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. 
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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 
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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 
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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 
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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.