Albert Spencer Mitchell, Jr. v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Fitzpatrick
Argued at Salem, Virginia
ALBERT SPENCER MITCHELL, JR.
MEMORANDUM OPINION * BY
v. Record No. 0730-96-3 JUDGE JOHANNA L. FITZPATRICK
APRIL 29, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Porter R. Graves, Jr., Judge
Roland M. L. Santos for appellant.
John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Ruth Ann Morken, Assistant Attorney
General, on brief), for appellee.
Albert Mitchell (appellant) was convicted in a bench trial
of breaking and entering with the intent to commit larceny in
violation of Code § 18.2-89. The sole issue on appeal is whether
the trial court erred in finding the evidence sufficient to prove
larcenous intent.
On August 26, 1995, at approximately 3:30 a.m., appellant, a
former boyfriend of Jamie Farley (the victim), arrived at her
house and "smashed out the [door] window, and opened the door,
and let himself in." The victim's purse was a "foot or two" from
the door. Farley awoke to see appellant standing over her bed
and told him to leave the house. After a brief altercation,
appellant left and on his way out, he took Farley's purse which
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
was on the kitchen counter.
The following day, appellant called Farley and attempted to
return her purse. She told him to contact the police.
Subsequently, he made arrangements with Sergeant Kevin Lanoue
(Sgt. Lanoue) of the Harrisonburg Police Department to give a
statement regarding the break-in and to return Farley's purse.
When appellant returned the purse, none of the contents were
missing.
Appellant contends that he went to Farley's house on August
26, 1995, because she told him she was pregnant and contemplating
suicide, and that he and Farley made arrangements to get a
pregnancy test on Friday, August 26, 1995. When Farley failed to
arrive, he went to her house in Harrisonburg and broke in because
he was concerned about her. He stated that when he confronted
Farley and Craig in the bedroom, he asked her why she told him
she was pregnant, and her response was that she wanted him to pay
some bills. Farley denied telling appellant that she was
pregnant or that she was thinking of killing herself.
Appellant gave conflicting statements to the police. His
first statement was that:
[H]e had gone to see Ms. Farley and found out
that she was with Mr. Craig and became very
upset. . . . [H]e smashed out the window and
opened the door and let himself in and got in
an argument with Mr. Craig in the apartment,
left, took her purse because he wanted an
address to her ex-husband and the address to
her ex-husband was in her purse and he wanted
to get in touch with that gentleman. So, he
took her purse to get that address and left.
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Later he made a second statement that Sgt. Lanoue summarized as
follows:
He advised me that he had gotten a call from
Ms. Farley stating that she was pregnant with
his child and he had wanted to get in touch
with her regarding her pregnancy with that
child and was unable to do so. What he did
is he went to the residence, couldn't get
anybody to the door, smashed out a window,
opened the door and went in, got involved in
the altercation with Mr. Craig, . . . and
took the purse because, again, it had the
address of her ex-husband in it and left the
residence.
On appeal, this Court views the evidence in the "light most
favorable to [the prevailing party], the Commonwealth, granting
to it all reasonable inferences fairly deducible therefrom."
Welch v. Commonwealth, 15 Va. App. 518, 523, 425 S.E.2d 101, 105
(1992). The trial court's decision will not be disturbed unless
plainly wrong or without evidence to support it. Peterson v.
Commonwealth, 5 Va. App. 389, 401, 363 S.E.2d 440, 448 (1987).
"The credibility of the witnesses and the weight accorded the
evidence are matters solely for the fact finder who has the
opportunity to see and hear that evidence as it is presented."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995). The court is free to weigh the testimony and to
judge the credibility of the witnesses. In the face of
conflicting testimony and evidence, the court is under no
obligation to believe the accused's explanation, and may infer
that he is trying to conceal his guilt. See Carter v.
Commonwealth, 223 Va. 528, 290 S.E.2d 865 (1982).
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Code § 18.2-89 states as follows: "If any person break and
enter the dwelling house of another in the nighttime with intent
to commit larceny . . . he shall be guilty of burglary . . . ."
Clark v. Commonwealth, 22 Va. App. 673, 472 S.E.2d 663 (1996),
aff'd, 24 Va. App. 253, 481 S.E.2d 495 (1997).
[W]hen an unlawful entry is made into a
dwelling of another, the presumption is that
the entry was made for an unlawful purpose,
and the specific intent with which such entry
was made may be inferred from the surrounding
facts and circumstances . . . .
The rule, as applied in most
jurisdictions, is that in a prosecution of
burglary with intent to commit larceny, the
state must prove the specific intent to steal
beyond a reasonable doubt, although it may
and frequently must prove such intent by the
facts and circumstances. In the absence of
evidence showing a contrary intent, the trier
of fact may infer that a defendant's
unauthorized presence in a house or building
of another in the nighttime was with intent
to commit larceny.
Jones v. Commonwealth, 3 Va. App. 295, 299-300, 349 S.E.2d 414,
417 (1986). Accord Black v. Commonwealth, 222 Va. App. 838, 840,
284 S.E.2d 608, 609 (1981); Ridley v. Commonwealth, 219 Va. 834,
252 S.E.2d 313 (1979); Tompkins v. Commonwealth, 212 Va. 460,
461, 184 S.E.2d 767, 768 (1971); see also Sandoval, 20 Va. App.
at 137, 455 S.E.2d at 732 ("The state of mind of an accused may
be shown by his acts and conduct.") (citations omitted).
Further, "where larceny has actually been committed that is the
best evidence of intent with which breaking was committed."
Smyth v. Morrison, 200 Va. 728, 734, 107 S.E.2d 430, 435 (1959).
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When so viewed, the evidence was sufficient to convict
appellant of breaking and entering with the intent to commit
larceny. In the instant case, the evidence established that
appellant broke in and took the victim's purse, and he intended
to do so when he broke into her home. Appellant first told
police that "he had gone to see Ms. Farley and found out she was
with Mr. Craig." At that point, he "became very upset" and
"banged on the door." When no one would come to the door, he
"smashed out the window and opened the door and let himself in."
At the time, the purse was "maybe a foot or two from the door at
the most." Appellant said he took the purse to get a phone
number for Farley's ex-husband, the father of her infant
daughter, and tell him of her behavior. From this evidence, the
trial court could reasonably conclude that at least one of the
reasons that appellant broke into the house was to steal the
purse.
Accordingly, the decision of the trial court is affirmed.
Affirmed.
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