COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Clements 

Argued at Chesapeake, Virginia 

KENNETH RAY HORNE 

 MEMORANDUM OPINION* BY 

v. Record No. 2692-00-1 JUDGE RICHARD S. BRAY 

 DECEMBER 4, 2001 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Verbena M. Askew, Judge 

 (Janice G. Murphy, on brief), for appellant. 

Appellant submitting on briefs. 

 Eugene Murphy, Assistant Attorney General 

(Randolph A. Beales, Acting Attorney General, 

on brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Kenneth Ray Horne (defendant) was convicted in a bench trial 

of statutory burglary in violation of Code § 18.2-91. On appeal, 

he challenges the sufficiency of the evidence to support the 

conviction and complains the trial court erroneously failed to 

order a "competency evaluation" pursuant to Code § 19.2-169.1(A). 

For the reasons that follow, we affirm the trial court. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 
 In reviewing the sufficiency of the evidence on appeal, we 

review the record in the light most favorable to the Commonwealth, 

granting to it all reasonable inferences fairly deducible 

therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987). The judgment of the trial court will be 

disturbed only if plainly wrong or without evidence to support it. 

See id.

I. 

 At approximately 3:00 p.m. on March 29, 2000, Patricia Fritz 

heard her dog "growling and howling . . . at the door to [the] 

detached garage" at her residence. Investigating, she opened the 

"closed and locked" door, entered the garage and observed "a 

gentleman . . . crouching on the floor around the corner from the 

door." The intruder "stood up and put his hands up in a 

submissive gesture," declaring, "I don't want to hurt you . . . I 

just want to leave." Fritz immediately "backed out of the 

garage," followed by the man. Once "outside in the daylight," he 

"looked straight at [Fritz]" for several seconds, again stated, 

"he just wanted to leave," and, as Fritz watched, fled "over the 

privacy fence in the back" of her yard. 

 Fritz immediately summoned Newport News police and described 

the intruder to Detective Cheryl M. Phillips as a "[b]lack male 

approximately 5'11" and 150 pounds," "light-complected [sic]," 

with a "thin moustache," "wearing a dark blue sweatshirt and work 

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pants." In reporting the incident, Fritz also noted "a bicycle 

and a heat gun" missing from the garage. 

 Approximately one month later, on May 1, 2000, while 

responding to an unrelated "burglary call," Detective Phillips 

observed defendant "pop out of the field" and "wav[e] at [her]." 

Noting he was clothed in "a sweatsuit, dark navy blue sweatsuit," 

apparel consistent with the description previously provided by 

Fritz, Phillips "stopp[ed]" defendant, requested identification 

and, upon learning of "outstanding warrants," arrested him. 

 With defendant in custody, Phillips telephoned Fritz, advised 

"[s]he had stopped someone that . . . fit [Fritz's] description" 

of the intruder and requested Fritz accompany her to a "show-up to 

see if [Fritz] could identify him as the man . . . observed in her 

shed." Fritz agreed and Phillips transported her to the scene of 

arrest, where defendant was "standing next to a police car" with a 

uniformed police officer, and Fritz identified him as the 

perpetrator. 

 When later called as a witness for the Commonwealth at trial, 

on September 27, 2000, the prosecutor asked Fritz to "tell us 

about [the show-up]," and, in a narrative response, she 

volunteered, "[a]t the time [she] was sure that [defendant] was" 

the man in her garage on March 29, 2000. (Emphasis added.) No 

further identification evidence was elicited from the witness by 

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the prosecutor. Thus, as the Commonwealth concedes, "Fritz did 

not . . . identify [defendant] in court" as the intruder.1

 Accordingly, defendant challenged the sufficiency of the 

Commonwealth's evidence, arguing to the trial court that "there 

has been no, in-court, identification of [the defendant]" and, 

even "[i]f there had been, then . . . [Fritz was only] identifying 

the person that was pointed out to her at the show-up."2 

Defendant further argued that the evidence was insufficient to 

establish the requisite "breaking" and "intent to commit larceny" 

elements of burglary. The court dismissed the grand larceny 

charge, but convicted defendant of burglary, resulting in the 

instant appeal. 

II. 

A. 

 To sustain a conviction, the Commonwealth's evidence must 

identify the accused as the criminal actor beyond a reasonable 

doubt. Brickhouse v. Commonwealth, 208 Va. 533, 536, 159 S.E.2d 

611, 613-14 (1968). 

 1

 Defendant's argument that defendant was not identified at 

trial as the suspect presented to Fritz at the earlier "show-up" 

is belied by the record. The testimony of Detective Phillips 

clearly referenced "the defendant," then present in court, as 

the person arrested and identified by Fritz, and the trial court 

noted for the record that Phillips had "actually pointed to 

[defendant]." 

2

 Defendant does not challenge the admissibility of the 

show-up identification. 

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"An out-of-court identification is 

admissible if either (1) the identification 

was not unduly suggestive; or (2) the 

procedure was unduly suggestive, but the 

identification was so reliable that there is 

no substantial likelihood of 

misidentification." Show-up identifications 

are not per se violative of constitutional 

rights, and such identifications will not be 

declared invalid unless a review of the 

totality of the circumstances shows a 

substantial likelihood of misidentification. 

Dance v. Commonwealth, 32 Va. App. 466, 471-72, 528 S.E.2d 723, 

726 (2000) (citations omitted). Thus, pretrial identifications, 

"when considered with all the other circumstances in the case," 

may sufficiently establish the evidence of identity necessary to 

sustain a conviction. Martin v. Commonwealth, 210 Va. 686, 692, 

173 S.E.2d 794, 799 (1970). 

 In Neil v. Biggers, 409 U.S. 188 (1972), the United States 

Supreme Court enunciated five factors relevant to a reliability 

assessment of an out-of-court identification: 

the opportunity of the witness to view the 

criminal at the time of the crime, the 

witness' degree of attention, the accuracy 

of the witness' prior description of the 

criminal, the level of certainty 

demonstrated by the witness at the 

confrontation, and the length of time 

between the crime and the confrontation. 

Id. at 199-200; see Dance, 32 Va. App. at 472, 528 S.E.2d at 

726. 

 Here, application of the several factors in a Biggers

analysis clothes Fritz's show-up identification with sufficient 

reliability to prove defendant was the man discovered in her 

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garage. Fritz observed the intruder, face to face, during 

daylight hours, both inside and outside of her garage, and 

exchanged words with him during the encounter, circumstances 

that permitted an unobstructed and focused view of the man. Her 

description of him to police immediately following the incident 

was sufficiently detailed, both in physical characteristics and 

dress, to prompt later recognition of defendant by Detective 

Phillips. In the subsequent show-up, Fritz was "sure" defendant 

was the man she had confronted one month earlier on her 

property, and the intervening time clearly had not dulled her 

recollection. Thus, considered in totality, Fritz's 

extra-judicial identification was sufficient to prove guilt 

beyond a reasonable doubt.3

B. 

 Defendant next contends the evidence was insufficient to 

establish a "breaking." We disagree. 

"Breaking, as an element of the crime of 

burglary, may be either actual or 

constructive . . . . Actual breaking 

involves the application of some force, 

slight though it may be, whereby the 

entrance is effected. Merely pushing open a 

door, turning the key, lifting the latch, or 

resort to other slight physical force is 

 3

 Defendant's reliance upon Smallwood v. Commonwealth, 14 

Va. App. 527, 418 S.E.2d 567 (1992), is misplaced. In 

Smallwood, the Biggers factors were applied to find unreliable a 

witness' equivocal identification of the accused at trial, when 

considered in the context of limited opportunity to view the 

offender at the time of the offense and inconsistent 

descriptions. 

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sufficient to constitute this element of the 

crime." 

Bright v. Commonwealth, 4 Va. App. 248, 252, 356 S.E.2d 443, 445 

(1987) (quoting Johnson v. Commonwealth, 221 Va. 872, 876, 275 

S.E.2d 592, 594-95 (1981)). 

 Here, Fritz testified that the garage was "secured," the 

door "closed and locked," immediately before she discovered the 

intruder "crouching" inside. Such evidence, viewed in the light 

most favorable to the Commonwealth, was clearly sufficient to 

prove the requisite "breaking" had attended the unlawful entry. 

C. 

 Defendant further challenges the sufficiency of the 

evidence to prove the necessary "intent to commit larceny." 

Again, we disagree. 

 "[W]hen an unlawful entry is made into [the] 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." Ridley v. Commonwealth, 219 Va. 834, 836, 252 

S.E.2d 313, 314 (1979). Thus, "[i]n the absence of evidence 

showing a contrary intent, the trier of fact may infer that a 

defendant's unauthorized presence in [the] house or building of 

another . . . was with the intent to commit larceny." Id. at 

837, 252 S.E.2d at 314. 

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 Defendant broke and entered a residential garage belonging 

to Fritz, which then contained considerable personal property. 

Fritz discovered "a bicycle and a heat gun" missing from the 

garage immediately after the intruder was discovered and had 

fled. Thus, the circumstances, again viewed in the light most 

favorable to the Commonwealth, sufficiently established that 

defendant intended "to commit larceny" when he entered the 

structure. 

III. 

 Lastly, defendant contends he was entitled to a second 

competency evaluation, despite an initial examination that 

declared him competent for trial. Defendant requested no second 

evaluation, a related continuance or similar relief. To the 

contrary, his counsel assured the trial court, "[Defendant] 

advised me that he wants to go ahead with his trial date." 

Defendant cannot "'approbate and reprobate . . . invite error 

. . . and . . . take advantage of the situation created by his 

own wrong.'" Manns v. Commonwealth, 13 Va. App. 677, 680, 414 

S.E.2d 613, 615 (1992) (quoting Fisher v. Commonwealth, 236 Va. 

403, 417, 374 S.E.2d 46, 54 (1988)). Thus, the court, by 

acceding to defendant's request, committed no reversible error. 

 Accordingly, we find no error in the proceedings below and 

affirm the conviction. 

 Affirmed. 

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