COURT OF APPEAL S OF VIRGINIA

Present: Judg es Elder, Bray and Senior Judge Baker Argued at Rich mond, Virginia TAMMY LYNN ROHE MEMORANDUM OPINION * BY v. Record No. 0779-98-2 JUDGE RICHAR D S. BRAY APRIL 27, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF KING WILL IAM COUNTY Thomas B. Ho over, Judge (Anne H. Harris; Harris & Harris, on brief), for appellant. Appellant su bmitting on brief. Donald E. Jeffrey, III, Assi stant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Tammy Lynn Rohe (d efendant) was convicted in a bench trial for an attempted breaki ng and entering, with intent to commit larceny. On appeal, defendant challe nges the suffic iency of the evidence to suppor t the conviction. Finding no erro r, we disagree and affirm the trial court. The parties ar e fully conversa nt with the re cord, and this memorandum opinion re cites only those fa cts necess ary to a disposition of the appeal. “On appeal, ‘we re view the evidence in the light most favorable to the Comm onwealth, granti ng to it al l reasonableinferences fairly dedu cible theref rom.’” Archer v. Commonwealth , 26 Va. App. 1, 11, 492 S.E.2d 826, 83 1 (1997) (citat ion omitted). The credibility of the witnesses, the weig ht accorded testimony, and the inferenc es to be drawn from proven facts are ma tters to be determined by th e fact finder. See Long v. Co mmonwealth , 8 Va. App. 194, 199, 379 S. E.2d 473, 476 (1989). The ju dgment of the trial court will not be set aside unless plainly wrong or without support in the evidence. See Code § 8.01-680.
I. The record discloses that, on July 7, 19 97, Geraldine Overstreet was ill and had rema ined home from her regular employment. In the early afternoo n, Mrs. Overstre et “was in the bathroom washing clothes . . . [a nd] heard this bu mping noise.” She “went up the hallway[,] . . . heard something . . . cracking or . . . popping,” an d suddenly the front door, which had been “closed and locked ,” “came open.” Mrs. Overstreet “scream[ed], you can’t come in here,” and “pulled [the door ha ndle] in, because the person had something . . . to break the chain” restraint remaining on the door. During the commotio n, the curtain fell from the doorway window , and Mrs. Overstreet recognized her niece, defendant, “standing there wi th a long scre wdriver.” Mrs. Overstreet ha d not seen defendant since Decemb er, 1996, and she did not ha ve permission to enter her home . When Mrs. Overstreet asked, “why are you doing this?,” defe ndant answered that she “came to tu rn [herself] in” and requested that Mrs.

- 2 -Overstreet “call her mother.” Instead, she telephoned the “courthouse” and reported to a de puty sheriff that “[defendant] just tried to brea k in. Can you come and get her?” When Mrs. Overstreet would no t permit defendan t to enter her home, which contai ned substantial furnishings and other items of value, defendant “put the screwdriver down,” and declared that “she had two brown en velopes she wa nted [Mrs. Ov erstreet] to have.” Mrs. Overstreet instructed defendant to “[l]eave it on the picnic table,” later di scovering that one en velope contained an operational cell ular telephone. Shor tly thereaft er, police arrived and arrest ed defendant for attempting to break and enter the Overstreet residenc e, with the intent to commit larceny, the subject offense. Woodrow Overstre et, Mrs. Overstreet’s hu sband, testified that he had spoken with his sister, Fr ieda Thornton , defendant’s mother, several da ys prior to the offens e and was ad vised that defendant “was to turn herself in to family,” “s upposed to turn herself in [at the chur ch]; so [they] were looking for her.” Defendant obje cted to the court’ s inquiry into th e meaning of Mr. Overstreet’s reference to “turn hersel f in.” Mr. Ov erstreet had not seen or spoken with defendant in “four or five years” but had “told her before, if she needed to come [to his ho me], she could come there when somebo dy was there, and [he] didn’t want her to break in.”

- 3 -Defendant moved th e court to strike the Common wealth’s evidence, arguin g that it did not sufficiently prove that defendant atte mpted to break and enter th e home with the requisite larcenous inte nt. Defendant’s co unsel hypoth esized that defendant “was knocking on the door with a sc rewdriver, trying to knock louder so that somebo dy would answer, so that she could turn herself in.” Fi nding this argument incr edible, the co urt denied the motion and convicte d defendant of the in stant charge , noting that the evidence “sho ws only that [defenda nt] had the intent to break into the house, and that there were it ems of value there for her to steal.”
II. “An attempt to commit a crime consists of (1) the specific intent to commit the particular crime, and (2) an ineffectual act done towards its commission.” Bell v. Commonwealth , 11 Va. App. 530, 533, 399 S.E.2d 450, 452 (1991) (citation omitted). Intent is a state of mind that may be shown by the circumstances surrounding the offense, including defendant’s words and conduct. See Chittum v. Commonwealth , 211 Va. 12, 16, 174 S.E.2d 779, 781 (1970). Thus, “[w]hen an unlawful entry is made into a dwelling, the presumption is that the entry was made for an unlawful purpose. And we think it likewise correct that the specific purpose, meaning specific intent, with which such entry is made may be inferred from the surrounding facts and circumstances.”

- 4 -Black v. Commonwealth , 222 Va. 838, 840, 284 S.E.2d 608, 609 (1981) (citations omitted). “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, 138, 455 S.E.2d 730, 732 (1995) (citation omitted). The Commonwealth “‘is not required to disprove every remote possibility of innocence, but is, instead, required only to establish guilt of the accused to the exclusion of a reasonable doubt.’” Cantrell v. Commonwealth , 7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988) (citation omitted), cert. denied , 496 U.S. 911 (1990). “The hypotheses [of innocence] which the prosecution must reasonably exclude are those ‘which flow from the evidence itself, and not from the imagination of defendant’s counsel.’” Black , 222 Va. at 841, 284 S.E.2d at 609 (citation omitted). Here, defendant, in possession of a screwdriver, forcibly opened the locked front door of the Overstreet residence, during a time when the house was customarily unoccupied. Mr. and Mrs. Overstreet had not been in contact with defendant for a substantial time and had not given permission for her to enter their home, which contained personalty of significant value. The evidence provided no explanation for defendant’s unlawful conduct, and the hypothesis offered by defense counsel was without support in the record.

- 5 -Thus, the evidence clearly established that defendant attempted to break and enter the residence, then intending to commit larceny, and we affirm the conviction. Affirmed.

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