COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Clements
Argued by teleconference
STEVEN JOEL WEINSTEIN
MEMORANDUM OPINION * BY
v. Record No. 1184-01-2 JUDGE LARRY G. ELDER
JULY 2, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
J. Lloyd Snook, III (Snook & Haughey, P.C.,
on brief), for appellant.
Virginia B. Theisen, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Steven Joel Weinstein (appellant) appeals from his jury
trial conviction for unauthorized use of an automobile, in
violation of Code § 18.2-102. On appeal, he contends the trial
court erroneously refused to strike the evidence of unauthorized
use because it did not prove the offense occurred on the date
alleged in the indictment. He also contends the trial court
erroneously refused to grant a mistrial on the unauthorized use
charge when it granted a mistrial on a charge of grand larceny
by false pretenses, which arose out of the same series of
events. We hold the trial court's refusal to strike the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
evidence of unauthorized use was not erroneous because the
evidence proved appellant exceeded the scope of the use
authorized on the date alleged in the indictment. Further, we
hold the trial court's refusal to grant a mistrial on that same
charge was not an abuse of discretion. Thus, we affirm.
A.
SUFFICIENCY OF EVIDENCE TO PROVE OFFENSE OCCURRED
ON DATE ALLEGED IN INDICTMENT
In ruling on a defendant's motion to strike the
Commonwealth's evidence, a trial court must view that evidence
in the light most favorable to the Commonwealth. Cirios v.
Commonwealth, 7 Va. App. 292, 298, 373 S.E.2d 164, 166 (1988).
If the trier of fact subsequently finds the defendant guilty of
the charged offense, we view all the evidence in the light most
favorable to the Commonwealth on appeal, as well. Id. at 295,
373 S.E.2d at 165.
Here, the unauthorized use indictment cited Code § 18.2-102
and alleged that "[o]n or about January 28, 2000, in the County
of Albemarle, [appellant] did unlawfully and feloniously take,
drive or use an automobile valued at $200.00 or more belonging
to Charlotte Von Lilienfeld, without her consent, and in her
absence, and with the intent to temporarily deprive her [of]
possession thereof." The evidence, viewed in the light most
favorable to the Commonwealth, established that appellant did,
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in fact, commit the charged offense on the date alleged in the
indictment.
A violation of Code § 18.2-102 1
"may be committed by an employee of the
owner of a motor vehicle in using the
vehicle for his own purposes not connected
with the purposes for which the vehicle had
been entrusted to him or in using the
vehicle contrary to the instructions of the
owner." . . . [W]here an act violates the
specific scope or duration of consent to use
a vehicle, a trespassory taking contemplated
by Code § 18.2-102 occurs.
Overstreet v. Commonwealth, 17 Va. App. 234, 238, 435 S.E.2d
906, 909 (1993) (quoting 7A Am. Jur. 2d Automobiles and Highway
Traffic § 349 (1980) (footnotes omitted)) (emphasis added).
Here, the evidence, viewed in the light most favorable to
the Commonwealth, establishes that appellant exceeded the scope
of Von Lilienfeld's authorization to him to drive and possess
her car on January 28, 2000. Appellant told Von Lilienfeld he
1
That Code section provides in relevant part as follows:
Any person who shall take, drive or use any
. . . vehicle . . . not his own, without the
consent of the owner thereof and in the
absence of the owner, and with the intent
temporarily to deprive the owner thereof of
his possession thereof, without intent to
steal the same, shall be guilty of a Class 6
felony [if the value of such vehicle is $200
or more]. The consent of the owner of a[]
. . . vehicle . . . to its taking, driving
or using shall not in any case be presumed
or implied because of such owner's consent
on a previous occasion to the taking,
driving or using of such . . . vehicle . . .
by the same or a different person.
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could sell her BMW "quickly" and reported to her on January 27,
2000, that he had found a buyer for the car in New York.
Appellant specifically said that "the BMW was sold and that he
would be delivering it the next day," January 28, 2000. Based
on these representations, Von Lilienfeld relinquished her leased
BMW to appellant "[t]o have it sold." As part of that same
transaction, appellant obtained from Von Lilienfeld a check for
the balance of the lease money Von Lilienfeld and appellant
expected she would owe to BMW Financial Corporation after
receipt of the sales price, which appellant represented was
necessary to "initiate the paperwork . . . to sell the car."
Thus, the evidence established that Von Lilienfeld
authorized appellant to possess and drive the BMW on January 28,
2000, solely for the purpose of delivering the BMW to New York
for sale. Although appellant saw Von Lilienfeld on the morning
of January 28, 2000, in order to obtain a check for the balance
owed to BMW which was made out to appellant rather than BMW,
appellant gave her no indication at that time that the sale had
fallen through or that he would be unable to travel to New York
that day as planned. Appellant also gave her no indication he
had not delivered the car as planned when, two or three days
later, he brought her a blank consignment agreement and bill of
sale for her signature. Not until four or five days after
January 27, 2000, did Von Lilienfeld learn the sale had not been
consummated, and she became aware of this fact only after she
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spotted the BMW and its distinctive license plate in the parking
lot of a local appliance store. When Von Lilienfeld located
appellant inside the store and asked him why "[her] car [was]
still [in town]," he looked "surprised to see [her]" and claimed
he had not "had a chance to get it cleaned up and sent to New
York."
Thus, the evidence, viewed in the light most favorable to
the Commonwealth, established that on January 28, 2000,
appellant was authorized to possess Von Lilienfeld's BMW for the
limited purpose of transporting it to New York to sell it. He
did not transport the BMW to New York on that date, did not
inform Von Lilienfeld of this fact, and still had the BMW in his
possession four or five days later. This evidence supports both
the trial court's denial of appellant's motion to strike and the
jury's conviction of appellant for unauthorized use on the date
alleged in the indictment.
B.
DENIAL OF MISTRIAL MOTION FOR UNAUTHORIZED USE CHARGE
Appellant contends the trial court's completion of his
trial on the unauthorized use charge after it declared a
mistrial on the false pretenses charge was error. We hold the
assignment of error is without merit. "When a motion for
mistrial is made, based upon an allegedly prejudicial event, the
trial court must make an initial factual determination, in the
light of all the circumstances of the case, whether the
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defendant's rights are so 'indelibly prejudiced' as to
necessitate a new trial." Spencer v. Commonwealth, 240 Va. 78,
95, 393 S.E.2d 609, 619 (1990) (quoting LeVasseur v.
Commonwealth, 225 Va. 564, 589, 304 S.E.2d 644, 657 (1983)).
Whether to grant a mistrial motion rests in the sound discretion
of the trial court. Wright v. Commonwealth, 245 Va. 177, 189,
427 S.E.2d 379, 387 (1993). Here, the event allegedly
prejudicial to the unauthorized use prosecution stemmed from
claimed shortcomings in the false pretenses indictment which
caused the trial court to declare a mistrial on that charge. 2
Appellant cites Rules 3A:6 and 3A:10 in support of his
argument that he was entitled to have the two charges tried
together and, thus, that the trial court erred in granting a
mistrial on the false pretenses charge while denying a motion on
the unauthorized use charge. If the Commonwealth had originally
requested that the charges be tried separately, Rules 3A:6 and
3A:10 would have provided appellant with no basis for objecting
to separate trials. Rule 3A:6(b) provides that "[t]wo or more
offenses . . . based on the same act or transaction, or on two
or more acts or transactions that are connected or constitute
parts of a common scheme or plan" "may be charged in separate
counts of an indictment." Rule 3A:6(b) (emphasis added). In
2
This appeal does not present the issue of whether a basis
existed for the trial court's declaration of a mistrial on the
charge of obtaining money by false pretenses, and we do not
consider that issue.
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appellant's case, the unauthorized use and false pretenses
charges were brought in separate indictments. Rule 3A:10(c)
provides that if an accused is charged with more than one
offense, "[t]he court may direct that [the] accused be tried at
one time for all offenses then pending against him, if justice
does not require separate trials and (i) the offenses meet the
requirements of Rule 3A:6(b) [permitting joinder of certain
offenses in separate counts of the same indictment] or (ii) the
accused and the Commonwealth's attorney consent thereto." Rule
3A:10(c) (emphasis added). Thus, although Rule 3A:10(c) permits
joinder of offenses for trial under certain circumstances, it
does not authorize an accused to demand that he "be tried at one
time for all offenses then pending against him."
Appellant had no right to have the charges tried together,
and the record on appeal fails to establish prejudice to
appellant resulting from the trial court's decision to separate
the charges for trial after appellant requested a mistrial on
the false pretense charge. Appellant claims the jury likely
drew an incorrect inference, based on the absence of instruction
or argument on the false pretenses charge, that he pleaded
guilty to the false pretenses charge. However, this claim is
based on speculation. Further, appellant could have asked that
the jury be instructed not to draw such an inference, but
nothing in the record establishes that he did so. LeVasseur,
225 Va. at 589, 304 S.E.2d at 657 ("Unless the record shows the
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contrary, it is to be presumed that the jury followed an
explicit cautionary instruction promptly given."); cf. Berry v.
Commonwealth, 22 Va. App. 209, 213-14, 468 S.E.2d 685, 687-88
(1996) (holding that where evidence is admissible for limited
purpose, trial court has no duty to give limiting or cautionary
instruction sua sponte and accused waives right to instruction
by not requesting it at trial). Thus, we hold the trial court
did not abuse its discretion in denying appellant's motion for
mistrial on the unauthorized use charge.
For these reasons, we hold that the trial court did not
abuse its discretion in denying appellant's motion for mistrial
on the unauthorized use charge and that the evidence was
sufficient to prove appellant committed the offense on the date
alleged in the indictment. Thus, we affirm appellant's
conviction for unauthorized use.
Affirmed.
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