COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Salem, Virginia 

ALBERT SPENCER MITCHELL, JR. 

 MEMORANDUM OPINION* BY 

v. Record No. 0730-96-3 JUDGE JOHANNA L. FITZPATRICK 

 APRIL 29, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY 

Porter R. Graves, Jr., Judge 

 Roland M. L. Santos for appellant. 

 John K. Byrum, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General; Ruth Ann Morken, Assistant Attorney 

General, on brief), for appellee. 

 Albert Mitchell (appellant) was convicted in a bench trial 

of breaking and entering with the intent to commit larceny in 

violation of Code § 18.2-89. The sole issue on appeal is whether 

the trial court erred in finding the evidence sufficient to prove 

larcenous intent. 

 On August 26, 1995, at approximately 3:30 a.m., appellant, a 

former boyfriend of Jamie Farley (the victim), arrived at her 

house and "smashed out the [door] window, and opened the door, 

and let himself in." The victim's purse was a "foot or two" from 

the door. Farley awoke to see appellant standing over her bed 

and told him to leave the house. After a brief altercation, 

appellant left and on his way out, he took Farley's purse which 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
 2 

was on the kitchen counter. 

 The following day, appellant called Farley and attempted to 

return her purse. She told him to contact the police. 

Subsequently, he made arrangements with Sergeant Kevin Lanoue 

(Sgt. Lanoue) of the Harrisonburg Police Department to give a 

statement regarding the break-in and to return Farley's purse. 

When appellant returned the purse, none of the contents were 

missing. 

 Appellant contends that he went to Farley's house on August 

26, 1995, because she told him she was pregnant and contemplating 

suicide, and that he and Farley made arrangements to get a 

pregnancy test on Friday, August 26, 1995. When Farley failed to 

arrive, he went to her house in Harrisonburg and broke in because 

he was concerned about her. He stated that when he confronted 

Farley and Craig in the bedroom, he asked her why she told him 

she was pregnant, and her response was that she wanted him to pay 

some bills. Farley denied telling appellant that she was 

pregnant or that she was thinking of killing herself. 

 Appellant gave conflicting statements to the police. His 

first statement was that: 

 [H]e had gone to see Ms. Farley and found out 

that she was with Mr. Craig and became very 

upset. . . . [H]e smashed out the window and 

opened the door and let himself in and got in 

an argument with Mr. Craig in the apartment, 

left, took her purse because he wanted an 

address to her ex-husband and the address to 

her ex-husband was in her purse and he wanted 

to get in touch with that gentleman. So, he 

took her purse to get that address and left. 
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Later he made a second statement that Sgt. Lanoue summarized as 

follows: 

 He advised me that he had gotten a call from 

Ms. Farley stating that she was pregnant with 

his child and he had wanted to get in touch 

with her regarding her pregnancy with that 

child and was unable to do so. What he did 

is he went to the residence, couldn't get 

anybody to the door, smashed out a window, 

opened the door and went in, got involved in 

the altercation with Mr. Craig, . . . and 

took the purse because, again, it had the 

address of her ex-husband in it and left the 

residence. 

 On appeal, this Court views the evidence in the "light most 

favorable to [the prevailing party], the Commonwealth, granting 

to it all reasonable inferences fairly deducible therefrom." 

Welch v. Commonwealth, 15 Va. App. 518, 523, 425 S.E.2d 101, 105 

(1992). The trial court's decision will not be disturbed unless 

plainly wrong or without evidence to support it. Peterson v. 

Commonwealth, 5 Va. App. 389, 401, 363 S.E.2d 440, 448 (1987). 

"The credibility of the witnesses and the weight accorded the 

evidence are matters solely for the fact finder who has the 

opportunity to see and hear that evidence as it is presented." 

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 

732 (1995). The court is free to weigh the testimony and to 

judge the credibility of the witnesses. In the face of 

conflicting testimony and evidence, the court is under no 

obligation to believe the accused's explanation, and may infer 

that he is trying to conceal his guilt. See Carter v. 

Commonwealth, 223 Va. 528, 290 S.E.2d 865 (1982). 
 4 

 Code § 18.2-89 states as follows: "If any person break and 

enter the dwelling house of another in the nighttime with intent 

to commit larceny . . . he shall be guilty of burglary . . . ." 

Clark v. Commonwealth, 22 Va. App. 673, 472 S.E.2d 663 (1996), 

aff'd, 24 Va. App. 253, 481 S.E.2d 495 (1997). 

 [W]hen an unlawful entry is made into a 

dwelling of another, the presumption is that 

the entry was made for an unlawful purpose, 

and the specific intent with which such entry 

was made may be inferred from the surrounding 

facts and circumstances . . . . 

 The rule, as applied in most 

jurisdictions, is that in a prosecution of 

burglary with intent to commit larceny, the 

state must prove the specific intent to steal 

beyond a reasonable doubt, although it may 

and frequently must prove such intent by the 

facts and circumstances. In the absence of 

evidence showing a contrary intent, the trier 

of fact may infer that a defendant's 

unauthorized presence in a house or building 

of another in the nighttime was with intent 

to commit larceny. 

Jones v. Commonwealth, 3 Va. App. 295, 299-300, 349 S.E.2d 414, 

417 (1986). Accord Black v. Commonwealth, 222 Va. App. 838, 840, 

284 S.E.2d 608, 609 (1981); Ridley v. Commonwealth, 219 Va. 834, 

252 S.E.2d 313 (1979); Tompkins v. Commonwealth, 212 Va. 460, 

461, 184 S.E.2d 767, 768 (1971); see also Sandoval, 20 Va. App. 

at 137, 455 S.E.2d at 732 ("The state of mind of an accused may 

be shown by his acts and conduct.") (citations omitted). 

Further, "where larceny has actually been committed that is the 

best evidence of intent with which breaking was committed." 

Smyth v. Morrison, 200 Va. 728, 734, 107 S.E.2d 430, 435 (1959). 
 5 

 When so viewed, the evidence was sufficient to convict 

appellant of breaking and entering with the intent to commit 

larceny. In the instant case, the evidence established that 

appellant broke in and took the victim's purse, and he intended 

to do so when he broke into her home. Appellant first told 

police that "he had gone to see Ms. Farley and found out she was 

with Mr. Craig." At that point, he "became very upset" and 

"banged on the door." When no one would come to the door, he 

"smashed out the window and opened the door and let himself in." 

 At the time, the purse was "maybe a foot or two from the door at 

the most." Appellant said he took the purse to get a phone 

number for Farley's ex-husband, the father of her infant 

daughter, and tell him of her behavior. From this evidence, the 

trial court could reasonably conclude that at least one of the 

reasons that appellant broke into the house was to steal the 

purse. 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed.