COURT OF APPEALS OF VIRGINIA

Present: Judg es Bray, Frank and Clements Argued at Ches apeake, Virginia

KENNETH RAY HORNE MEMORANDUM OPINION * BY v. Record No. 2692-00-1 JUDGE RICHAR D S. BRAY DECEMBER 4, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Verbena M. As kew, Judge (Janice G. Murphy, on brief), for appellant. Appellant submitting on briefs. Eugene Murphy, Assi stant Attorney General (Randolph A. Beales, Acti ng Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Kenneth Ray Ho rne (defendant) was convicted in a bench trial of statutory burgla ry in violation of Code § 18.2-9 1. On appeal, he challenges the su fficiency of the evid ence to su pport the conviction and compla ins the trial co urt erroneousl y failed to order a "competency evaluation" purs uant to Code § 19.2-169.1(A). For the reasons that follow, we affi rm the trial court. The parties ar e fully conversa nt with the re cord, and this memorandum opinion re cites only those fa cts necess ary to a disposition of the appeal.In reviewing the su fficiency of the evid ence on appeal, we review the record in the light most favorabl e to the Co mmonwealth, granting to it all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth , 4 Va. App. 43 8, 443, 358 S.E.2d 415, 418 (1987). The judgment of the trial cour t will be disturbed only if plainly wrong or without evid ence to su pport it.
See id.

I. At approximatel y 3:00 p.m. on March 29 , 2000, Patricia Fritz heard her dog "gro wling and howlin g . . . at the door to [the] detached garage" at he r residence. Investigating, she opened the "closed and locked" door, entere d the garage and observed "a gentleman . . . cr ouching on the floor arou nd the corner from the door." The in truder "stood up and put his hand s up in a submissive gesture," de claring, "I do n't want to hurt you . . . I just want to leave." Fritz immediately "bac ked out of the garage," followed by th e man. Once "outside in the daylight," he "looked straig ht at [Fritz]" for severa l seconds, again stated, "he just wanted to le ave," and, as Fritz watched, fled "over the privacy fence in the back" of her yard. Fritz immediatel y summoned Newport News police and described the intruder to Detective Cher yl M. Phillips as a "[b]lack male approximately 5' 11" and 150 poun ds," "light-com plected [sic]," with a "thin moustache, " "wearing a dark blue sweatshirt and work

- 2 -pants." In repo rting the incident , Fritz also no ted "a bicycle and a heat gun" miss ing from the garage. Approximately one month late r, on May 1, 2000, while responding to an unre lated "burglary call," Detect ive Phillips observed defendant "pop out of the field" an d "wav[e] at [her]." Noting he was clothed in "a sweats uit, dark navy blue sweatsuit," apparel consis tent with the de scription pr eviously provided by Fritz, Phillips "stopp [ed]" defendant, requested id entification and, upon learning of "outstanding warran ts," arrested him. With defendant in cu stody, Phillips teleph oned Fritz, advised "[s]he had stopped some one that . . . fit [F ritz's] desc ription" of the intruder and re quested Fritz ac company her to a "show-up to see if [Fritz] could id entify him as the man . . . observ ed in her shed." Fritz ag reed and Phillips transpor ted her to the scene of arrest, where defendant was "standin g next to a poli ce car" with a uniformed police officer, and Fritz id entified 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. (E mphasis adde d.) No further identi fication evidence was elicited from the witness by

- 3 -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 defe ndant]" and, even "[i]f there had be en, then . . . [Fritz was only] id entifying the person that wa s pointed out to he r at the show-up." 2
Defendant furt her argued that the evidence was insufficient to establish the requ isite "breakin g" and "intent to commit larceny" elements of bu rglary. The court dism issed the gr and larceny charge, but conv icted defendant of burglary, re sulting 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. - 4 -"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

- 5 -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. - 6 -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.

- 7 -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.

- 8 -