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. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 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 
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 § 18.2-1021

"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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