                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Annunziata
Argued at Salem, Virginia


DELANO COMPTON, S/K/A
 WILLIAM LUTHER DELANO COMPTON
                                                 OPINION BY
v.        Record No. 1119-95-3           JUDGE ROSEMARIE ANNUNZIATA
                                               JULY 30, 1996
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF SMYTH COUNTY
                  Charles H. Smith, Jr., Judge
          Thomas R. Scott (Street, Street, Street,
          Scott & Bowman, on brief), for appellant.

          Steven A. Witmer, Assistant Attorney General
          (James S. Gilmore, III, Attorney General, on
          brief), for appellee.



     Following a bench trial, appellant, William Luther Delano

Compton, was convicted of fraudulent conversion of property in

violation of Code § 18.2-115, sentenced to three years

imprisonment, all of which was suspended, and placed on three

years probation.   Appellant contends that his signature did not

appear on the lease agreement and, therefore, the evidence is

insufficient to support his conviction.    We disagree and affirm.

                                 I.

     When considering the sufficiency of the evidence on appeal

in a criminal case, this Court views the evidence in a light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.     Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).     On

review, this Court does not substitute its own judgment for that
of the trier of fact.   Cable v. Commonwealth, 243 Va. 236, 239,

415 S.E.2d 218, 220 (1992).   The trial court's judgment will not

be set aside unless it appears that the judgment is plainly wrong

or without supporting evidence.   Code § 8.01-680; Josephs v.

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en

banc) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987)).

     Timberland Log and Lumber, Inc., d/b/a/ Timberland of

Saltville, Timberland Log and Lumber ("Timberland"), and Compton

Logging, Inc. ("Compton Logging"), entered a lease agreement in

which Timberland agreed to lease to Compton Logging a sawmill and

certain related equipment.    The lease provided, inter alia, that
(1) Timberland would continue to own the leased equipment until

the lease terms had been fully complied with; and (2) Compton

Logging would not sell or otherwise part with possession or

control of the equipment without Timberland's written consent.

     The court found, and appellant conceded at trial, that

appellant acted as Compton Logging's agent.   Timberland's former

secretary and treasurer, Ralph Williams, testified that appellant

negotiated the terms of the lease on behalf of Compton Logging.

Williams' testimony was corroborated by Timberland's former

president, Vencil Minton.    Williams further testified that the

lease embodied the terms of the agreement reached with appellant,

that appellant was present when the lease was signed, and that

appellant directed that the lease be signed on behalf of Compton



                                - 2 -
Logging.

     After Compton Logging fell behind in its lease payments,

Williams brought the arrearages to appellant's attention.

Appellant assured him "something would be done."   Upon his return

to the sawmill, however, Williams found it abandoned and some of

the leased items, including a bulldozer and a loader, were later

found missing.   During his investigation of the case, Officer

Danny Waddell of the Smyth County Sheriff's Office took a

statement from appellant.   Appellant stated that both the

bulldozer and the loader had been sold or traded to an equipment

company in West Virginia.   He further stated, "I traded these

pieces of equipment about October or November of last year."

With respect to certain trailers and trucks leased to Compton

Logging, appellant stated, "They were junk when I bought or

leased them."    Williams denied that Timberland had given

permission to sell the bulldozer and loader.   Moreover, no

evidence of written consent to sell the equipment as required by

the terms of the lease was presented.
                                 II.

     Code § 18.2-115 provides in part:
               Whenever any person is in possession of
          any personal property, including motor
          vehicles or farm products, in any capacity,
          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 sell,
          pledge, pawn or 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



                                - 3 -
            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, or, if such writing be a deed
            of trust, without the written consent of the
            trustee or beneficiary in such deed of trust,
            he shall be deemed guilty of the larceny
            thereof.


Appellant does not dispute that sufficient evidence supports the

trial court's finding that he fraudulently sold the equipment in

question.   However, appellant contends that because the evidence

fails to establish that he signed the lease agreement as required

under Code § 18.2-115, his conviction must be reversed.     We

disagree with appellant's reasoning and affirm the trial court on

the following grounds.
     It is well settled that where a corporation's business

"involves a violation of the law, the correct rule is that all

who participate in it are liable."      Crall v. Commonwealth, 103

Va. 855, 859, 49 S.E. 638, 640 (1905); Hays v. Commonwealth, 55

S.W. 425, 426 (Ky. 1900) ("It is evident that a corporation, if

in fact it engaged in [illegal conduct] through its agent or

servant, would be liable to indictment and conviction . . . and

likewise the agent so violating the law might be indicted and

punished"); City of Wyandotte v. Corrigan, 10 P. 99, 102 (Kan.
1886) ("It is immaterial [with respect to criminal liability]

whether appellant was acting for himself or for the company").

Accordingly, corporate agents may not use the corporate entity to

shield themselves from criminal liability for their own acts.

See Bourgeois v. Commonwealth, 217 Va. 268, 274, 227 S.E.2d 714,



                                - 4 -
718 (1976) ("[A]n officer cannot avoid criminal responsibility

for an illegal act on the ground that it was done . . . through

the instrumentality of the corporation which he controls and

dominates and which he has employed for that purpose); United

States v. Sherpix, Inc., 512 F.2d 1361, 1372 (D.C. Cir. 1975);

State v. Childers, 415 S.E.2d 460, 465-66 (W. Va. 1992); State v.

Lang, 417 S.E.2d 808, 809-10 (N.C. Ct. App.), review denied, 421

S.E.2d 158 (N.C. 1992); State v. Seufert, 271 S.E.2d 756, 759

(N.C. Ct. App. 1980), review denied, 276 S.E.2d 289 (1981); State
v. Louchheim, 244 S.E.2d 195, 203-04 (N.C. Ct. App. 1978), aff'd,

250 S.E.2d 630 (N.C.), cert. denied, 444 U.S. 836 (1979); see

generally 1 Kathleen F. Brickey, Corporate Criminal Liability

§§ 5:01-5:02 (2d ed. 1991); 1 Wayne R. LaFave & Austin W. Scott,

Jr., Substantive Criminal Law § 3.10 (1986); 18B Am. Jur. 2d

Corporations § 1893 (1985); 19 C.J.S. Corporations §§ 551-552

(1990).

     "`[A] corporation obviously acts, and can act, only by and

through its member agents[,] and it is their conduct which

criminal law must deter and those agents who in fact[] are

culpable.'"   Childers, 415 S.E.2d at 465 (quoting Miller v.

State, 732 P.2d 1054, 1059 (Wyo. 1987)).   "No doctrine of agency

law would permit corporate agents to immunize themselves from

criminal responsibility for their own acts by the simple

expedient of incorporating."   1 Brickey, supra, § 5:02, at 152

(citing State v. Cooley, 206 S.W. 182 (Tenn. 1918)).   "If the




                               - 5 -
individual personally engaged in the criminal conduct or directed

or permitted its commission, it is no defense that the offense

was performed on behalf of the enterprise."    1 LaFave & Scott,

supra, § 3.10, at 361; see also Bourgeois, 217 Va. at 274, 227

S.E.2d at 718; Lang, 417 S.E.2d at 810 (rejecting defendant's

contention that principles concerning liability extend only to

corporate share-holders); Crall, 103 Va. at 859, 49 S.E. at 640;

1 Brickey, supra, §§ 5:01, 5:02, at 148-53; 1 LaFave & Scott,
supra, § 3.10, at 361; Childers, 415 S.E.2d at 466; Seufert, 271

S.E.2d at 759.

     Here, the evidence established that appellant exercised

significant control over Compton Logging and either directed its

acts or personally and directly engaged in acts which violated

Code § 18.2-115.   Appellant alone dealt with the Timberland

officers in negotiating the lease.     Appellant directed the lease

to be signed on behalf of Compton Logging.    Appellant admitted to

Officer Waddell that he leased the missing trailers and trucks.

Appellant gave assurances to the Timberland officers that the

late lease payments would be made.     And, appellant admitted to

Officer Waddell that he traded the bulldozer and loader to the

West Virginia equipment company.   The evidence proved that

appellant sold the equipment in contravention of that lease and

that he was aware the lease terms required written consent from

Timberland before the equipment could be sold.    Although the

evidence was in dispute as to whether appellant had obtained such



                               - 6 -
consent, that dispute was resolved by the trier of fact against

appellant.

     In short, although appellant's signature does not appear on

the lease, each element necessary to the commission of the crime

was committed either personally by appellant or by the

corporation at appellant's direction. 1

     Accordingly, appellant's conviction is affirmed.

                                                         Affirmed.




     1
          The dissent's focus on appellant's failure to
personally sign the lease ignores other material evidence in the
case which established that the corporate lease was signed solely
at appellant's direction. The dissent fails to address the
applicability of established principles in Virginia law, under
which liability is imputed to an agent for criminal corporate
acts performed at the agent's direction and in his stead.
     The dissent reasons that, because Code § 18.2-118 excludes
the requirement of an agreement by the accused in writing,
appellant should have been prosecuted under that section and, by
extension, a conviction under Code § 18.2-115 is necessarily
precluded. The reliance placed on Code § 18.2-118 is misplaced.
 First, Code
§ 18.2-115 addresses the offense at issue here, and appellant was
properly prosecuted under it; appellant's conviction arose from a
violation of the rights of a secured creditor. See Bain v.
Commonwealth, 215 Va. 89, 93, 205 S.E.2d 641, 644 (1974) (the
offense contemplated by this section arises when a debtor
deprives "a secured creditor of his collateral by appropriating
it to the debtors' own use"). Second, the dissent fails to
recognize that, notwithstanding the absence of an agreement
signed by the accused, prosecution under Code § 18.2-118 also
requires an analysis premised on Virginia's corporate agent
liability principles. Under the facts of this case, the "person"
in which the terms of the lease place possession or control of
the equipment, was the corporation, not appellant. See Code §§
18.2-118(a) and (b).




                               - 7 -
Benton, J., dissenting.

     William Luther Delano Compton was convicted of violating

Code § 18.2-115, which reads in pertinent part as follows:
             Whenever any person is in possession of
          any personal property, including motor
          vehicles or farm products, in any capacity,
          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 sell,
          pledge, pawn or 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, or, if such writing be a deed
          of trust, without the written consent of the
          trustee or beneficiary in such deed of trust,
          he shall be deemed guilty of the larceny
          thereof.

Id. (emphasis added).

     To prove a violation of the statute, the Commonwealth had to

prove that Compton "agreed in writing" that title to the property

was to remain with Timberland or that Compton "ha[d] given a

lien" on the equipment to Timberland.   The evidence proved

neither.

     The evidence proved Compton Logging, Inc., a Virginia

Corporation, entered into a written lease agreement with

Timberland.   Pursuant to the agreement, Compton Logging, Inc.

leased a sawmill and various equipment and other property.    Under

the agreement, Compton Logging, Inc. had "the right to sell or

trade equipment . . . [upon] prior written approval of



                               - 8 -
[Timberland] and such approval [could] not be unreasonably

withheld."   The agreement further stated that "[u]ntil all of the

terms of this lease are complied with each item of leased

equipment shall be at all times the sole, exclusive property of

[Timberland]."   The agreement did not "prohibit the use of the

equipment by any manager or managing agent retained by [Compton

Logging, Inc.] to manage the premises in which the equipment

shall be located."   The agreement was signed on behalf of Compton

Logging, Inc. by "Margaret R. Compton, by M.R. Scott, her

attorney-in-fact."   Under the signature line was the designation,

"President/Vice President."   The corporate seal of Compton

Logging, Inc. was attested by "Mary R. Scott," the corporation's

secretary.
     The evidence proved that Margaret R. Compton, the

"President/Vice President," was Compton's wife.   No evidence in

this record proved that Compton was an employee, officer, or

director of Compton Logging, Inc.   In addition, no evidence

proved that Compton had the authority to sign the lease, direct

that the lease be signed, or approve the execution of the lease.

More significant, however, the evidence undisputably proved that

Compton did not sign the lease agreement, any writing concerning

the title or ownership of the equipment, or any lien regarding

the equipment.

     Furthermore, no evidence proved that any person that signed

the lease fraudulently sold, pledged, pawned or removed the




                               - 9 -
equipment.    Indeed, no evidence proved that the corporation

engaged in a criminal act.

     Acknowledging that "[Compton's] signature does not appear on

the lease," the majority nonetheless concludes that "each element

necessary to the commission of the crime was committed either

directly by [Compton] or by the corporation at [Compton's]

direction."    The majority's exhaustive discussion of criminal

liability of corporate agents fails to explain the basis for

imposing liability under Code § 18.2-115 when Compton,

personally, had not agreed by any writing, an essential element

proscribed by the statute, to do the act that the statute

specifies.
     The legislature has specifically addressed Compton's conduct

in Code § 18.2-118.    That statute reads 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, except property described in
             § 18.2-117, and such person so in possession
             or control shall, with intent to defraud,
             sell, secrete, or destroy the property, or
             dispose of the property for his own use, or
             fraudulently remove the same from the
             Commonwealth without the written consent of
             the lessor thereof, or fail to return such
             property to the lessor thereof within ten
             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 ten days after the



                                - 10 -
           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.

           (c) The venue of prosecution under this
           section shall be the county or city in which
           such property was leased or in which such
           accused person last had a legal residence.


Simply put, the Commonwealth prosecuted Compton under the wrong

statute.   The majority's decision sanctions and compounds the

error.
     For these reasons, I dissent and would reverse the

conviction.




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