                        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.

                                - 3 -
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

                               - 4 -
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.

                                 - 6 -
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

                               - 7 -
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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