COURT OF APPEALS OF VIRGINIA
Present: Judges Al ston, Chafin and Senior Judge Haley Argued at Fredericksburg, Virginia

CHOON POONG LEE OPINION BY v. Record No . 1897-16-4 JUDGE JAMES W. HALEY, JR. DECEMBER 19, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Penney S. Azcarate, Judge Charles J. Swedish (Sloan & Swedish, on brief), for appellant

. Stephen L. Forster, Assistant Attorney General (Mark R. Herri ng, Attorney General, on brief), for appellee.
Choon Poong Lee, appellant, was c onvicted by a ju ry of statuto ry burglary, in violation of Code § 18.2-91. 1 Code § 18.2-91 provides, in pertin ent part, that “[i]f any pe rson . . . [in the daytime breaks and enters . . . a dwelling house, as prohibited in Code] § 18.2-90 with intent to commit larceny . . . he shall be gu ilty of statutory burglary . . . .” The legislature imposes an enhanced penalty “if the pers on was armed with a deadly weapon at the time of such entry.” Code § 18.2-91. Appellant conced es he was guilty of breaking a nd entering the dwelling, but contends the evidence was not s ufficient to prove he was armed with a deadly wea pon at the time of entry. The issue here for r esolution is whether a not per se deadly weapon may be defined as a deadly weapon based upon its posse ssor’s intent and subsequen t use as a deadly weapon. We conclude it can be so defined. For the reasons that follow, we affirm.

1 Appellant was also convicted of attempted rape, animate or ina nimate object sexual penetration, and robbery. On app eal, appellant challenges only the breaking and entering while armed with a deadly weapon conviction.PUBLISHED- 2 - BACKGROUND “Applying principles of appellat e review, we recite the facts in the light most favorable to the prevailing party be low, the Commonwealth.” Jones v. Common wealth, 279 Va. 295, 298, 687 S.E.2d 738, 739 (2010). So viewed, the evidence adduced at trial established that appellant knew the victim and her family fro m church and he previously wo rked with the victim’s husband. Appellant had helped the family move into their resid ence. On September 23, 2015, the victim was home alone during the da ytime while her children were at school and her husband was at work. Late thatmorning, appellant parked his truck near the victim’s home and w alked to the back of the home . A neighbor’s security camera recorded appellant sitting in hi s truck and the victim’s car pa rked in the driveway. The video showed appellant walking to the victim’s home, wearing gloves, sunglasses, and a hat. Appellant found an open window to t he basement and used a screw driver to pry open the screen. Appellant went upstairs to where the victim was watching televi sion. Appellant pointed the screwdriver at the victim a nd demanded money. Appellant approa ched the victim, putting the screwdriver to her neck and cut ting her with it, and he again d emanded money. Appellant removed the victim’s clothing a nd touched her breasts and genit al area. Appellant attempted to have intercourse with her. The victim testified she feared app ellant “was going to kill” her, so she told appellant she would gi ve him money from her purse. Ap pellant stopped assaulting the victim and followed her to a bedr oom. The victim gave him her wallet, which contained approximately $2,000 in currency. Appellant left the home, and the victim immediately called her husband. The victim testifi ed that she did not recognize t he man in her home because his face was covered and she could see only his eyes. Later that same day, Detectiv e Brian Beyerson stopped appellan t’s truck, which matched the vehicle in the security vi deo. Beyerson transported appell ant to police headquarters for- 3 - questioning. Detectiv e Matthew Horn conducte d the interrogatio n. Officer Young Lee, no relation to appellant, assisted H orn with translating the conve rsation as appellant primarily spoke Korean. The FBI later produced a n official verbatim translatio n that was admitted into evidence at trial. Appellant initially lied, but eventually admitted he went to the victim’s home. He said his intent was to get money because he owed his brother-in-law $3,000. Appellant stated he pried open the screen to the ope n window with the screwdriver t o get into the home. Appellant told Horn that he covered his f ace with a towel that he found i nside the home by the window. Appellant told Horn he did not know anyone was in the home. Ap pellant stated that when he went upstairs he was surprised t o see the victim watching telev ision. Horn asked appellant why he had the screwdriver. Appella nt responded, “Ah, it was just to make [her] threaten . . . I didn’t know but, when you open the window . . . the window was opened , so I couldn’t open it with hands.” 2
ANALYSIS Appellant admits he committed a breaking and entering, in the daytime, of a dwelling house. He argues, however, that th e enhanced penalty for being armed with a deadly weapon does not apply because a screwdriver is not a per se deadly weapon and, for purposes of the burglary, he used the screwdriver only as a burglarious tool. Appellant asserts his actions with the screwdriver, inside the home, were not relevan t to classify the screwdriver as a deadly weapon because the burglary was c omplete once he entered the ho me. Appellant concedes he used the scr ewdriver in a deadly manner after the burglary was complete. This concession is consistent with the law on non per se deadly weapons being classified as deadly. See Pannill v. Commonwealth, 185 Va. 244 , 253-54, 38 S.E.2d 457, 462

2 The legend to the FBI’s trans lation indicated words in italics were spoken in English, non-italicized words were spoke n in Korean, and the use of brac kets was “to denote linguist comments and other editorial.”- 4 - (1946) (“[A] weapon may not be per se deadly, yet the vicious and c ruel use of it may be the determinative factor in pronounc ing it deadly,” including a “st eel screw driver.”). The dispositive question, then, i s whether there was sufficien t evidence to prove the screwdriver could be defined as de adly at the time appellant us ed it in the commission of the burglary. Viewing the evidence i n the light most favorable to the Commonwealth, as we must, “[w]e will reverse a conviction ba sed on a sufficiency challeng e only if the trial court’s judgment is plainly wrong or without evidence to support it.” Smith v. Commonwealth, 61 Va. App. 690, 692, 739 S.E.2d 280, 281 (2013). It was the Commonwealth’s burden to prove that the screwdriver was deadly at the time of commission of the burglary. P ritchett v. Commonwealth, 219 Va. 927, 929, 252 S.E.2d 352, 353 (1979) (“Generally, unless a weapon is per se a deadly one, the fact f inder should determine whether it, and the manner of its use , place it in that category, and the burden of showing these things is upon the Commonwea lth.” (emphasis added)). “As a general rule, a litigant is entitled to introduce all com petent, material, and relevant evidence tending to prove or disprove an y material issue raised, unless the evidence violates a specific rule of admissibility.”. . . “Evidence is relevant if it has any logic al tendency, however slight, to estab lish a fact at issue in the c ase.” “Evidence is material if it relates to a matter properly at issue.” Calhoun v. Commonwealth, 35 Va. App. 506, 509, 546 S.E.2d 239, 241 (2001) (quoting Peeples v. Commonwealth, 28 Va. App. 360, 365, 504 S.E.2d 870, 873 (199 8), rev’d on other grounds, 30 Va. App. 626, 519 S.E.2d 382 (1999) ( en banc )). Appellant asserts the evidence of his use of the screwdriver was not relevant to determine whether the screw driver was deadly upon entry. Our jurisprudence advises that an object’s manner of use is re levant to establish that an object was a deadly weapon. Pannill, 185 Va. at 253-54, 38 S.E .2d at 462; Pritchett, 219 Va. at 929, 252 S.E.2d at 353. Further,- 5 - Burglary laws are based primarily upon a recognition of the dangers to personal safety cre ated by the usual burglary situation - the danger that the intruder will harm the occupant s in attempting to perpetrate the inte nded crime or to escape and th e danger that the occupants will in anger or panic react violentl y to the invasion, thereby inviting m ore violence. The laws are primarily designed, not to deter the trespass and the intended crime, which are prohibited by ot her laws, so much as to forest all the germination of a situation da ngerous to personal safety. Rashad v. Commonwealth, 50 Va. App. 528, 540, 651 S.E.2d 407, 4 13-14 (2007) (analyzing whether statute prohibiting the use of a firearm in the commiss ion of burglary applied to all forms of burglary) (quoting R ash v. Commonwealth, 9 Va. App. 22 , 25-26, 383 S.E.2d 749, 751 (1989)). By enhancing the pena lty for breaking and entering wh ile armed with a deadly weapon, it is clear the legislature inte nded to protect the occupants o f the dwelling by discouraging burglars from taking deadly ins truments into the dwelling. It follows, therefore, that the manner of an object’s use inside the dwel ling is relevant to prove the material issue of whether the burglar intended to use an object as a weapon and whether it co uld be deadly. What the burglar contemplate d, or intended, also is relevant t o the inquiry in categorizing an object as a deadly weapon. Evide nce of a person’s intent ca n be proven by the person’s conduct and statements “ after the events that constitute the charged crime.” Simon v. Commonwealth, 58 Va. App. 194, 206, 708 S.E.2d 245, 251 (2011) (emphasis added). Therefore, the Court concludes that a burglar’s actions and sta tements once inside the dwelling are relevant to prove that a not per se deadly weapon was in fact inte nded to be used as a deadly
weapon. 3

3 Other states appear to have l ooked to actions within the dwell ing to support convictions of armed burglary. See State v. Norris, 2016-Ohio-1526, ⁋⁋ 19- 20 (Ct. App.) (screwdriver pointed at victim in fratern ity house was deadly weapon to supp ort finding of aggravated burglary); State v. Candelaria, 6363 P.2d 883, 884 (N.M. Ct. Ap p. 1981) (screwdriver held to victim’s throat inside the hom e was deadly weapon to support fi nding aggravated burglary).- 6 - Finding that the Court can cons ider appellant’s actions before and after the burglary, we address that evidence. The evi dence supported a finding that appellant intended to use the screwdriver for the dual purpos e of a burglarious tool and a we apon. The evidence demonstrated appellant knew someone was home , as indicated by the car in the driveway and the fact that appellant concealed his identity by covering his face with a to wel after entering the dwelling. Further, appellant kept the s crewdriver in h is hand, for ready use, as he went through the dwelling, rather than leaving it by the window, or otherwise se curing it, once he made entry into the dwelling. After his arrest , when asked why he had the scre wdriver, appellant immediately replied, “Ah, it was just to ma ke [her] threaten . . .” and to get in through the window. Appellant conceded he used the screwdriver as a deadly weapon once he was in the dwelling. Taken in its entirety, the eviden ce supports the reasonable conclusion that appellant intended to arm himself with a deadly weapon in the commi ssion of the burglary and in f act used it as a deadly weapon. Accordingly, the conviction f or breaking and entering a dwellin g house in the daytime while armed with a deadly weapon is affirmed. Affirmed.