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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