FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH. A. Bonwill Shockley, Judge.
Afshin Farashahi (Afshin Farashahi, P.C., on brief), for appellant.
Elizabeth C. Kiernan, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: Frank, Kelsey
and Alston Judges.
[63 Va.App. 212] OPINION
ROSSIE D. ALSTON, JR., JUDGE.
On appeal from his convictions of two counts of credit card fraud, Michael Ryan Bruton (appellant) contends that the trial court erred by failing to grant his motion for a mistrial. Appellant asserts that a mistrial was warranted because the trial court improperly informed the jury, during the sentencing phase, that appellant would receive a credit against his sentence for the time he had been incarcerated while awaiting trial. Finding no error, we affirm the trial court.
Appellant was tried by a jury on indictments charging one count of credit card theft, in violation of Code § 18.2-192(1)(a), two counts of credit card fraud, in violation of Code § 18.2-195(1)(a), and two counts of credit card forgery, in violation of Code § 18.2-193. During a two-day bifurcated trial, the Commonwealth's evidence during the guilt-determination phase proved beyond a reasonable doubt that on May 8, 2011, appellant used a credit card number belonging to the victim at two retail stores to purchase goods valued at approximately $1,000. The victim did not know appellant and did not authorize appellant to use her credit card information. Upon appellant's own testimony, the jury was also informed that appellant was arrested on July 13, 2011, and that he remained incarcerated while awaiting his trial on July 11 - 12, 2012. Based on the evidence presented, the jury convicted appellant of both counts of credit card fraud and acquitted appellant of the remaining charges.
After the jury returned its verdict, the sentencing phase of the trial commenced. The trial court instructed the jury, after which the following exchange occurred:
[Juror]: He's already been in jail for a year. Does this add on to what he's already done, or is this -- or is this from here on?
[Trial Court]: He gets credit for any time he's been in custody.
[63 Va.App. 213] [Juror]: So then if we said a year, then that means he could walk out tomorrow?
Counsel for appellant objected. Without objection, the trial court held an off-the-record sidebar-conference with counsel and then further admonished the jury to " [t]ake it at what I said" and " base everything on the instructions that you have." Thereafter, appellant's attorney made a motion for a mistrial, arguing that the trial court improperly instructed the jury regarding the question of appellant receiving credit for time served. The trial court denied the motion for a mistrial. The jury subsequently fixed ...