COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Humphreys and Senior Judge Overton 

Argued at Chesapeake, Virginia 

MARK FILBY, S/K/A 

 MARK DOUGLAS FILBY 

 MEMORANDUM OPINION* BY 

v. Record No. 2208-99-1 JUDGE ROBERT J. HUMPHREYS 

 JULY 25, 2000 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Verbena M. Askew, Judge 

 Paul H. Wilson (Wilson & Wilson, P.C., on 

brief), for appellant. 

 Robert H. Anderson, III, Assistant 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. 

Mark Filby appeals his convictions in a bench trial for 

possession of burglary tools and wearing a mask in public. He 

complains (1) that the trial court erred in considering 

testimony which it had earlier ruled inadmissible; (2) that the 

evidence was insufficient as a matter of law to support the 

conviction for possession of burglary tools; and, (3) that the 

trial court erred in sentencing Filby to the maximum sentence 

contemplated by law for wearing a mask in public while imposing 

a lesser sentence for possession of burglary tools. For the 

reasons that follow, we disagree and affirm his convictions. 
I. Background 

Between 10:30 p.m. and 11:00 p.m. on February 4, 1999, 

Filby's estranged wife phoned police and stated that she had 

just seen a man outside her kitchen window staring at her, 

wearing a full-faced ski mask. She told the dispatcher that she 

thought the man might be her husband who was banned from her 

property pursuant to a protective order. An officer responded 

to her home and after talking with Mrs. Filby, looked around 

outside the window. The officer found an air conditioning unit 

that appeared to have been moved to a location under the window. 

He also found footprints on the air conditioning unit. The 

officer observed no evidence of tampering with the window. 

Shortly thereafter, the officer noticed a maroon vehicle in the 

parking lot, which he considered to have "taken off" much faster 

than it "really needed to." Mrs. Filby told the officer that 

her husband drove a maroon Ford Taurus, so the officer radioed a 

description of the car and asked that the license plate be 

checked. 

 Another officer heard the call and observed the car in a 

convenience store parking lot across the street from the 

apartment complex where Mrs. Filby lived. Filby was out of his 

vehicle when the officer approached him to ask his name. After 

the officer informed Filby of the incident involving his wife, 

Filby initially denied any knowledge of the matter. At the 

officer's request, Filby consented to a search of his vehicle. 

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In the front seat of Filby's vehicle, police found a pair of 

binoculars and a lock-blade knife. In the trunk they found a 

ski mask, a long flathead screwdriver, duct tape, a BB gun, 

gloves, a glass cutter and a dark sweatshirt. Filby then stated 

that he had not gone to his wife's house but had been in the 

area on other business. After further questioning, Filby 

admitted that he had gone to his wife's house to see her and 

that he had been wearing a mask. He stated that he had gone to 

the kitchen window and observed her for thirty-five minutes. He 

admitted that he knew of the protective order prohibiting him 

from the premises. 

 At trial, Filby testified that he only had a key to the 

ignition and doors of the car. He explained that he had the 

door and ignition locks "re-keyed" but not the trunk lock. He 

testified that he did not have a key to the trunk and that his 

wife had both sets of keys. The police officers testified that 

they had to get a key from Mrs. Filby to search the trunk of the 

vehicle. Filby further testified that the mask he was wearing 

was only a partial mask which he wore for work at a recycling 

center and that although the items in the trunk were similar to 

what he would carry in his trunk, the items were not his and he 

didn't know how they got there. He also testified that he had 

not spoken to his wife since January, then testified that he did 

talk to her the night of the incident because she opened the 

window after she saw him and yelled. Filby stated he then ran 

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from the scene and threw the mask he was wearing into a nearby 

dumpster. 

 Mrs. Filby testified that she did not open the window and 

that she had not had possession of the vehicle for a month. 

 During the trial, the prosecutor called Michael Bunting, a 

maintenance man and groundskeeper, who worked at the apartment 

complex. Bunting testified that he had observed Filby at his 

wife's apartment in mid-January examining the doors and windows 

of his wife's apartment. 

 Filby objected to this testimony, and the trial court 

sustained the objection in part and ruled that only the fact 

that Filby was seen at the apartment in January would be 

admissible. The trial court held the evidence that Filby was 

examining the doors and windows was inadmissible. Based upon 

this ruling, Filby did not cross-examine the witness. 

 During Filby's closing argument, the trial court, sua

sponte, indicated that it was "changing its mind" concerning the 

testimony of Bunting and as trier of fact would consider his 

testimony in its entirety. To Filby's strenuous objection that 

the court could not now admit evidence it had previously ruled 

inadmissible, and further that Filby could not now cross-examine 

the witness, the court responded, "I'm changing my rules." 

Filby was convicted as charged. 

 Before sentencing, Filby filed a motion to reconsider based 

upon the admission of the testimony of the maintenance man. The 

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Commonwealth conceded that the evidence should not have been 

considered because Filby was unable to cross-examine the witness 

in light of the subsequent ruling of the court. The 

Commonwealth suggested as a remedy that the court reopen the 

case and permit further questioning of the witness. Filby 

objected that this was not an adequate remedy in view of the 

passage of some eight weeks since the trial, during which the 

witnesses were no longer separated. The court granted Filby's 

motion to reconsider but stated that the stricken evidence did 

not affect Filby's convictions. In finding that the evidence 

was sufficient without the stricken testimony of Bunting, the 

court specifically noted the presumption contained in Code 

§ 18.2-94, which it found was not rebutted by the evidence.1

 The court then sentenced Filby to ten years imprisonment 

with eight years and four months suspended for his conviction of 

possession of burglary tools and sentenced him to five years 

imprisonment for wearing a mask in public. 

 1

 Code § 18.2-94 provides in pertinent part that "[i]f any 

person have in his possession any tools, implements or outfit, 

with intent to commit burglary, robbery or larceny, upon 

conviction thereof he shall be guilty of a Class 5 felony. The 

possession of such burglarious tools, implements or outfit by 

any person other than a licensed dealer, shall be prima facie 

evidence of an intent to commit burglary, robbery or larceny." 

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II. Motion to Reconsider 

Whether to reopen a case lies within the sound discretion 

of the trial judge. See Mundy v. Commonwealth, 161 Va. 1049, 

171 S.E. 691 (1933). 

When all the testimony in the trial of a 

case has been concluded and the witnesses 

for the respective parties have been excused 

from their attendance upon court, whether 

the court will allow the introduction of 

other testimony is a question addressed to 

the sound discretion of the trial judge, 

". . . and unless it affirmatively appears 

that this discretion has been abused this 

court will not disturb the trial court's 

ruling thereon." 

Id. at 1064, 171 S.E. at 696 (citation omitted). See also Minor 

v. Commonwealth, 16 Va. App. 803, 805, 433 S.E.2d 39, 40 (1993). 

 We do not approve of the procedure by which the trial court 

chose to consider this evidence -- namely, to wait until the 

closing argument of counsel to announce that it would consider 

evidence it had previously ruled inadmissible. We agree that 

Filby would have been prejudiced by his inability to 

cross-examine Bunting following the trial court's reversal of 

its earlier ruling. We also find the trial court's ruling that 

it was "changing [its] rules" to be curious and inappropriate. 

 However, on the facts of this case, we find that any error 

was waived by Filby and cured by the trial court ultimately 

granting Filby the relief he sought by excluding the evidence to 

which he objected. 

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 While the trial court created confusion and uncertainty by 

repeatedly changing its ruling concerning the admissibility of 

evidence at various stages of the proceeding, the trial court 

granted Filby the relief he sought when it granted his motion to 

reconsider. In the absence of evidence to the contrary, we are 

constrained to accept a statement from a trial court, sitting as 

the trier of fact, that it did not consider evidence which it 

said it would not consider. "[I]n a bench trial, the trial 

judge is presumed to disregard prejudicial or inadmissible 

evidence, and this presumption will control in the absence of 

clear evidence to the contrary." Hall v. Commonwealth, 14 Va. 

App. 892, 902, 421 S.E.2d 455, 462 (1992) (en banc) (citation 

omitted). We do not find that Filby has overcome that 

presumption. 

III. Sufficiency of the Evidence 

 Filby argues that the evidence was insufficient as a matter 

of law to support the charge of possession of burglary tools. 

 Filby suggests initially that he could not possess the 

items in question because, as he had no key to the trunk of his 

car, he could not have dominion and control over the items 

therein. 

 The court as trier of fact was not required to accept 

Filby's testimony that he had no access to the trunk and that he 

had disposed of his mask in a dumpster. The trial court was 

entitled to consider a number of factors affecting Filby's 

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credibility. For instance, Filby made inconsistent statements 

to the police, he admitted to previous felony convictions, and 

he admitted he was under a protective order to stay away from 

his wife's residence. In addition, Filby had exclusive 

possession of the vehicle for at least a month before the 

incident. He also admitted that the items in the trunk were 

similar to what he would keep there. This evidence, together 

with the presence of the ski mask in the trunk and the other 

items, is evidence from which dominion and control can be 

reasonably inferred. 

The mere possession of burglarious tools is 

not a crime under the statute. It is 

possession with intent to use them to commit 

a crime [that is criminal]. The tools or 

implements may be, and usually are, designed 

and manufactured for lawful purposes. But 

it is unusual for a person, on a lawful 

mission, to have in his possession a 

combination of tools and implements suitable 

and appropriate to accomplish the 

destruction of any ordinary hindrance of 

access to any building . . . . All the 

statute does is to create a presumption of a 

criminal intent from proof of possession of 

burglarious tools or implements. Such a 

presumption is not conclusive; it cuts off 

no defense. It interposes no obstacle to a 

contest of all of the issues of fact, and 

relieves neither the court nor the jury of 

the duty to determine all of the questions 

of fact from the weight of the whole 

evidence. "It is merely a rule of evidence 

and not the determination of a fact." When 

possession is proven, the burden of going 

forward with the evidence shifts to the 

defendant, but this does not shift the 

burden of ultimate proof . . . . 

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Burnette v. Commonwealth, 194 Va. 785, 790-91, 75 S.E.2d 482, 

485-86 (1953). 

 Filby cites Moss v. Commonwealth, 29 Va. App. 1, 509 S.E.2d 

510 (1999), in support of his argument that the trial court's 

reliance on the statutory presumption that possession of 

burglary tools is evidence of intent is erroneous. However, 

Filby's reliance on Moss is misplaced. In Moss, we held 

[t]his presumption . . . does not attach to 

all "tools, implements, or outfit[s]" 

embraced by the statute, but only to such 

offending articles innately burglarious in 

character, those "commonly used by burglars 

in house breaking and safe cracking," 

particularly "suitable and appropriate to 

accomplish the destruction of any ordinary 

hindrance of access to any building . . . ." 

 

Id. at 4, 509 S.E.2d at 511. 

 The statute in question punishes the "possession [of] any 

tools, implements or outfit, with intent to commit burglary 

. . . ." Code § 18.2-94. We find no error in the trial court 

concluding that, in the aggregate, Filby's possession of a ski 

mask, dark clothing, duct tape, a glass cutter and a long 

screwdriver constituted "tools, implements, or outfit[s] 

innately burglarious in character." Moss, 29 Va. App. at 4, 509 

S.E.2d at 511. 

 In addition, although the trial court noted the existence 

of the statutory presumption, it did not indicate that the 

presumption represented the only evidence it relied upon as 

evidence of Filby's criminal intent. In fact, the presence of 

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Filby standing atop an air conditioning unit peering into his 

estranged wife's kitchen window in violation of a protective 

order, when coupled with his possession of items such as dark 

clothing, gloves, a glass cutter, duct tape, a lock-blade knife 

and a long screwdriver are clearly circumstances from which a 

fact finder could determine beyond a reasonable doubt that he 

intended to commit a burglary of his wife's home. 

IV. Sentencing 

 Finally, Filby complains that the trial court erred in 

sentencing him to the statutory maximum of five years for the 

"lesser offense" of wearing a mask and suspending a majority of 

the sentence on "the greater offense" of possession of 

burglarious tools. He asserts that by sentencing him in this 

fashion, the trial court insured that Filby would serve the 

amount of time suggested by the sentencing guidelines even if 

his conviction for the more serious crime were reversed on 

appeal. 

 First, and most importantly, Filby did not raise any 

objection to the sentence in the trial court, and his claim is 

thus procedurally barred. See Rule 5A:18. In any event, "when 

a statute prescribes a maximum imprisonment penalty and the 

sentence does not exceed that maximum, the sentence will not be 

overturned as being an abuse of discretion." Abdo v. 

Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977). The 

sentencing guidelines are advisory only and do not require trial 

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courts to impose specific sentences. See Runyon v. 

Commonwealth, 29 Va. App. 573, 577-78, 513 S.E.2d 872, 874 

(1999). 

Affirmed.

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