COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Benton and Overton 

Argued at Salem, Virginia 

ROBERT LEE BROCK 

v. Record No. 0756-94-3 MEMORANDUM OPINION* 

 BY JUDGE JOSEPH E. BAKER 

COMMONWEALTH OF VIRGINIA DECEMBER 19, 1995 

FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON 

Rudolph Bumgardner, III, Judge 

 (William E. Bobbitt, Jr., Public Defender), 

 for appellant. Appellant submitting on brief. 

 Thomas C. Daniel, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General; Robert B. 

 Condon, Assistant Attorney General, on brief), 

 for appellee. 

 Robert Lee Brock (appellant) was awarded an appeal only from 

his bench trial convictions by the Circuit Court of the City of 

Staunton (trial court) for nine counts of attempted breaking and 

entering in the nighttime. In addition, appellant was convicted 

of three counts of breaking and entering and four counts of grand 

larceny. Those counts arose from events that occurred at the 

same area the attempted break-in counts are alleged to have 

occurred. The sole issue presented by this appeal is whether the 

evidence is sufficient to support the convictions for the nine 

counts of attempted breaking and entering in the nighttime. 

 Upon familiar principles, we state the evidence in the light 

most favorable to the Commonwealth, granting to it all reasonable 

____________________ 

 *Pursuant to Code § 17-116.010 this opinion is not 
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designated for publication. 

inferences fairly deducible therefrom. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). 

On July 30, 1993, appellant along with two accomplices, James 

Adams (Adams) and James Sandy (Sandy), carried out a series of 

breaking and enterings and larcenies in the City of Staunton. 

Prior to trial, co-defendants Adams and Sandy entered into a plea 

agreement with the Commonwealth to testify against appellant. 

 The evidence established that on July 30, 1993, appellant, 

Adams, and Sandy broke into, and stole goods from, three separate 

storage units located at a mini-warehouse storage complex owned 

by Calvin VanFossen (VanFossen). The attempted breaking and 

enterings are alleged to have occurred at nine other units of the 

359-unit mini-warehouse complex. The evidence introduced to link 

appellant to the commission of the nine alleged attempted 

breaking and enterings was the testimony of the two co-defendants 

Sandy and Adams, and the testimony of VanFossen. 

 Adams testified: 

 Q. Did you [load](?) items on the 

truck? 

 A. Yeah. Then when I was doing that 

[appellant] went up, was up a few doors on 

the storage sheds, I don't know. Four or 

five doors or something like that, doing 

something. Then he said something to me 

about come over here and I walked up there 

and he was pulling on a lock. It appeared to 

be like a big screw driver and he said that 

he didn't have his key but he was trying to 

find, he thought that this one was an easy 

one. 
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 Q. This one was an easy one? 

 A. Yeah, that the lock was easy and he 

thought he would just go ahead and take the 

lock off. So then he asked me to try it. So 

I tried it and it didn't come open. So he 

was walking back, kept looking around, 

looking at the numbers and said yeah, I'm 

sure this was it and, at that point I was 

like, I am confused here so I just walked 

back to the truck. And at that time we just 

all got back in the truck and left. 

 Q. Do you know how many storage sheds 

[appellant] tried to get into? 

 A. I didn't notice. Other than that 

that is all I know. 

 Sandy testified: 

 Q. I'm sorry, okay, okay, you went to 

the storage buildings with the defendant 

driving in his truck and you loaded up the 

sofa and chair and what else? 

 A. If I remember correctly, 

[appellant] went around to a couple other 

little places there and picked up some more 

stuff and I couldn't tell you which one of 

the buildings it was. 

 Q. Do you remember how many sheds were 

entered or attempted to be entered? Do you 

have any idea? 

 A. Not exactly, no. 

 * * * * * * * 

 Q. Did you try to open some of the 

sheds? 

 A. No sir. 

 Q. Who was doing that? 

 A. [Appellant]. 

 Q. Was Mr. Adams helping with that? 
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 A. I don't know. He was out running 

around too. I couldn't tell you if he was 

trying to open up any or not. 

 Q. So you don't know how many they 

tried to open? 

 A. No I don't. 

 Q. But you know they got a sofa and 

chair out of one and some other items out of 

another? 

 A. I believe so, yes sir. 

 Q. All right, now after that, what were 

you all using, what were they using to get 

in, do you know? 

 A. [Appellant] had a great big old long 

mechanic tool. It looks like a crow bar but 

it is not shaped like one. It's straight and 

it's got a, like a wood handle to it. It's 

like you know, you go to pull off the heads 

of something onto a car, something like that. 

 Q. Okay. And that's what they took with 

them to . . . 

 A. That was inside the front seat of 

the truck, yeah. 

 Q. All right, did they take it with 

them when they got out of the truck? 

 A. Yes sir. 

 VanFossen testified to what he observed when he came to work 

the next morning. VanFossen said that he observed three storage 

units, numbers 313, 315, and 330, where the locks had been 

broken, the doors damaged, and entry gained. He said that he had 

examined nine other units, numbers 318, 319, 321, 322, 323, 334, 

337, 338, and 339, where the doors had been damaged but entry had 

not been gained. VanFossen also testified that there were 359 
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units at his business and that he had previously had trouble with 

"people either breaking into [his] warehouse units" or attempting 

to break-in. The parties stipulated that Ernie Reed who worked 

for VanFossen, and was present in court, if called to testify 

would say that he had observed the same things that VanFossen 

described. Matthew Bird, one of VanFossen's tenants, testified 

that his rental unit was broken into on this occasion and that 

same storage unit had been broken into about a month before. 

 There was no evidence presented as to the condition of units 

318, 319, 321, 322, 323, 334, 337, 338, and 339 prior to July 30, 

1993, or whether the damages to the doors to those units appeared 

to be recently made. 

 Co-defendant Adams, testifying on behalf of the 

Commonwealth, described seeing appellant breaking into one of the 

units not included in the nine involved in this appeal. He 

described appellant as not initially being successful in his 

break-in on one of the units and that appellant "was walking 

back, kept looking around, looking at numbers and said 'yeah, I'm 

sure this was it . . .'" thus appearing to be interested in one 

particular unit. When the prosecutor attempted to solicit 

testimony from Sandy and Adams, about the nine units related to 

this appeal, both men denied any knowledge of appellant's attempt 

to enter those units. 

 "An attempt to commit a crime consists of (1) the specific 

intent to commit the particular crime, and (2) an ineffectual act 
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done toward its commission." Bell v. Commonwealth, 11 Va. App. 

530, 533, 399 S.E.2d 450, 452 (1991) (quoting Lynch v. 

Commonwealth, 131 Va. 762, 109 S.E. 427 (1921)). "Intent is a 

state of mind which can be evidenced only by the words or conduct 

of the person who is claimed to have entertained it." Banovitch 

v. Commonwealth, 196 Va. 210, 216, 83 S.E.2d 369, 373 (1954). 

"An overt act is required to prove an attempted offense because 

without it, there is too much uncertainty as to the accused's 

actual intent." Tharrington v. Commonwealth, 2 Va. App. 491, 

493, 346 S.E.2d 337, 339 (1986). Here, there is evidence that 

this appellant committed overt acts toward other units but there 

is no evidence that he was the criminal agent who damaged the 

nine entrances to the specific units for which he stands 

convicted. While it is true that it came to the attention of the 

owner and one of his employees that the nine units of the 

359-unit mini storage had been damaged, there is no evidence as 

to when either of these persons last observed the particular 

units. Additionally, there is evidence that within approximately 

thirty days prior to the discovery there had been other 

break-ins. We are of opinion and hold that the evidence is 

insufficient to support appellant's guilt as the criminal agent 

who damaged units 318, 319, 321, 322, 323, 334, 337, 338, and 

339. 

 The Commonwealth argues that even if we held the evidence is 

insufficient, we should not consider this appeal because 
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appellant at no time made a motion to strike the Commonwealth's 

evidence and at his sentencing hearing, he made statements 

inconsistent with statements he made at trial. 

 In support of its inconsistency argument, the Commonwealth 

cites Beavers v. Commonwealth, 150 Va. 33, 142 S.E. 402 (1926). 

The facts in that case are distinguishable from those before us. 

 Here appellant consistently denied any involvement with the nine 

units. There was no relevant inconsistency in his testimony at 

trial and at sentencing. 

 As the Commonwealth argues, appellant did not specifically 

make any motion to strike the evidence that was based upon 

insufficiency. However, in his closing argument, counsel for 

appellant addressed the trial court, saying: 

[M]y client is charged with a number of 

attempted, attempts to break-in to, I believe 

it is nine of those warehouses, Judge I don't 

think the Court has heard evidence that would 

in any way sufficiently tie my client to 

going to the first one through the ninth one. 

 [Adams and Sandy] have talked about going 

into a warehouse and taking some items out 

but neither of them, and they then digress 

into we were just kind of there and . . . I'd 

ask the Court to give great weight to the 

Commonwealth's witnesses in what they had to 

say about attempted break-ins at a number of, 

of the warehouse, the specific units. 

Citing Williams v. Commonwealth, 6 Va. App. 412, 368 S.E.2d 293 

(1988), the Commonwealth argues that the sufficiency of the 

evidence argument cannot be considered by this Court. The 

Commonwealth then properly cites a later en banc decision by this 

Court in Campbell v. Commonwealth, 12 Va. App. 476, 405 S.E.2d 1 
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(1991), in which we said: 

 To the extent that [the case] holds that an 

appeal of the sufficiency of the evidence is 

barred by the failure to move to strike the 

Commonwealth's evidence at the conclusion of 

the defendant's evidence even if the issue is 

clearly presented to the trial court by a 

motion to strike at the conclusion of the 

Commonwealth's evidence and in a closing 

argument to a trial court, we overrule it. 

Id. at 481, 405 S.E.2d at 3 (emphasis added). The Commonwealth 

further argues that the sufficiency issue was not "clearly 

presented" to the trial court in the closing argument and, 

therefore, appellant is barred from making the sufficiency 

argument in this appeal. Assuming, without deciding, that the 

sufficiency argument made in closing argument was not "clearly 

sufficient" to advise the trial court that appellant intended for 

his argument to be a motion to strike, we hold that on this 

evidence the ends of justice require that appellant's convictions 

cannot be justified when the evidence does not prove that 

appellant was the criminal agent. 

 Accordingly, the judgment of the trial court is reversed and 

appellant is dismissed from further prosecution on these charges. 

 Reversed and dismissed.