COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Humphr eys and Senior Judge Annunziata Argued at Richmond, Virginia

STEVEN ARNELL HAIRSTON MEMORANDUM OPINION * BY v. Record No. 3049-07-3 JUDGE ROSEMARIE ANNUNZIATA DECEMBER 23, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF HENRY COUNTY David V. Williams, Judge S. Jane Chittom, Appellate De fender (Office of the Appellate Defender, on briefs), for appellant. Kathleen B. Martin, Senior Assi stant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Steven Arnell Hairston appeals his conviction for statutory burglary in violation of Code § 18.2-91. Appellant concedes that “while there is evidence to support a conclusion that [he] entered Matthew Mann[s’] house [on Ju ly 6, 2007], there is no evid ence to support the conclusion that he did so with the intent to commit la rceny,” as required for a conviction under Code § 18.2-91. 1 “On appeal, ‘we review the ev idence in the light most fa vorable to the Commonwealth, granting to it all reasonable inferenc es fairly deducible therefrom.’” Archer v. Commonwealth ,

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Based upon our review of appellant’s motion to strike and closing argument in which he raised the issue of sufficiency of the evidence to prove an in tent to commit larceny and the Commonwealth’s argument in response as contai ned in the trial transcript, we reject the Commonwealth’s contention that ap pellant did not preserve his argument for appellate review.- 2 - 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence proved that on July 6, 2007, Josh Randolph Baker saw appellant walk up his driveway and then walk “right to [Manns’] house. ” Manns had secured and boarded up his front door after some earlier break-ins had occurred. 2 Baker is Manns’ uncle and lives next door. Baker knew Manns was not home at that time and, as a re sult, he went to Manns’ home to investigate. He found the front door open and saw appellant inside the house coming toward the front door with “something whit e” in his hand. When Baker ye lled to appellant to come out, appellant backed up and fled. Because appellant “backed up too quick,” Baker could not identify the white object he saw in appellant’s hand. Nor did Baker see how appellant ex ited the house or where he went after he left. However, the back door was open. The sheriff’s office called Manns on July 6, 2007, and aske d him to come home, “because [his] door had been kicked open ag ain . . . .” When Manns arrived, the police were at his house, and he found it “wide open” an d “the door jamb was busted out.” Manns testified that “there was nothing taken from the house that time that I could find.” He denied giving appellant permission to enter his home on July 6, 2007. Appellant testified he walked by Manns’ house on July 6, but de nied he entered it or that he kicked open the door. Instead, he stated that he continued wa lking past the house of a woman named Cynthia Campbell an d then got a ride with an individual named Jonathon Jones to the house of Anthony Prunty. Appellant ack nowledged seeing Baker in his yard talking on his cell phone. Appellant had prior felony conviction s, which he numbered “about 20.”

2 Manns testified that about a week before July 6, 2007, th e door to his home had been kicked in. After that incident, he had boarded up the door, with a board held in place by locks, ten-penny nails, and three-inch sc rews. He used the back door while he waited for an insurance payment to fix the front door. Manns confirmed that th e boarded-up front door was securely closed on July 6, 2007.- 3 - When considering on appeal the sufficiency of the evidence presented below, we “presume the j udgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly wrong or without evidence to support it.” Thus, we do not “substitute our judgment for that of the trier of fact.” “Instead, the relevant question is whether, afte r viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” “This familiar standard give s full play to the responsibility of the trier of fact fairly to re solve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Kelly v. Commonwealth , 41 Va. App. 250, 257-58, 584 S.E.2d 444, 447 (2003) ( en banc ) (citations omitted). The relevant provisions of Code § 18.2-91 state that a person is guilty of statutory burglar y if that person breaks into and enters any building permanently affixe d to realty with the intent to commit larceny. When a statute, such as Code § 18.2-91, “makes an offense consist of an act combined with a particular intent , such intent is as necessary to be prove d as the act itself, and it is necessary for the intent to be esta blished as a matter of fact before a conviction can be had.” “Intent in fact is the purpose formed in a person’s mind and may be, and frequently is, shown by circumstances. It is a state of mind which may be shown by a person’s conduct or by his statements.” Vincent v. Commonwealth , ___ Va. ___, ___, ___ S.E.2d ___, ___ (Oct. 31, 2008) (emphasis in original) (citations omitted). [A] trier of fact may not reasonably infer the specific intent to commit larceny merely from the absence of evidence showing a different intent. Instead, as we stated in both Ridley and Tompkins , the specific intent with which an unlawful entry is made “may be inferred from the surrounding facts and circumstances.” Id. at ___, ___ S.E.2d at ___ (quoting Ridley v. Commonwealth , 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979); Tompkins v. Commonwealth , 212 Va. 460, 461, 184 S.E.2d 767, 768 (1971)). Contrary to appellant’s contention, nothing in this record shows the trial judge, as fact finder, impermissibly found that appellant had the specific intent to commit larceny based upon- 4 - an inference derived solely from evidence of a ppellant’s unauthorized entry into Manns’ home. In this case, the evidence and reasonable infere nces flowing from that evidence, viewed in the light most favorable to the Co mmonwealth, proved that appell ant forcibly broke and entered Manns’ home by breaking through th e boarded-up front door and the door jamb and that he walked inside the house, where Baker saw him w ith “something white” in his hand. When seen by Baker, appellant fled and later denied entering the home, giving rise to an inference of guilt.
See Hope v. Commonwealth , 10 Va. App. 381, 386, 392 S.E.2d 830, 833 (1990) ( en banc ) (“[E]vidence of flight may be considered as evid ence of guilt along with ot her pertinent facts and circumstances.”). Even though Manns could not specifically identify anything missing from his home and Baker could not identify the white obj ect in appellant’s hand, a rational fact finder could reasonably infer th at appellant held an item in his ha nd that he intended to steal from Manns’ home. These surrounding facts and circumst ances allowed a rational fact finder to conclude beyond a reasonable doubt that appell ant broke and entered Manns’ home with the intent to commit larceny. For these reasons, we conclude that the evidence was sufficient to prove beyond a reasonable doubt that appellant possessed the specific intent to commit larceny when he unlawfully broke into and entered Manns’ home. Accordingly, we affirm the trial court’s decision. Affirmed.