COURT OF APPEALS OF VIRGINIA 

Present: Judges Alston, 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 COURT OF FAIRFAX COUNTY 

Penney S. Azcarate, Judge 

 Charles J. Swedish (Sloan & Swedish, on brief), for appellant. 

 Stephen L. Forster, Assistant Attorney General (Mark R. Herring, 

Attorney General, on brief), for appellee. 

 Choon Poong Lee, appellant, was convicted by a jury of statutory burglary, in violation 

of Code § 18.2-91.1

 Code § 18.2-91 provides, in pertinent part, that “[i]f any person . . . [in the 

daytime breaks and enters . . . a dwelling house, as prohibited in Code] § 18.2-90 with intent to 

commit larceny . . . he shall be guilty of statutory burglary . . . .” The legislature imposes an 

enhanced penalty “if the person was armed with a deadly weapon at the time of such entry.” 

Code § 18.2-91. Appellant concedes he was guilty of breaking and entering the dwelling, but 

contends the evidence was not sufficient to prove he was armed with a deadly weapon at the time 

of entry. The issue here for resolution is whether a not per se deadly weapon may be defined as 

a deadly weapon based upon its possessor’s intent and subsequent 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 inanimate object sexual 

penetration, and robbery. On appeal, appellant challenges only the breaking and entering while 

armed with a deadly weapon conviction. 

PUBLISHED 
- 2 - 

BACKGROUND 

 “Applying principles of appellate review, we recite the facts in the light most favorable to 

the prevailing party below, the Commonwealth.” Jones v. Commonwealth, 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 from church and he previously worked with the victim’s 

husband. Appellant had helped the family move into their residence. 

 On September 23, 2015, the victim was home alone during the daytime while her 

children were at school and her husband was at work. Late that morning, appellant parked his 

truck near the victim’s home and walked to the back of the home. A neighbor’s security camera 

recorded appellant sitting in his truck and the victim’s car parked 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 the basement and used a screwdriver to pry open the screen. 

Appellant went upstairs to where the victim was watching television. Appellant pointed the 

screwdriver at the victim and demanded money. Appellant approached the victim, putting the 

screwdriver to her neck and cutting her with it, and he again demanded money. Appellant 

removed the victim’s clothing and touched her breasts and genital area. Appellant attempted to 

have intercourse with her. The victim testified she feared appellant “was going to kill” her, so 

she told appellant she would give him money from her purse. Appellant stopped assaulting the 

victim and followed her to a bedroom. 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 testified that she did not recognize the man in her home because his 

face was covered and she could see only his eyes. 

 Later that same day, Detective Brian Beyerson stopped appellant’s truck, which matched 

the vehicle in the security video. Beyerson transported appellant to police headquarters for 
- 3 - 

questioning. Detective Matthew Horn conducted the interrogation. Officer Young Lee, no 

relation to appellant, assisted Horn with translating the conversation as appellant primarily spoke 

Korean. The FBI later produced an official verbatim translation 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 open window with the screwdriver to get into the home. Appellant 

told Horn that he covered his face with a towel that he found inside the home by the window. 

Appellant told Horn he did not know anyone was in the home. Appellant stated that when he 

went upstairs he was surprised to see the victim watching television. Horn asked appellant why 

he had the screwdriver. Appellant 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 the 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 relevant to classify the screwdriver as a deadly 

weapon because the burglary was complete once he entered the home. 

 Appellant concedes he used the screwdriver 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 translation indicated words in italics were spoken in English, 

non-italicized words were spoken in Korean, and the use of brackets was “to denote linguist 

comments and other editorial.” 
- 4 - 

(1946) (“[A] weapon may not be per se deadly, yet the vicious and cruel use of it may be the 

determinative factor in pronouncing it deadly,” including a “steel screw driver.”). 

 The dispositive question, then, is whether there was sufficient evidence to prove the 

screwdriver could be defined as deadly at the time appellant used it in the commission of the 

burglary. Viewing the evidence in the light most favorable to the Commonwealth, as we must, 

“[w]e will reverse a conviction based on a sufficiency challenge 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. Pritchett 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 finder 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 Commonwealth.” (emphasis added)). 

“As a general rule, a litigant is entitled to introduce all competent, 

material, and relevant evidence tending to prove or disprove any 

material issue raised, unless the evidence violates a specific rule of 

admissibility.”. . . “Evidence is relevant if it has any logical 

tendency, however slight, to establish a fact at issue in the case.” 

“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 (1998), 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 screwdriver was deadly upon entry. 

 Our jurisprudence advises that an object’s manner of use is relevant 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 created by the usual burglary 

situation - the danger that the intruder will harm the occupants in 

attempting to perpetrate the intended crime or to escape and the 

danger that the occupants will in anger or panic react violently to 

the invasion, thereby inviting more violence. The laws are 

primarily designed, not to deter the trespass and the intended 

crime, which are prohibited by other laws, so much as to forestall 

the germination of a situation dangerous to personal safety. 

Rashad v. Commonwealth, 50 Va. App. 528, 540, 651 S.E.2d 407, 413-14 (2007) (analyzing 

whether statute prohibiting the use of a firearm in the commission of burglary applied to all 

forms of burglary) (quoting Rash v. Commonwealth, 9 Va. App. 22, 25-26, 383 S.E.2d 749, 751 

(1989)). By enhancing the penalty for breaking and entering while armed with a deadly weapon, 

it is clear the legislature intended to protect the occupants of the dwelling by discouraging 

burglars from taking deadly instruments into the dwelling. It follows, therefore, that the manner 

of an object’s use inside the dwelling is relevant to prove the material issue of whether the 

burglar intended to use an object as a weapon and whether it could be deadly. 

 What the burglar contemplated, or intended, also is relevant to the inquiry in categorizing 

an object as a deadly weapon. Evidence of a person’s intent can 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 statements once inside the dwelling 

are relevant to prove that a not per se deadly weapon was in fact intended to be used as a deadly 

weapon.3

 3

 Other states appear to have looked to actions within the dwelling to support convictions 

of armed burglary. See State v. Norris, 2016-Ohio-1526, ⁋⁋ 19-20 (Ct. App.) (screwdriver 

pointed at victim in fraternity house was deadly weapon to support finding of aggravated 

burglary); State v. Candelaria, 6363 P.2d 883, 884 (N.M. Ct. App. 1981) (screwdriver held to 

victim’s throat inside the home was deadly weapon to support finding aggravated burglary). 
- 6 - 

 Finding that the Court can consider appellant’s actions before and after the burglary, we 

address that evidence. The evidence supported a finding that appellant intended to use the 

screwdriver for the dual purpose of a burglarious tool and a weapon. 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 towel after entering the dwelling. 

Further, appellant kept the screwdriver in his hand, for ready use, as he went through the 

dwelling, rather than leaving it by the window, or otherwise securing it, once he made entry into 

the dwelling. After his arrest, when asked why he had the screwdriver, appellant immediately 

replied, “Ah, it was just to make [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 evidence supports the reasonable conclusion that appellant intended to arm himself 

with a deadly weapon in the commission of the burglary and in fact used it as a deadly weapon. 

Accordingly, the conviction for breaking and entering a dwelling house in the daytime while 

armed with a deadly weapon is affirmed. 

Affirmed.