Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Lacy, S.J.
AUBREY DWIGHT JONES, JR.
v. Record No. 090265 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
COMMONWEALTH OF VIRGINIA JANUARY 15, 2010
FROM THE COURT OF APPEALS OF VIRGINIA
Aubrey Dwight Jones appeals from a judgment of the Court of
Appeals affirming his convictions in the Circuit Court of the
City of Hampton for burglary while armed with a deadly weapon,
conspiracy to commit burglary, and wearing body armor while
committing a crime, violations of Code §§ 18.2-91, 18.2-22 and –
91, and 18.2-287.2, respectively. Jones v. Commonwealth, Record
No. 1201-08-1 (Feb. 3, 2009). He claims that the evidence was
insufficient to prove that he committed these crimes. For the
reasons stated below, we conclude that there is sufficient
evidence in this record to support the convictions and therefore
will affirm the judgment of the Court of Appeals.
Applying principles of appellate review, we recite the
facts in the light most favorable to the prevailing party below,
the Commonwealth. Viney v. Commonwealth, 269 Va. 296, 299, 609
S.E.2d 26, 28 (2005). In the early evening of April 9, 2007,
Catherine Callahan and Jermaine Outlaw were at Outlaw’s
apartment when they began arguing. At one point, Outlaw called
Callahan a “bitch.” Callahan became upset and left the
apartment saying that she “was going to do something about it.”
Callahan called Jones telling him she was upset with Outlaw’s
“slander.” Following that conversation, Jones and Callahan met
and picked up a third person, Sheldon Parker. The trio returned
to Outlaw’s apartment at Callahan’s direction to “discuss it”
with Outlaw.
When they arrived at Outlaw’s apartment around 2:00 A.M. on
April 10, 2007, Callahan went to the door and was let in by
Jeremy Blackburn, another resident of the apartment. Callahan
told Blackburn that she had some friends she was bringing into
the apartment and that “if anything was going to happen tonight,
[Blackburn was] not to worry about it.” Callahan returned to
the hallway outside the apartment and re-entered the apartment
with Jones and Parker. Jones was wearing a gun on his waist and
Parker had an asp ∗ in his hand. Callahan showed the two men
Outlaw’s bedroom and she went into the bathroom. Jones and
Parker began knocking on Outlaw’s bedroom door, asking Outlaw to
come out and talk. Outlaw did not respond and Jones tried to
open the door but it was locked. He then kicked in the door.
Outlaw was not in the bedroom but the window was open. Parker
and Jones left the apartment to look for Outlaw. Jones returned
∗
An “asp” or “asp baton” is an extendable bludgeoning weapon
capable of inflicting blunt force trauma. See Gray v. Rhoads,
268 Va. 81, 84-85, 597 S.E.2d 93, 95 (2004).
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a short time later saying that the police were outside. Jones
then told Timothy Ellyson, another resident of the apartment, to
tell the police that they “were just chilling in the house
watching television.”
When the police arrived at the apartment they recovered a 9
millimeter semi-automatic handgun with rounds in the clip and a
bulletproof vest from Jones. They also recovered a pair of
brass knuckles and a pair of black gloves. An asp was found
near the car Jones had driven that night. Jones told the police
officers that he was at Outlaw’s apartment to “seek an apology”
and that he carried a gun and wore body armor because of his job
as a security officer.
DISCUSSION
1. Statutory Burglary
We begin with Jones’ claim that the evidence was
insufficient to support his conviction for statutory burglary in
violation of Code § 18.2-91. Code § 18.2-91 defines statutory
burglary as a violation of Code §§ 18.2-89 or 18.2-90 with the
intent to commit assault and battery. Code § 18.2-90 provides
that a person armed with a deadly weapon commits a Class 2
felony if he enters a dwelling in the nighttime without
breaking.
To sustain the statutory burglary conviction the
Commonwealth was required to prove that at the time Jones
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entered the apartment he intended to commit an assault and
battery. See Vincent v. Commonwealth, 276 Va. 648, 652, 668
S.E.2d 137, 140 (2008). Intent can be inferred from the facts
and circumstances of a case and shown by the acts of the
defendant. Id. at 652-53, 668 S.E.2d at 140.
The evidence in this case established that Jones went to
Outlaw’s apartment at Callahan’s request because she was upset
with Outlaw. When Jones entered the apartment he was wearing
body armor and was armed with a firearm. His companion was
carrying an asp. Upon entering the apartment Jones immediately
went to confront Outlaw, banged on his bedroom door, and
ultimately kicked in the door when Outlaw did not respond. The
two men then rushed out of the apartment in pursuit of Outlaw
who apparently had escaped through his bedroom window. These
facts support a finding that Jones intended to assault Outlaw at
the time Jones entered the apartment.
We reject Jones’ argument that his statements to police
that he went to the apartment only to get an apology from Outlaw
and that he always wore body armor and carried a gun because of
his job demonstrate that he did not have the intent to assault
at the time he entered the apartment. Furthermore, the fact
finder was entitled to discount these self-serving statements or
view them as an effort to conceal his guilt. Shackleford v.
Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 907 (2001).
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Jones also argues that the evidence was insufficient to
establish statutory burglary because he entered the apartment
with the consent of one of its occupants. Jones relies
primarily on Davis v. Commonwealth, 132 Va. 521, 523, 110 S.E.
356, 357 (1922), in which this Court reversed a conviction of
burglary because the defendant had been given a key to the
premises and had the owner’s permission to enter at any time.
The Court stated that “a breaking, either actual or
constructive, to support a conviction of burglary, must have
resulted in an entrance contrary to the will of the occupier of
the house.” Id. Jones argues that here an occupant of the
apartment let Callahan into the apartment and voiced no
objection when Jones entered the apartment. Therefore, Jones
concludes his entry into the dwelling place was not against the
will of the occupant and will not support a conviction for
statutory burglary.
We disagree with Jones’ argument that Davis has any
application to this case. The Davis opinion makes it clear that
“breaking,” a required element of the crime charged under the
law governing at that time, was central to that decision. See
132 Va. at 523, 110 S.E. at 357. However, “breaking” is not an
element of the crime in the instant case because the entry
occurred at night. Code § 18.2-90; Finney v. Commonwealth, 277
Va. 83, 88, 671 S.E.2d 169, 172 (2009). Furthermore, in Davis
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this Court stated that a person authorized to enter a dwelling
may nevertheless be guilty of burglary if that person “actually
enters for the purpose of carrying out a previously formed
design to commit a felony.” Davis, 132 Va. at 524, 110 S.E. at
357. Thus, permission or authorization to enter may be negated
by the invitee's or guest's intent for purposes of establishing
burglary or statutory burglary. In the present case, any
permission to enter the apartment given to Jones does not
preclude a conviction for statutory burglary because that
permission would have been negated by his intent to commit
assault and battery, an intent fully supported by the record in
this case as discussed above.
2. Conspiracy
Jones also claims that the evidence was insufficient to
support his conviction for conspiracy. As discussed above, the
record supports the finding that Jones entered Outlaw’s
apartment during the evening with the intent of committing
assault and battery. To sustain a conviction for conspiracy in
this case, the Commonwealth was required to show that there was
an agreement between Jones and Callahan before they entered the
apartment to commit the felony.
Code § 18.2-22, conspiracy to commit a felony, is violated
when two or more persons agree to commit a felony offense,
regardless of whether any act in furtherance of the underlying
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crime has been performed. Gray v. Commonwealth, 260 Va. 675,
680, 537 S.E.2d 862, 865 (2000). Proof of an explicit agreement
is not required and the requisite agreement may be established
by circumstantial evidence. Id. Because of the nature of the
offense, an agreement often may only be established by
circumstantial and indirect evidence including the overt actions
of the parties. Floyd v. Commonwealth, 219 Va. 575, 580-81, 249
S.E.2d 171, 174 (1978).
The record in this case shows that Callahan intended to
exact revenge on Outlaw for statements made during their
argument and contacted Jones and Parker for assistance in that
endeavor. Neither Jones nor Parker was a party to the argument
between Callahan and Outlaw but both agreed to go with Callahan
to Outlaw’s apartment. Jones told the police officer he went to
Outlaw’s apartment at Callahan’s direction. Jones carried a
firearm to the apartment and Parker had an asp. Callahan, on
entering the apartment, told an occupant that if something
happened that evening, he was “not to worry about it” because
“it didn’t have anything to do with [him].” Once at the
apartment Jones acted at Callahan’s direction by waiting in the
hallway outside the apartment until Callahan brought him inside
and then going to Outlaw’s bedroom door at Callahan’s direction.
This evidence supports a conclusion that Parker and Jones
agreed to accompany Callahan to Outlaw’s apartment to commit a
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felony. There clearly was an agreement to go to Outlaw’s
apartment for purposes stemming from Callahan’s argument with
Outlaw. A pre-designed plan was shown when Parker and Jones
waited outside the apartment until called inside by Callahan,
when Callahan pointed out Outlaw’s bedroom to Parker and Jones,
and when Callahan retreated to the bathroom, leaving Jones and
Parker to confront Outlaw. Callahan’s warning that “if
anything” was going to happen further indicates that the group’s
visit was to exact more than an apology. Accordingly, we reject
Jones’ claim that the evidence was insufficient to support his
conviction for conspiracy to commit a felony.
3. Body Armor
In his last assignment of error, Jones claims that his
conviction for wearing body armor during the commission of a
crime should be reversed because the evidence was insufficient
to prove that he committed a “crime of violence” while wearing
the bulletproof vest or that the vest was “body armor designed
to diminish the effect of the impact of a bullet or projectile”
as required by Code § 18.2-287.2.
We reject both claims. First, a “crime of violence” for
purposes of Code § 18.2-287.2 includes burglary. See Code
§ 18.2-288(2). There is no dispute that Jones was wearing a
bulletproof vest when he committed statutory burglary.
Furthermore, as the Court of Appeals held, Jones did not object
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to the testimony of the police officers at trial that
characterized the vest worn by Jones as a “bullet proof vest”
and “body armor.” The finder of fact was entitled to rely on
this uncontested and uncontradicted testimony in determining
whether Jones violated Code § 18.2-287.2.
For the reasons stated above, we will affirm the judgment
of the Court of Appeals.
Affirmed.
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