COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia
JOHN HENRY WEST
MEMORANDUM OPINION *
v. Record No. 0960-96-4 BY JUDGE WILLIAM H. HODGES
APRIL 1, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
Herman A. Whisenant, Jr., Judge
Mark A. Epstein (Law Offices of Mark Alan
Epstein, on briefs), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Tried by a jury in Prince William County, John Henry West
(appellant) was found guilty of grand larceny of an automobile.
On appeal, appellant argues that the trial judge erred in
refusing to instruct the jury concerning the lesser included
offense of unauthorized use of a motor vehicle. Finding no
error, we affirm appellant's conviction.
"A reviewing court's responsibility in reviewing jury
instructions is 'to see that the law has been clearly stated and
that the instructions cover all issues which the evidence fairly
raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370
S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499,
503, 290 S.E.2d 856, 858 (1982)). "[T]he appropriate standard of
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
review requires that we view the evidence with respect to the
refused instruction in the light most favorable to" appellant.
Brandau v. Commonwealth, 16 Va. App. 408, 411, 430 S.E.2d 563,
564-65 (1993).
So viewed, the evidence showed that Paul Scanlon stopped at
a gas station on his way to work on the morning of December 15,
1993. While Scanlon was inside the gas station, the attendant
shouted that someone was stealing Scanlon's car. Scanlon looked
out of the gas station and saw his vehicle, with appellant in the
driver's seat, moving away. Appellant drove the vehicle around
the building before exiting the gas station's property, giving
Scanlon a second opportunity to view him inside the car. Scanlon
did not know appellant and had not given him permission to use
the vehicle.
While on patrol, Officer Arthur Dennis received a radio
bulletin about Scanlon's stolen vehicle and spotted the car ten
minutes later. Dennis pursued the vehicle, which reached speeds
between seventy-five and eighty miles per hour and travelled
northbound in southbound lanes. When Scanlon's vehicle struck a
median, one of the front tires was flattened. The driver, whom
Dennis identified as appellant, subsequently lost control of the
vehicle again, flattening the other front tire. Allowing the
vehicle to continue to roll, appellant got out of the car and
fled. Dennis pursued appellant on foot and apprehended him.
In his own behalf, appellant testified that the police had
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mistakenly apprehended him as the person who had stolen Scanlon's
vehicle from the gas station. He said he had been riding in a
car on his way to a job, but got out of the car and walked over
an embankment to relieve himself. While he was urinating,
someone rushed past him and over the embankment. The police
officer who had been in pursuit of the other person tackled
appellant instead. On cross-examination, appellant denied
telling one of the officers on the scene that he had taken the
car intending to drive it to the Metro station and leave it
there. He also denied telling the officer that "[i]t's only
unauthorized use."
In rebuttal, Dennis and another police officer testified
that after he was apprehended appellant admitted taking the car,
but said that he only had been trying to get to the Metro
station.
"If any credible evidence in the record supports a proffered
instruction on a lesser included offense, failure to give the
instruction is reversible error. Such an instruction, however,
must be supported by more than a scintilla of evidence." Boone
v. Commonwealth, 14 Va. App. 130, 132, 415 S.E.2d 250, 251
(1992). "The determination whether the minimum quantum of
credible evidence supports a particular proposition is largely a
factor of determining the weight of that evidence in comparison
to the weight of the other credible evidence that negates the
proposition in question." Brandau, 16 Va. App. at 411-12, 430
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S.E.2d at 565.
Appellant's trial testimony was wholly inconsistent with the
statements he claims supported the instruction on unauthorized
use. From the stand, appellant denied any involvement in the
taking of Scanlon's vehicle. Appellant further denied making the
statements about taking the car so that he could get to the Metro
station.
In contrast to appellant's greatly disputed statements to
the police, the Commonwealth's evidence proved that appellant
stole Scanlon's car from a gas station in broad daylight and led
the police on a high speed chase while he tried to elude them.
After flattening two tires and losing control of the car,
appellant abandoned the vehicle and fled on foot. When viewed in
light of the Commonwealth's evidence, the asserted evidence of
unauthorized use "pales to no more than a scintilla . . . ." Id.
at 413, 430 S.E.2d at 565.
Moreover, appellant's statements to the police officers did
not tend to establish the crime of unauthorized use of a motor
vehicle.
"The main difference between common law
larceny and the statutory offense of
unauthorized use is that in the former there
must be an intent to deprive the owner of his
property permanently, while in the latter the
intent is to deprive the owner of possession
of his automobile temporarily and without any
intent to steal the same. The intent with
which property is taken determines the
offense."
Overstreet v. Commonwealth, 17 Va. App. 234, 236, 435 S.E.2d 906,
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907-08 (1993) (quoting Slater v. Commonwealth, 179 Va. 264, 267,
18 S.E.2d 909, 910-11 (1942)). "When one wrongfully takes
property of another with intent to deprive the owner thereof,
larceny is complete, though the accused afterwards abandons it."
Slater, 179 Va. at 267, 18 S.E.2d at 911. Cf. Briley v.
Commonwealth, 221 Va. 532, 544, 273 S.E.2d 48, 56 (1980)
(evidence established intent to permanently deprive the victim of
her automobile where the taking was contemporaneous with the
victim's murder and the vehicle was later found abandoned and
stripped of parts).
There was no evidence that appellant had any plans to return
the car to Scanlon. Appellant's statements to the police
demonstrated an intent to abandon the vehicle at the Metro
station. Thus, appellant's statements did not support the theory
that he intended to temporarily deprive Scanlon of his vehicle.
Under these circumstances, the trial judge did not err in
refusing to instruct the jury concerning unauthorized use. See
Slater, 179 Va. at 267, 18 S.E.2d at 911.
For the foregoing reasons, we affirm appellant's conviction.
Affirmed.
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