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. 
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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.