or subject to a written lease of such property, ... and such person so in possession or control shall, with intent to defraud, ... fail to return such property to the lessor thereof within [thirty] days after expiration of the lease or rental period for such property stated in such written lease, he shall be deemed guilty of the larceny thereof.

B. The fact that such person signs the lease or rental agreement with a name other than his own, or fails to return such property to the lessor thereof within [thirty] days after the giving of written notice to such person that the lease or rental period for such property has expired, shall be prima facie evidence of intent to defraud. For purposes of this section, notice mailed by certified mail and addressed to such person at the address of the lessee stated in the lease[ ] shall be sufficient giving of written notice under this section.

Appellant argues that the evidence was insufficient to prove fraudulent intent for two reasons. First, he contends that the Commonwealth did not establish the rental agreement's expiration date, and therefore his failure to return the equipment was a valid exercise of his contractual right to keep the property and pay the accrued charges...