Robert Meredith Otey, Jr. v. Commonwealth of Virginia ( 2020 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Decker, Judges O’Brien and AtLee
Argued at Richmond, Virginia
PUBLISHED
ROBERT MEREDITH OTEY, JR.
OPINION BY
v. Record No. 0556-19-2 JUDGE RICHARD Y. ATLEE, JR.
APRIL 7, 2020
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NEW KENT COUNTY
B. Elliott Bondurant, Judge
Richard G. Collins (Collins & Hyman, PLC, on brief), for appellant.
Maureen E. Cummins, Assistant Attorney General (Mark R.
Herring, Attorney General; Timothy J. Huffstutter, Assistant
Attorney General, on brief), for appellee.
Robert Meredith Otey, Jr. appeals his conviction for unauthorized use of a motor vehicle
in violation of Code § 18.2-102. He argues on appeal that the evidence was insufficient to
support his conviction “because the owner did not place limits on the location and timing of the
permitted possession and use.” Additionally, he argues that the evidence of value was
insufficient. Because we find the evidence sufficient, we affirm the decision of the circuit court.
I. BACKGROUND
On appeal, we view the evidence in the light most favorable to the Commonwealth, the
prevailing party below, and afford to it all reasonable inferences from that evidence. Yerling v.
Commonwealth, 71 Va. App. 527, 530 (2020).
On January 13, 2018, William Jones purchased a 2001 GMC Yukon from a seller in
Pennsylvania. Jones, along with Kenneth Hazelwood and Otey, drove to Pennsylvania to pick
up the vehicle. Jones asked Otey to repair the brakes and change the brake lines. Otey agreed to
do the repairs, and he drove the vehicle back to his rented garage in Eltham, Virginia. Jones
provided the parts. There was no written agreement setting out terms of the arrangement.
Beyond asking Otey to repair the brakes, Jones did not place any express limits on Otey’s
possession of the vehicle. Nor did he authorize Otey to use the vehicle for any other purpose.
Jones was unable to reach Otey when he attempted to contact him four days later. When
Jones drove by Otey’s garage in Eltham, neither Otey nor the vehicle were there. Jones called
the police a few days later and reported the vehicle missing.
On January 21, 2018, Otey called Jones and told him that the fuel pump on the vehicle
was “burnt out” and that Jones needed to pay him $500 to get the vehicle back. Otey also told
Jones the location of the vehicle.
Otey spoke with the police on January 24, 2018. He informed them that the vehicle was
in White Marsh and that he had driven the vehicle there to tow his own vehicle. He also told
them that he would pay to tow the vehicle to Jones. Jones eventually recovered the vehicle from
Otey’s mother’s residence, where Otey had the vehicle towed.
At trial, Jones testified that, in addition to other damage, the rear bumper was “bent down
about three to four inches” and that the frame was also bent. He stated that the damage had not
been there when Otey took possession of the vehicle. Jones also testified about the value of the
vehicle. As the owner, he figured the vehicle was worth $5,000, though he admitted he did not
pay that amount for it.1
1
Jones initially testified that the vehicle was worth $3,000 to $5,000 if the brakes were
repaired. The circuit court sustained defense counsel’s objection that the value cannot be based
on things that have not yet happened. Jones then stated that the vehicle was worth $5,000 based
on similar vehicles he had seen while looking for a new vehicle. The circuit court sustained
defense counsel’s objection that the value could not be based on other vehicles. The
Commonwealth then asked Jones, “In your opinion, as the owner, what’s the value of the vehicle
when you purchased it?” Jones answered, “I figured $5,000.” There were no further objections.
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Hazelwood testified for the defense, confirming that Jones had asked Otey to repair the
brakes and replace the brake lines. Hazelwood was also qualified as an expert in auto mechanics
and brake repairs. He explained that brake lines need to be bled after being replaced, which
requires a test drive. He stated that the test drive needs to be “a ways,” but he admitted that you
did not need to drive the vehicle twenty or thirty miles.
Otey testified in his own defense. He testified that Jones had asked him to fix the brakes
and to drive the vehicle to see if anything else needed to be fixed. Otey stated that he had
changed the brake lines and then “drove the truck up the road to test it out, check out my vehicle
that was broke down in White Stone to make sure it was all right, and I was bleeding the air out
of the system and stuff,” and then the vehicle broke down. Otey admitted that he intended to tow
his truck back to Eltham with Jones’ vehicle, though he claimed that the vehicle broke down
before he was able to tow his truck. He also conceded that he did not have to drive the vehicle to
White Stone to test the brakes.
The circuit court concluded that Otey’s testimony was inherently incredible.2 It found
that Otey’s use of the vehicle to tow his own vehicle was outside the scope of Jones’ consent to
repair and replace the brake lines. Consequently, the circuit court convicted Otey of felony
unauthorized use of a vehicle. Otey now appeals to this Court.
II. ANALYSIS
A. Standard of Review
“We apply a deferential standard of review to challenges based on the sufficiency of the
evidence, and the decision of ‘[t]he lower court will be reversed only if that court’s judgment is
plainly wrong or without evidence to support it.’” Cartagena v. Commonwealth, 68 Va. App.
2Otey testified that Jones’ vehicle broke down before he could tow his vehicle. Based on
the damage to the vehicle, however, the circuit court had no doubt that Otey did in fact tow his
vehicle.
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202, 207 (2017) (alteration in original) (quoting Allen v. Commonwealth, 287 Va. 68, 72
(2014)). “[T]he relevant question is, upon review of the evidence in the light most favorable to
the prosecution, whether any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Smith v. Commonwealth, 296 Va. 450, 460 (2018) (quoting
Commonwealth v. Perkins, 295 Va. 323, 327 (2018)).
B. Unauthorized Use
Otey contends the evidence was insufficient to show that he acted without Jones’ consent.
A conviction for unauthorized use of a vehicle under Code § 18.2-102 “requires proof of
use without the consent of the owner with intent to deprive the owner of possession temporarily,
but without intent to steal.” Overstreet v. Commonwealth, 17 Va. App. 234, 236 (1993).
Though Otey initially had consent to possess Jones’ vehicle, the offense may be “committed by
one whose original possession of the vehicle was lawful, but who subsequently uses the vehicle
for his own purposes without the consent of the owner.” Id. at 237 (quoting 7A Am. Jur. 2d
Automobiles and Highway Traffic § 349 (1980)).
In Tucker v. Commonwealth, 268 Va. 490, 492 (2004), a vehicle’s owner gave Tucker
permission to use the vehicle to go to a restaurant and a store. Tucker was supposed to return the
car afterward, but he kept the car for several days. Id. The owner saw Tucker driving his
vehicle, and Tucker sped off when the owner tried to approach him. Id. The Supreme Court
concluded that there was “no merit in Tucker’s contention that he could not be convicted of
unauthorized use because the vehicle owner did not specify the time or date when the owner’s
consent would terminate” because “Code § 18.2-102 contains no such requirement.” Id. at
494-95. The Court held that “the evidence plainly allowed the factfinder to conclude that the
owner’s permission to let Tucker use the car to go to a restaurant and a store did not extend to a
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period of several days afterward in which the car was removed from the owner’s lawful
possession.” Id. at 495.
Otey contends that since Jones did not place a specific limit on the period of his
possession, his use was not unauthorized. He also argues he did not intend to temporarily
deprive Jones of his ownership.
Though Tucker dealt with a limit on the period of possession, Code § 18.2-102 is not
limited to duration. The statute can also be violated where an individual is given possession of a
vehicle for a limited purpose, and his use of the vehicle exceeds that purpose. See Overstreet, 17
Va. App. at 236; Huber v. Commonwealth, No. 1926-04-2 (Va. Ct. App. Oct. 4, 2005) (finding
that defendant exceeded the permission he had received when he used the vehicle for his own
purposes).3 As we have previously noted, “where the owner gives consent to . . . possession for
a limited purpose, the expiration of that qualification creates a constructive revestment of
possession in the true owner with ‘bare charge or custody’ in the other person. A violation of the
owner’s possessory right constitutes a trespassory taking.” Overstreet, 17 Va. App. at 236.
Like the Court in Tucker, we find no merit to Otey’s argument that Jones did not place
express limitations on Otey’s possession of the vehicle. “[T]he scope of the authorization does
not need to be expressly stated as long as the limitation is amply clear to the appellant, based on
the totality of the circumstances.” Huber, No. 1926-04-2, at *4. Jones gave Otey possession of
his vehicle on the understanding that Otey would repair and replace the brake lines. Otey agreed
to do the repairs. Though replacing brakes requires a test drive, both Otey and Hazelwood, the
defense expert, conceded that the twenty- to thirty-mile drive to White Stone was not necessary.
3
“Unpublished opinions of this Court, while having no precedential value, are
nevertheless persuasive authority.” Samartino v. Fairfax Cty. Fire and Rescue, 64 Va. App. 499,
508 n.2 (2015).
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Furthermore, Otey admitted that he intended to use Jones’ vehicle to tow his own vehicle.
Despite Otey’s denials, the circuit court found that the damage to Jones’ vehicle indicated Otey
did in fact tow his vehicle with Jones’ vehicle. Regardless of whether he did tow it or was
simply on the way, permission to use a vehicle for one purpose is not implied consent to take the
vehicle to an unknown destination for a purpose not beneficial to the owner and unrelated to the
purpose for which possession of the vehicle was given. Bass v. State, 138 N.W.2d 154, 157
(Wis. 1965). Jones gave his vehicle to Otey to repair the brakes. Otey drove the vehicle twenty-
to thirty-miles more than necessary to use the vehicle for a personal purpose. The evidence
allowed the fact finder to conclude that Jones’ consent to let Otey possess the vehicle to fix the
brakes did not extend to allowing Otey to use the vehicle to tow his own vehicle.
C. Value
Otey argues that the evidence of value was insufficient. Code § 18.2-102 distinguishes
between felony and misdemeanor unauthorized use of a vehicle based on the value of the
vehicle. If the value of the vehicle is “less than $200” the offense is a misdemeanor.4 Code
§ 18.2-102. Otherwise, the offense is punished as a felony. Id. “Where the value of a thing
‘determines the grade of the offense, the value must be alleged and the Commonwealth must
prove the value to be the statutory amount.’” Dimaio v. Commonwealth, 46 Va. App. 755, 763
(2005) (quoting Wright v. Commonwealth, 196 Va. 132, 139 (1954)).
Otey acknowledges that a lay witness may provide an opinion as to value, but he argues
that Walls v. Commonwealth, 248 Va. 480, 483 (1994), requires the witness to have sufficient
familiarity with the property. He contends that Jones did not provide an admissible foundation
for his testimony. The rule in Walls, however, applies to the testimony of a “nonexpert, who is
4
The version of Code § 18.2-102 in effect at the time of the offense used $200 as the
value that distinguished a felony from a misdemeanor. The current version of the statute, in
effect as of July 1, 2018, sets the value at $500.
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not the owner of the personal property in question.” 248 Va. at 483. The witness in Walls was
not the owner of the property.
In Virginia,
[i]t is generally recognized that the opinion testimony of the owner
of property, because of his relationship as owner, is competent and
admissible on the question of the value of such property, regardless
of his knowledge of property values. It is not necessary to show
that he was acquainted with the market value of such property or
that he is an expert on values. He is deemed qualified by reason of
his relationship as owner to give estimates of the value of what he
owns.
King v. King, 40 Va. App. 200, 212 (2003) (quoting Haynes, Executrix v. Glenn, 197 Va. 746,
750 (1956)).
At trial, Jones testified without objection that, as the owner, he thought that the value of
the vehicle was $5,000. As the owner, Jones was qualified to give an estimate. See id. Thus,
the circuit court was permitted to consider the testimony in determining whether the value of the
vehicle exceeded the statutory amount. The $5,000 value far exceeds the statutory requirement.
Accordingly, the evidence was sufficient to prove the value of the vehicle, and the circuit court
did not err.
III. CONCLUSION
For the foregoing reasons, we affirm the ruling of the trial court.
Affirmed.
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