COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Bray and Annunziata 

Argued at Alexandria, Virginia 

VICTOR VSAY HUCKS 

 OPINION BY 

v. Record No. 0983-99-4 JUDGE ROSEMARIE ANNUNZIATA 

 AUGUST 1, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF ARLINGTON COUNTY 

Joanne F. Alper, Judge 

Mark S. Thrash for appellant. 

Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on 

brief), for appellee. 

Victor Hucks was convicted by a jury in the Circuit Court 

of Arlington County of breaking and entering with intent to 

commit larceny, in violation of Code § 18.2-91. On appeal, 

Hucks contends the trial court erred 1) in giving a jury 

instruction offered by the Commonwealth to which he objected; 

and 2) in denying his motion to strike the Commonwealth's 

evidence for failure to prove intent to commit larceny. For the 

reasons that follow, we affirm the conviction. 

FACTS

On appeal, we "examine the evidence and all inferences 

reasonably deducible therefrom in the light most favorable to 

the Commonwealth, the prevailing party in the trial court." 
Taylor v. Commonwealth, 31 Va. App. 54, 64, 521 S.E.2d 293, 298 

(1999) (en banc) (quoting Commonwealth v. Jenkins, 255 Va. 516, 

521, 499 S.E.2d 263, 265 (1998)). On July 3, 1997, bookkeeper 

Donna Sarber arrived at her office in the Arlington law firm of 

Walsh, Colucci, and Stackhouse between 5:00 a.m. and 5:30 a.m. 

Sarber used her security key to gain access to the elevator and 

rode the elevator to the firm's office suite on the thirteenth 

floor of the building. She entered the suite through the 

kitchen door and deactivated the suite's security system. The 

suite's exterior doors are designed to close and lock 

automatically upon being shut, and the main entrance to the 

suite remains locked until the receptionist arrives at 8:30 a.m. 

After entering the suite, Sarber went to her office and began 

working. 

Attorney Shawn McMullen arrived at the firm at 

approximately 6:00 a.m. McMullen also entered the suite by 

unlocking the kitchen door, because that is the only entrance 

through which one may enter and deactivate the alarm system. 

McMullen noted the alarm system had been deactivated, indicating 

that someone had already entered the suite. He was aware Sarber 

routinely arrived at work early. McMullen walked through the 

suite to the reception area and observed that the main doors 

were closed. He noticed Sarber's office light and radio were 

on. He proceeded to his office and shut the door. 

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Within five to ten minutes of McMullen's arrival, Hucks 

opened McMullen's office door. McMullen was surprised to see a 

stranger in the office at that early hour. Hucks asked if there 

was someone named Denise in the office. McMullen replied that 

he knew no one by that name, and Hucks apologized for the 

interruption and shut the door. Hucks reopened the door and 

told McMullen that he appeared to be "in a trinity of thought," 

and shut the door again. McMullen was concerned about the 

presence of the stranger in the office and decided to walk to 

Sarber's office to see if she was alright. As he walked to her 

office, he heard the suite's exit door slam shut. When he 

arrived at Sarber's office, he found her on the telephone, 

reporting the intruder to the police. Sarber had also seen 

Hucks as he walked past an interior window that opened onto the 

hallway outside her office. 

McMullen and Sarber walked through the office suite and 

determined that all the doors through which the suite could be 

entered were locked and secured. They noticed that the door to 

the room containing the office's telephone equipment, located 

just across the hall from McMullen's office, was ajar. The door 

was closed when McMullen arrived at work that morning. 

Officer Justin McNaul responded to Sarber's report of a 

possible burglary in progress and, based upon her description of 

the intruder, stopped Hucks as he was leaving the office 

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building. Hucks admitted that he had been inside the Walsh, 

Colucci office suite. Officer McNaul conducted a pat-down to 

check Hucks for weapons and discovered an eight-inch slotted 

screwdriver tucked into his waistband. Hucks became agitated 

and clenched his fists, backing away from McNaul. McNaul, aided 

by another police officer, placed Hucks in handcuffs. Sarber 

and McMullen then came outside and identified him as the 

individual they had encountered in the office. Hucks was 

searched further, and a latex glove was found in his vest 

pocket. Hucks' car was subsequently searched, and the police 

discovered several screwdrivers with bent or altered tips and a 

kitchen knife also with a bent tip. 

An investigation of the office suite revealed no evidence 

of forced entry. No usable fingerprints were recovered. 

However, the police determined the front door to the office 

suite had a locking mechanism that easily could be "jimmied" 

with a flat-edged instrument, without leaving any pry marks. 

At the conclusion of his trial, Hucks argued that, although 

the evidence was sufficient to prove intent to break and enter, 

it was not sufficient to prove intent to commit larceny. He 

argued that in order to permit an inference of intent to commit 

larceny, the evidence had to show that a breaking and entering 

had occurred at night. The court decided, however, that in 

cases dealing with breaking and entering of business premises, 

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"nighttime" means any time outside normal business hours. On 

that ground, the court held the Commonwealth had presented a 

prima facie case of breaking and entering with intent to commit 

larceny. 

Hucks subsequently objected to the Commonwealth's proposed 

jury instruction 8, which stated: 

In the absence of evidence showing a 

contrary intent, you may infer that a 

defendant's unauthorized presence in a 

building of another was with the intent to 

commit larceny. 

Hucks contended that the instruction did not correctly state the 

law, because it omitted the words "in the nighttime." The court 

overruled Hucks’ objection, concluding that under Code 

§§ 18.2-90 and 18.2-91, "in the nighttime" means any time 

outside normal business hours. The jury found Hucks guilty of 

breaking and entering with intent to commit larceny. 

COMMONWEALTH'S CHALLENGED JURY INSTRUCTION

"A reviewing court's responsibility in reviewing jury 

instructions is 'to see that the law has been clearly stated and 

that the instructions cover all issues which the evidence fairly 

raises.'" Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 

S.E.2d 717, 719 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 

503, 290 S.E.2d 856, 858 (1982)). "[A] jury must be informed as 

to the essential elements of the offense; a correct statement of 

the law is one of the 'essentials of a fair trial.'" Id.

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(quoting Dowdy v. Commonwealth, 220 Va. 114, 116, 255 S.E.2d 

506, 508 (1979)). "Both the Commonwealth and the defendant are 

entitled to appropriate instructions to the jury of the law 

applicable to each version of the case, provided such 

instructions are based upon the evidence adduced." Stewart v. 

Commonwealth, 10 Va. App. 563, 570, 394 S.E.2d 509, 514 (1990) 

(citation omitted). 

Code § 18.2-91 provides, in pertinent part, that if any 

person breaks and enters an office in the daytime, or enters 

without breaking in the nighttime, "with intent to commit 

larceny . . . he shall be guilty of statutory burglary . . . ."1 

A "breaking" within the meaning of the statutes may be actual or 

constructive. See Johnson v. Commonwealth, 221 Va. 872, 876, 

275 S.E.2d 592, 594 (1981). Whenever a statute establishes an 

offense comprised of an act combined with a particular intent, 

"proof of such intent is as necessary as proof of the act itself 

and must be established as a matter of fact." Ridley v. 

Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979) 

(citing Patterson v. Commonwealth, 215 Va. 698, 699, 213 S.E.2d 

752, 753 (1975)) (additional citation omitted). "Intent is the 

purpose formed in a person's mind which may, and often must, be 

 1

 Code § 18.2-91 incorporates by reference all those aspects 

of Code § 18.2-90 except the crimes of murder, robbery, rape or 

arson. 

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inferred from the facts and circumstances in a particular case. 

The state of mind of the offender may be shown by his acts and 

conduct." Id. (citing Hargrave v. Commonwealth, 214 Va. 436, 

437, 201 S.E.2d 597, 598 (1974)) (additional citation omitted). 

In a prosecution for statutory burglary with intent to commit 

larceny, the Commonwealth must prove the accused's specific 

intent to commit larceny beyond a reasonable doubt, although it 

may, and often must, prove such intent by circumstantial 

evidence. See id.

"[A]n unlawful entry into [the] dwelling of another [gives 

rise to a] presumption . . . 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." Tompkins v. Commonwealth, 212 Va. 460, 461, 184 

S.E.2d 767, 768 (1971). This principle applies equally to 

business premises. See Ridley, 219 Va. at 836, 252 S.E.2d at 

314. "In the absence of evidence showing a contrary intent, the 

trier of fact may infer that a person’s unauthorized presence in 

another's house was with the intent to commit larceny." 

Sandoval v. Commonwealth, 20 Va. App. 133, 137, 455 S.E.2d 730, 

732 (1995) (citing Ridley, 219 Va. at 837, 252 S.E.2d at 315). 

Although we find no basis in the law to support the view 

that any time outside normal business hours may be equated with 

"nighttime," we hold the Commonwealth's challenged jury 

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instruction appropriately stated the law. "[A]n appellate court 

may affirm the judgment of a trial court when it has reached the 

'right result for the wrong reason.'" Bynum v. Commonwealth, 28 

Va. App. 451, 458, 506 S.E.2d 30, 34 (1998) (quoting Driscoll v. 

Commonwealth, 14 Va. App. 449, 451, 417 S.E.2d 312, 313 (1992)). 

In Sandoval, we held that, in the absence of evidence to the 

contrary, the trier of fact was entitled to infer the 

defendant's intent to commit larceny from his unauthorized 

presence in another's dwelling, irrespective of the time of day. 

We cited Ridley in support of our decision. Hucks correctly 

argues that in Ridley, in which this inference was first 

enunciated, the Supreme Court stated the fact finder was 

entitled to infer larcenous intent based upon the defendant's 

unauthorized presence in a storehouse "in the nighttime." The 

Court incorporated that phrase into its statement of the 

inference because the record before it revealed the defendant to 

have been present in the storehouse at 9:30 p.m. However, the 

gravamen of the analysis was not the time at which the unlawful 

entry occurred but whether, upon consideration of the facts and 

circumstances of the case, the defendant's unlawful presence 

could be deemed sufficient to infer an intent to commit larceny. 

In extending the inference of intent to commit larceny to 

business premises, the Court, viewing "the surrounding facts and 

circumstances" of the case before it, held that the jury was 

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entitled to draw such an inference from Ridley's unauthorized 

presence in the storehouse at night. The Court did not 

specifically limit the inference to situations in which the 

defendant's unauthorized presence on another's premises occurs 

at night. 

In Jones v. Commonwealth, 3 Va. App. 295, 349 S.E.2d 414 

(1986), we followed Tompkins and Ridley in holding that an 

unlawful entry upon another's business premises allows a 

presumption 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." Id. at 

299, 349 S.E.2d at 417 (citing Tompkins, 212 Va. at 461, 184 

S.E.2d at 768). There, we stated that the defendant's entry of 

a retail store during normal business hours, and his act of 

concealing himself within the store until it closed, constituted 

a constructive breaking and entering and provided "surrounding 

facts and circumstances" sufficient to permit the fact finder to 

infer his specific intent to commit larceny. See id. at 300, 

349 S.E.2d at 417. 

Here, the surrounding facts and circumstances of the case 

support the conclusion that Hucks entered the office suite 

unlawfully. He was found in the premises over two hours before 

the beginning of normal business hours, while the doors to the 

suite were all shut and locked. He possessed an altered 

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screwdriver and a latex glove. These items provide grounds to 

infer forced entry, particularly given the evidence that the 

doors to the office suite lock automatically upon being shut and 

that the main door was of a type that could easily be "jimmied" 

without leaving any pry marks. This evidence permitted the fact 

finder to infer Hucks entered for an unlawful purpose and to 

infer his specific intent to commit larceny. See id. Thus, the 

trial court's instruction of the jury was supported by the 

analyses of Ridley, Sandoval, and Jones, and we affirm on that 

basis. 

SUFFICIENCY OF THE EVIDENCE

"'When considering the sufficiency of the evidence on 

appeal of a criminal conviction, we must view all the evidence 

in the light most favorable to the Commonwealth and accord to 

the evidence all reasonable inferences fairly deducible 

therefrom. The jury's verdict will not be disturbed unless 

plainly wrong or without evidence to support it.'" Clark v. 

Commonwealth, 30 Va. App. 406, 409-10, 517 S.E.2d 260, 261 

(1999) (quoting Traverso v. Commonwealth, 6 Va. App. 172, 176, 

366 S.E.2d 719, 721 (1988)). We find no merit in Hucks' 

contention that the evidence adduced at trial was insufficient 

to support the jury's conclusion that he intended to commit 

larceny. As noted, Hucks' unauthorized presence in the office 

suite before normal business hours permitted an inference that 

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he intended to commit larceny. See Ridley, 219 Va. at 837, 252 

S.E.2d at 314; Sandoval, 20 Va. App. at 138, 455 S.E.2d at 732. 

In addition to his unauthorized presence, the evidence proved 

Hucks possessed a screwdriver whose tip was altered sufficiently 

to serve as a burglary tool, and a latex glove that would 

prevent his fingerprints from being detected on a door he might 

manipulate for entry. Officer McNaul testified that several 

additional altered screwdrivers were found in Hucks' car. 

Viewing the evidence in the light most favorable to the 

Commonwealth, we cannot say the jury plainly erred in concluding 

Hucks entered the office suite with the intent to commit 

larceny. Accordingly, we affirm his conviction. 

 Affirmed. 

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