COURT OF APPEALS OF VIRGINIA
Present: Judges Humphr eys, Decker and O’Brien Argued by teleconference

ALFRED DARNELL LANE MEMORANDUM OPINION * BY v. Record No . 0972-16-1 JUDGE ROBERT J. HUMPHREYS APRIL 10, 2018 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Johnny E. Morrison, Judge Taite Westendorf (William Roots, Jr., on brief), for appellan t. Robert H. Anderson, III, Assis tant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Alfred Darnell Lane (“Lane”) app eals his conviction for armed b urglary in violation of Code § 18.2-90 in the Circuit Court of the City of Portsmouth ( the “circuit court”). He argues that “[i]t was error for the c ourt to find sufficient evidence appellant committed armed burglary as the Commonwealth’s proof lack ed evidence of a breaking.”
I. BACKGROUND Around 2:45 p.m. on August 20, 2015, Ant onio Scott (“Antonio”) returned to his home at 443 Florida Avenue, in the city of Portsmouth, with his groceri es. His sister Dajanay was waiting near the front door and saw her brother enter the house with an unknown woman. Antonio locked the door after he came in. After talking with h er brother, Dajanay went back towards her room. Dajanay hear d the unknown woman who had come in with Antonio say that she had to grab her phone charger from the car. As this unknow n woman opened the door to the

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - house, two men came in, later ide ntified as Lane and Christian Burden (“Burden”). Dajanay heard Antonio tell the men “You ’re not coming in here.” Lane h ad a gun, which Antonio and Lane began struggling over. The gun went off during the strugg le. Dajanay heard three more gunshots, followed by her brother exclaiming “[o]h, he shot me. ” Dajanay asked Lane and Burden if she could get help f or Antonio, but they refused. Th e men searched Antonio’s room, but were apparently unable to f ind what they wanted. Lane call ed out for Burden to check if Antonio was dead. Shortly ther eafter, both Lane and Burden ran out of the house. Lane was tried on March 28, 2016, f or felony murder, abduction, armed robbery, burglary, and related firearms ch arges. At trial, Myron Delbri dge (“Delbridge”), a fellow inmate incarcerated with Lane at the Ham pton Roads Regional Jail, test ified that Lane had turned to him for advice. Delbridge testified that Lane told him he and Burd en had gained access to the house through a “young lady” who opened t he door for them on the pret ense that she was getting her phone charger. As this “young lady” left the house, Lane and B urden “bum rushed the house.” Lane was found guilty on all charges and sentenced to a total t erm of sixty-eight years in prison and twelve months in jail.
II. ANALYSIS A. Standard of Review “When a defendant challenges the sufficiency of the evidence, w e view the evidence and all reasonable inferences in the light most favorable to the Co mmonwealth, the prevailing party in the trial court.” R owland v. Commonwealth, 281 Va. 396, 399 , 707 S.E.2d 331, 333 (2011). “The judgment of the trial cour t shall not be set aside unless it appears from the evidence that said judgment is plainly wrong or without evidence to support i t.” Bright v. C ommonwealth, 4 Va. App. 248, 250-51, 356 S.E.2d 443, 444 (1987); see also Code § 8.01-680.- 3 - B. Whether a Breaking Occurred Code § 18.2-90 states that “If any pe rson in the nighttime ente rs without breaking or in the daytime breaks and enters . . . with intent to commit murde r, rape, robbery or arson in violation of §§ 18.2-77, 18.2-79 or § 18.2-80, he shall be deem ed guilty of statutory burglary.” Because this incident occurred during the daytime, breaking mus t be shown. Breaking “may be either actual or constructi ve.” Johnson v. Commonwealth, 221 V a. 872, 876, 275 S.E.2d 592, 594 (1981) (quoting Davis v. C ommonwealth, 132 Va. 521, 523, 11 0 S.E. 356, 357 (1922)). Actual breaking requires “the app lication of some force, slight though it may be, whereby the entrance is effected.” Id. The force involved may indeed be v ery slight. See Phoung v. Commonwealth, 15 Va. App. 457, 424 S.E.2d 712 (1992) (finding w idening of an already slightly open glass door suffici ent to prove breaking). Constr uctive breaking, by contrast, “can include fraud, threats, tricker y, conspiracy, or some other nef arious conduct designed to prompt the victim to let the burglar i nside.” Lay v. Commonwealth, 50 Va. App. 330, 335, 649 S.E.2d 714, 716 (2007). Lane argues that no breaking occurred because the evidence lack ed proof of force or deception of Antonio to gain entry. It is true that Dajanay co uld not see the door from her position, and therefore cannot sa y whether Lane or Burden appli ed any force to the door, but she did hear the unknown woman tell An tonio that she was retrieving her phone charger from the car. In conjunction with Delbridge ’s testimony, this evidence, taken in the light most favorable to the Commonwealth, supports t he finding that the unknown woma n was a part of a plan by Lane and Burden to gain access to the house. Though there are few cases in our jurisprudence outlining constructive breaking, the use of the unknown woman t o gain access fits squarely within the bounds of “fraud, threa ts, trickery, conspiracy, or some other nefarious conduct designed to . . . let the burglar inside.” Id. This Court has held that “[a] break ing occurs when an- 4 - accomplice opens a locked door from within to enable his cohort s to enter to commit a theft or by leaving a door or win dow open from within to facilitate a la ter entry to commit a crime.” Bruce v. Commonwealth, 22 Va. App. 264, 270, 469 S.E.2d 64, 68 (1996). This is precisely what the testimony in the light m ost favorable to the Commonwea lth shows. In short, “[t]he gravamen of the offense is breaking the close or the sanctity o f the residence, which can be accomplished from within or without.” Id. Furthermore, actual and constr uctive breakings are not mutually exclusive. In Johnson, our Supreme Court held a breaki ng was both constructive and act ual where the defendant had gained access to the house by cla iming he was there to fix elec trical fuses and widening the slightly ajar door when the resid ent went to get him a requeste d glass of water. See Johnson, 221 Va. at 876, 275 S.E.2d at 595. The situ ation here is similar. The record indicates that Antonio locked the door when he came in to the house with the groceries. Whether the unknown woman with him merely ensured the door was unlocked for Lane and Burd en or opened it for them is unknown, but either scenario constitutes a breaking.
III. CONCLUSION The evidence was clearly suffi cient to show tha t a breaking occ urred, and therefore the judgment of the circuit court is affirmed. Affirmed.