Michael Kelly Puckett v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: January 13, 1998
• Docket: 0060973
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Senior Judge Cole Argued by teleconference

MICHAEL KELLY PUCKETT MEMORANDUM OPINION * BY v. Record No. 0060-97-3 JUDGE SAM W. COLEMAN III JANUARY 13, 1998 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY Porter R. Graves, Jr., Judge Sherwin John Jacobs for appellant.

Eugene Murphy, Assistant Attorney General (Richard Cullen, Attorney General, on brief), for appellee.

Michael Kelly Puckett was convicted by a jury of larceny for

fraudulently removing property subject to a lien from the

premises where Puckett had agreed that it would remain without

the consent of the lienholder in violation of Code § 18.2-115.

On appeal, he contends the evidence was insufficient to support

the conviction. We disagree and affirm the conviction.

When considering the sufficiency of evidence on appeal, we

view the evidence in the light most favorable to the Commonwealth

and grant to it all reasonable inferences fairly deducible

therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218

S.E.2d 534, 537 (1975). We may not disturb the jury's verdict

unless it is plainly wrong or unsupported by the evidence.

Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, * Pursuant to Code § 17-116.010 this opinion is not designated for publication. 721 (1988).

The evidence proved that Puckett purchased a Melroe Bobcat

loader (Bobcat) from Valley Implement Sales, Inc. (Valley) for

use in his construction business. Puckett financed the purchase

on credit from F & M Bank of Massanutten (Bank). He gave Bank a

consumer installment note and entered into a security agreement,

granting to Bank a security interest in the Bobcat and two

trucks. Under the terms of the security agreement, Puckett

promised that the secured property would not be removed from his

Fulks Run address in Rockingham County without the written

permission of Bank, except for the temporary removal as required

for its normal use. Valley recorded the financing statement with

the State Corporation Commission, which listed Valley as the

secured party in the Bobcat, but listed Bank as the assignee of

the security interest. Valley also guaranteed payment of

Puckett's promissory note to Bank, and, in return, Bank paid

Valley the purchase money for the Bobcat. Pursuant to the terms

of the guaranty agreement, Valley accepted responsibility for

collection on the note and for repossession of the collateral in

the event of Puckett's default. By April 1995, Puckett defaulted on his note payments to

Bank, and Valley unsuccessfully attempted to locate Puckett and

the collateral at the Fulks Run address. Eventually, Puckett

contacted Valley's representative, Dennis Rawley, and told Rawley

where he could find the Bobcat. Rawley did not find the Bobcat

- 2 - at the location that Puckett gave.

In August 1995, employees of Bank and Valley located the

Bobcat at a job site outside of Rockingham County. They

confronted Puckett on the site and advised him of their intention

to repossess the Bobcat. Puckett sought to arrange a compromise

and convinced them to call Rawley to discuss his proposal. When

the employees exited the trailer after making the call, they saw

Puckett driving away in a truck and the Bobcat was gone. Subsequently, Bank "called the note" and required Valley, as

guarantor, to pay the balance due on the note. The next day,

Rockingham County Sheriff's Deputy Carter Ritchie asked Puckett

to disclose the location of the Bobcat, but Puckett refused.

Neither Bank nor Valley ever gave Puckett permission to remove

the property from the Fulks Run address.

Code § 18.2-115 provides that any person possessing personal

property subject to a lien who "fraudulently . . . remove[s] such

property from the premises where it has been agreed that it shall

remain, and refuse[s] to disclose the location thereof . . .

without the written consent of the owner or lienor . . . shall be

deemed guilty of the larceny thereof." [T]he fact that such person after demand therefor by the lienholder . . . or his agent, shall fail or refuse to disclose to such claimant or his agent the location of the property, or to surrender the same, shall be prima facie evidence of [a] violation of the provisions of this section.

Id. "[T]he fraud contemplated by Code § [18.2-115] is an act by

- 3 - a debtor intended to deprive a secured creditor of his collateral

by appropriating it to the debtor's own use." Bain v.

Commonwealth, 215 Va. 89, 93, 205 S.E.2d 641, 644 (1974).

Puckett asserts that the evidence was insufficient to show

that he fraudulently removed the secured property because Valley

was not a "lienholder." There is no merit in his argument.

Regardless of whether Valley held a valid lien on the Bobcat,

Bank did. Puckett refused to relinquish the Bobcat to Bank's

employee when he attempted to repossess it in August 1995. Also,

in April 1995, Puckett misrepresented the Bobcat's location to

Valley, who, pursuant to its agreement with Bank, was Bank's

"agent" with respect to collection and repossession of

collateral. This evidence was sufficient to establish a prima facie case that Puckett fraudulently removed the property in

violation of Code § 18.2-115. Puckett offered no evidence to

show that he did not remove the property from the Fulks Run

address for the purpose of depriving the secured party of its

collateral or that he temporarily removed the property as

permitted for its normal use. Puckett refused to disclose the

location of the secured property to Officer Ritchie as late as

the time of his arrest on April 24, 1996. On these facts, the

evidence is sufficient to prove that Puckett fraudulently removed

the property from its agreed location without the consent of the

lienholder in violation of Code § 18.2-115.

The fact that the indictment charged that Puckett

- 4 - fraudulently removed the property "on or about April 10, 1996" is

not fatal and does not render the evidence insufficient to prove

the charged offense. The offense occurred whenever Puckett

fraudulently withheld the property from the lienholder, including

April 10, 1996. Moreover, "the Commonwealth may charge that an

offense occurred on a non-specific date or prove a date other

than that alleged, if the date is not of the essence of the

offense or not shown to be significant." Marlowe v. Commonwealth, 2 Va. App. 619, 622, 347 S.E.2d 167, 169 (1986)

(citing Code § 19.2-226(6)). Larceny is a "continuing offense

and is being committed every moment of the time during which the

thief deprives the owner of the stolen property or its

possession." Hope v. Commonwealth, 10 Va. App. 381, 387, 392

S.E.2d 830, 834 (1990). The Commonwealth's evidence showed that

Puckett's larceny of the secured property occurred continuously

from sometime in April 1995 through April 24, 1996, and,

therefore, sufficiently proved that appellant violated Code

§ 18.2-115 on or about April 10, 1996, as alleged in the

indictment.

For these reasons, we affirm the larceny conviction. Affirmed.

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