COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Coleman
Argued at Richmond, Virginia
CHARLES L. LANDES
OPINION BY
v. Record No. 0329-01-2 JUDGE SAM W. COLEMAN III
MARCH 26, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Daniel R. Bouton, Judge
John R. Maus for appellant.
Leah A. Darron, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
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
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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
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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 about seven months
earlier. Call confirmed that Landes had taken the skid loader
to Pennsylvania and "traded [it] in" for a $2,500 credit towards
the purchase of other equipment.
At trial, Landes admitted he purchased the skid loader from
Gilbert and financed it through "John Deere Credit." Landes
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acknowledged that he defaulted in paying for the skid loader.
Landes claimed he attempted to return the skid loader to Gilbert
after it burned, but Gilbert refused to accept it. Landes
testified that he then moved the burned skid loader to
Pennsylvania because he could not keep burned equipment in
Prince William County and it no longer had any value. At the
sentencing hearing, Landes introduced evidence that the salvage
value of the burned loader was $950.
"The credibility of the witnesses and the weight accorded
the evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995). The Commonwealth's evidence proved that Landes
purchased the skid loader and financed the purchase price with a
security agreement through John Deere with full recourse against
Gilbert Implement, Inc. In the security agreement, Landes
agreed to keep the equipment in Prince William County and upon
default to deliver it to the lienholder. Upon default, Landes
refused to surrender the skid loader when Gilbert demanded it or
to disclose its location. Landes admitted he was in default on
the loan and that he had moved the skid loader from Prince
William County to Pennsylvania, without Gilbert's permission,
where he sold it for credit on the purchase of other equipment.
While Landes contends the burned equipment was worth little or
no value, the evidence proved he received a $2,500 credit for
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it. In either event, the evidence proved it had value and that
Landes was required to deliver it to the lienholder upon demand,
to keep it in Prince William County, and not to remove it
without written consent. Accordingly, Landes violated the
provisions of the security agreement and of Code § 18.2-115.
The evidence was competent, was not inherently incredible, and
was sufficient to prove beyond a reasonable doubt that appellant
fraudulently converted the property by removing it from Prince
William County without permission and disposing of the secured
property in violation of the security interest.
II. Restitution
Code § 19.2-305.1(C) provides that "[a]t the time of
sentencing, the court, in its discretion, shall determine the
amount to be repaid by the defendant." Code § 19.2-305.2
permits a sentencing court to order restitution, if the return
of the property is impossible or impractical, by paying "an
amount equal to the greater of the value of the property at the
time of the offense or the value of the property at the time of
sentencing." "The burden of proving the amount of the loss for
purposes of restitution is by the preponderance of the
evidence." Alger v. Commonwealth, 19 Va. App. 252, 258, 450
S.E.2d 765, 768 (1994) (citations omitted).
The appellant contends the value of the burned skid loader
was no more than $950 and that under Code § 19.2-305.2 the court
could not require that he pay restitution greater than that
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amount. The initial contract price for the equipment that
Landes purchased was in the range of $33,000, with approximately
one-half of that amount representing the price of the skid
loader. The balance charged back to Gilbert upon default was
$15,002.69, with the balance owing on the skid loader
representing one-half of that value, or approximately $7,500.
In the pre-sentence report, Gilbert indicated that the value of
the skid loader was $7,500.
"[T]he legislature intended that the victim impact
statement be used by the trial judge to determine the amount of
restitution." Id. at 259, 450 S.E.2d at 769. Furthermore, the
restitution statute, Code § 19.2-305.2, provides that where
return of the property is impossible or impractical the amount
of restitution shall be "the greater of the value of the
property" at the time of the offense or at sentencing. The
trial court did not abuse its discretion by determining that the
value of property, which was fraudulently converted in violation
of a security agreement, was the unpaid secured balance owed on
the equipment, rather than the diminished value of damaged or
destroyed property.
For these reasons, we affirm Landes's conviction for
fraudulent conversion of property and affirm the restitution
order.
Affirmed.
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