Victor Vsay Hucks v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Bray and Annunziata
Argued at Alexandria, Virginia
VICTOR VSAY HUCKS
OPINION BY
v. 	Record No. 0983-99-4 	JUDGE ROSEMARIE ANNUNZIATA
AUGUST 1, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Joanne F. Alper, Judge
Mark S. Thrash for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.
Victor Hucks was convicted by a jury in the Circuit Court
of Arlington County of breaking and entering with intent to
commit larceny, in violation of Code § 18.2-91. 	On appeal,
Hucks contends the trial court erred 1) in giving a jury
instruction offered by the Commonwealth to which he objected;
and 2) in denying his motion to strike the Commonwealth's
evidence for failure to prove intent to commit larceny. 	For the
reasons that follow, we affirm the conviction.
FACTS
On appeal, we "examine the evidence and all inferences
reasonably deducible therefrom in the light most favorable to
the Commonwealth, the prevailing party in the trial court."

Taylor v. Commonwealth, 31 Va. App. 54, 64, 521 S.E.2d 293, 298
(1999) (en banc) (quoting Commonwealth v. Jenkins, 255 Va. 516,
521, 499 S.E.2d 263, 265 (1998)). 	On July 3, 1997, bookkeeper
Donna Sarber arrived at her office in the Arlington law firm of
Walsh, Colucci, and Stackhouse between 5:00 a.m. and 5:30 a.m.
Sarber used her security key to gain access to the elevator and
rode the elevator to the firm's office suite on the thirteenth
floor of the building. 	She entered the suite through the
kitchen door and deactivated the suite's security system. 	The
suite's exterior doors are designed to close and lock
automatically upon being shut, and the main entrance to the
suite remains locked until the receptionist arrives at 8:30 a.m.
After entering the suite, Sarber went to her office and began
working.
Attorney Shawn McMullen arrived at the firm at
approximately 6:00 a.m. 	McMullen also entered the suite by
unlocking the kitchen door, because that is the only entrance
through which one may enter and deactivate the alarm system.
McMullen noted the alarm system had been deactivated, indicating
that someone had already entered the suite. 	He was aware Sarber
routinely arrived at work early. 	McMullen walked through the
suite to the reception area and observed that the main doors
were closed. 	He noticed Sarber's office light and radio were
on. 	He proceeded to his office and shut the door.
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Within five to ten minutes of McMullen's arrival, Hucks
opened McMullen's office door. 	McMullen was surprised to see a
stranger in the office at that early hour. 	Hucks asked if there
was someone named Denise in the office. 	McMullen replied that
he knew no one by that name, and Hucks apologized for the
interruption and shut the door. 	Hucks reopened the door and
told McMullen that he appeared to be "in a trinity of thought,"
and shut the door again. 	McMullen was concerned about the
presence of the stranger in the office and decided to walk to
Sarber's office to see if she was alright. 	As he walked to her
office, he heard the suite's exit door slam shut. 	When he
arrived at Sarber's office, he found her on the telephone,
reporting the intruder to the police. 	Sarber had also seen
Hucks as he walked past an interior window that opened onto the
hallway outside her office.
McMullen and Sarber walked through the office suite and
determined that all the doors through which the suite could be
entered were locked and secured. 	They noticed that the door to
the room containing the office's telephone equipment, located
just across the hall from McMullen's office, was ajar. 	The door
was closed when McMullen arrived at work that morning.
Officer Justin McNaul responded to Sarber's report of a
possible burglary in progress and, based upon her description of
the intruder, stopped Hucks as he was leaving the office
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building. 	Hucks admitted that he had been inside the Walsh,
Colucci office suite. 	Officer McNaul conducted a pat-down to
check Hucks for weapons and discovered an eight-inch slotted
screwdriver tucked into his waistband. 	Hucks became agitated
and clenched his fists, backing away from McNaul. 	McNaul, aided
by another police officer, placed Hucks in handcuffs. 	Sarber
and McMullen then came outside and identified him as the
individual they had encountered in the office. 	Hucks was
searched further, and a latex glove was found in his vest
pocket. 	Hucks' car was subsequently searched, and the police
discovered several screwdrivers with bent or altered tips and a
kitchen knife also with a bent tip.
An investigation of the office suite revealed no evidence
of forced entry. 	No usable fingerprints were recovered.
However, the police determined the front door to the office
suite had a locking mechanism that easily could be "jimmied"
with a flat-edged instrument, without leaving any pry marks.
At the conclusion of his trial, Hucks argued that, although
the evidence was sufficient to prove intent to break and enter,
it was not sufficient to prove intent to commit larceny. 	He
argued that in order to permit an inference of intent to commit
larceny, the evidence had to show that a breaking and entering
had occurred at night. 	The court decided, however, that in
cases dealing with breaking and entering of business premises,
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"nighttime" means any time outside normal business hours. 	On
that ground, the court held the Commonwealth had presented a
prima facie case of breaking and entering with intent to commit
larceny.
Hucks subsequently objected to the Commonwealth's proposed
jury instruction 8, which stated:
In the absence of evidence showing a
contrary intent, you may infer that a
defendant's unauthorized presence in a
building of another was with the intent to
commit larceny.
Hucks contended that the instruction did not correctly state the
law, because it omitted the words "in the nighttime." 	The court
overruled Hucks’ objection, concluding that under Code
§§ 18.2-90 and 18.2-91, "in the nighttime" means any time
outside normal business hours. 	The jury found Hucks guilty of
breaking and entering with intent to commit larceny.
COMMONWEALTH'S CHALLENGED JURY INSTRUCTION
"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)). 	"[A] jury must be informed as
to the essential elements of the offense; a correct statement of
the law is one of the 'essentials of a fair trial.'" 	Id.
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(quoting Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d
506, 508 (1979)). 	"Both the Commonwealth and the defendant are
entitled to appropriate instructions to the jury of the law
applicable to each version of the case, provided such
instructions are based upon the evidence adduced." 	Stewart v.
Commonwealth, 10 Va. App. 563, 570, 394 S.E.2d 509, 514 (1990)
(citation omitted).
Code § 18.2-91 provides, in pertinent part, that if any
person breaks and enters an office in the daytime, or enters
without breaking in the nighttime, "with intent to commit
larceny . . . he shall be guilty of statutory burglary . . . ."1
A "breaking" within the meaning of the statutes may be actual or
constructive. 	See Johnson v. Commonwealth, 221 Va. 872, 876,
275 S.E.2d 592, 594 (1981). 	Whenever a statute establishes an
offense comprised of an act combined with a particular intent,
"proof of such intent is as necessary as proof of the act itself
and must be established as a matter of fact." 	Ridley v.
Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979)
(citing Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d
752, 753 (1975)) (additional citation omitted). 	"Intent is the
purpose formed in a person's mind which may, and often must, be
1 Code § 18.2-91 incorporates by reference all those aspects
of Code § 18.2-90 except the crimes of murder, robbery, rape or
arson.
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inferred from the facts and circumstances in a particular case.
The state of mind of the offender may be shown by his acts and
conduct." 	Id. (citing Hargrave v. Commonwealth, 214 Va. 436,
437, 201 S.E.2d 597, 598 (1974)) (additional citation omitted).
In a prosecution for statutory burglary with intent to commit
larceny, the Commonwealth must prove the accused's specific
intent to commit larceny beyond a reasonable doubt, although it
may, and often must, prove such intent by circumstantial
evidence. 	See id.
"[A]n unlawful entry into [the] dwelling of another [gives
rise to a] presumption . . . 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." 	Tompkins v. Commonwealth, 212 Va. 460, 461, 184
S.E.2d 767, 768 (1971). 	This principle applies equally to
business premises. 	See Ridley, 219 Va. at 836, 252 S.E.2d at
314. 	"In the absence of evidence showing a contrary intent, the
trier of fact may infer that a person’s unauthorized presence in
another's house was with the intent to commit larceny."
Sandoval v. Commonwealth, 20 Va. App. 133, 137, 455 S.E.2d 730,
732 (1995) (citing Ridley, 219 Va. at 837, 252 S.E.2d at 315).
Although we find no basis in the law to support the view
that any time outside normal business hours may be equated with
"nighttime," we hold the Commonwealth's challenged jury
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instruction appropriately stated the law. 	"[A]n appellate court
may affirm the judgment of a trial court when it has reached the
'right result for the wrong reason.'" 	Bynum v. Commonwealth, 28
Va. App. 451, 458, 506 S.E.2d 30, 34 (1998) (quoting Driscoll v.
Commonwealth, 14 Va. App. 449, 451, 417 S.E.2d 312, 313 (1992)).
In Sandoval, we held that, in the absence of evidence to the
contrary, the trier of fact was entitled to infer the
defendant's intent to commit larceny from his unauthorized
presence in another's dwelling, irrespective of the time of day.
We cited Ridley in support of our decision. 	Hucks correctly
argues that in Ridley, in which this inference was first
enunciated, the Supreme Court stated the fact finder was
entitled to infer larcenous intent based upon the defendant's
unauthorized presence in a storehouse "in the nighttime." 	The
Court incorporated that phrase into its statement of the
inference because the record before it revealed the defendant to
have been present in the storehouse at 9:30 p.m. 	However, the
gravamen of the analysis was not the time at which the unlawful
entry occurred but whether, upon consideration of the facts and
circumstances of the case, the defendant's unlawful presence
could be deemed sufficient to infer an intent to commit larceny.
In extending the inference of intent to commit larceny to
business premises, the Court, viewing "the surrounding facts and
circumstances" of the case before it, held that the jury was
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entitled to draw such an inference from Ridley's unauthorized
presence in the storehouse at night. 	The Court did not
specifically limit the inference to situations in which the
defendant's unauthorized presence on another's premises occurs
at night.
In Jones v. Commonwealth, 3 Va. App. 295, 349 S.E.2d 414
(1986), we followed Tompkins and Ridley in holding that an
unlawful entry upon another's business premises allows a
presumption 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." 	Id. at
299, 349 S.E.2d at 417 (citing Tompkins, 212 Va. at 461, 184
S.E.2d at 768). 	There, we stated that the defendant's entry of
a retail store during normal business hours, and his act of
concealing himself within the store until it closed, constituted
a constructive breaking and entering and provided "surrounding
facts and circumstances" sufficient to permit the fact finder to
infer his specific intent to commit larceny. 	See id. at 300,
349 S.E.2d at 417.
Here, the surrounding facts and circumstances of the case
support the conclusion that Hucks entered the office suite
unlawfully. 	He was found in the premises over two hours before
the beginning of normal business hours, while the doors to the
suite were all shut and locked. 	He possessed an altered
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screwdriver and a latex glove. 	These items provide grounds to
infer forced entry, particularly given the evidence that the
doors to the office suite lock automatically upon being shut and
that the main door was of a type that could easily be "jimmied"
without leaving any pry marks. 	This evidence permitted the fact
finder to infer Hucks entered for an unlawful purpose and to
infer his specific intent to commit larceny. 	See id. 	Thus, the
trial court's instruction of the jury was supported by the
analyses of Ridley, Sandoval, and Jones, and we affirm on that
basis.
SUFFICIENCY OF THE EVIDENCE
"'When considering the sufficiency of the evidence on
appeal of a criminal conviction, we must view all the evidence
in the light most favorable to the Commonwealth and accord to
the evidence all reasonable inferences fairly deducible
therefrom. 	The jury's verdict will not be disturbed unless
plainly wrong or without evidence to support it.'" 	Clark v.
Commonwealth, 30 Va. App. 406, 409-10, 517 S.E.2d 260, 261
(1999) (quoting Traverso v. Commonwealth, 6 Va. App. 172, 176,
366 S.E.2d 719, 721 (1988)). 	We find no merit in Hucks'
contention that the evidence adduced at trial was insufficient
to support the jury's conclusion that he intended to commit
larceny. 	As noted, Hucks' unauthorized presence in the office
suite before normal business hours permitted an inference that
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he intended to commit larceny. 	See Ridley, 219 Va. at 837, 252
S.E.2d at 314; Sandoval, 20 Va. App. at 138, 455 S.E.2d at 732.
In addition to his unauthorized presence, the evidence proved
Hucks possessed a screwdriver whose tip was altered sufficiently
to serve as a burglary tool, and a latex glove that would
prevent his fingerprints from being detected on a door he might
manipulate for entry. 	Officer McNaul testified that several
additional altered screwdrivers were found in Hucks' car.
Viewing the evidence in the light most favorable to the
Commonwealth, we cannot say the jury plainly erred in concluding
Hucks entered the office suite with the intent to commit
larceny. 	Accordingly, we affirm his conviction.
Affirmed.
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