COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphreys and Senior Judge Annunziata
Argued at Richmond, Virginia
STEVEN ARNELL HAIRSTON
MEMORANDUM OPINION * BY
v. Record No. 3049-07-3 JUDGE ROSEMARIE ANNUNZIATA
DECEMBER 23, 2008
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
S. Jane Chittom, Appellate Defender (Office of the Appellate
Defender, on briefs), for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Steven Arnell Hairston appeals his conviction for statutory burglary in violation of Code
§ 18.2-91. Appellant concedes that “while there is evidence to support a conclusion that [he]
entered Matthew Mann[s’] house [on July 6, 2007], there is no evidence to support the conclusion
that he did so with the intent to commit larceny,” as required for a conviction under Code
§ 18.2-91. 1
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Based upon our review of appellant’s motion to strike and closing argument in which he
raised the issue of sufficiency of the evidence to prove an intent to commit larceny and the
Commonwealth’s argument in response as contained in the trial transcript, we reject the
Commonwealth’s contention that appellant did not preserve his argument for appellate review.
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
So viewed, the evidence proved that on July 6, 2007, Josh Randolph Baker saw appellant
walk up his driveway and then walk “right to [Manns’] house.” Manns had secured and boarded up
his front door after some earlier break-ins had occurred.2 Baker is Manns’ uncle and lives next
door. Baker knew Manns was not home at that time and, as a result, he went to Manns’ home to
investigate. He found the front door open and saw appellant inside the house coming toward the
front door with “something white” in his hand. When Baker yelled to appellant to come out,
appellant backed up and fled. Because appellant “backed up too quick,” Baker could not identify
the white object he saw in appellant’s hand. Nor did Baker see how appellant exited the house or
where he went after he left. However, the back door was open.
The sheriff’s office called Manns on July 6, 2007, and asked him to come home, “because
[his] door had been kicked open again . . . .” When Manns arrived, the police were at his house, and
he found it “wide open” and “the door jamb was busted out.” Manns testified that “there was
nothing taken from the house that time that I could find.” He denied giving appellant permission to
enter his home on July 6, 2007.
Appellant testified he walked by Manns’ house on July 6, but denied he entered it or that he
kicked open the door. Instead, he stated that he continued walking past the house of a woman
named Cynthia Campbell and then got a ride with an individual named Jonathon Jones to the house
of Anthony Prunty. Appellant acknowledged seeing Baker in his yard talking on his cell phone.
Appellant had prior felony convictions, which he numbered “about 20.”
2
Manns testified that about a week before July 6, 2007, the door to his home had been
kicked in. After that incident, he had boarded up the door, with a board held in place by locks,
ten-penny nails, and three-inch screws. He used the back door while he waited for an insurance
payment to fix the front door. Manns confirmed that the boarded-up front door was securely closed
on July 6, 2007.
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When considering on appeal the sufficiency of the evidence
presented below, we “presume the judgment of the trial court to be
correct” and reverse only if the trial court’s decision is “plainly
wrong or without evidence to support it.” Thus, we do not
“substitute our judgment for that of the trier of fact.” “Instead, the
relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.” “This familiar standard gives full play to the responsibility
of the trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts.”
Kelly v. Commonwealth, 41 Va. App. 250, 257-58, 584 S.E.2d 444, 447 (2003) (en banc)
(citations omitted).
The relevant provisions of Code § 18.2-91 state that a
person is guilty of statutory burglary if that person breaks into and
enters any building permanently affixed to realty with the intent to
commit larceny. When a statute, such as Code § 18.2-91, “makes
an offense consist of an act combined with a particular intent, such
intent is as necessary to be proved as the act itself, and it is
necessary for the intent to be established as a matter of fact before
a conviction can be had.” “Intent in fact is the purpose formed in a
person’s mind and may be, and frequently is, shown by
circumstances. It is a state of mind which may be shown by a
person’s conduct or by his statements.”
Vincent v. Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___, ___ (Oct. 31, 2008) (emphasis in
original) (citations omitted).
[A] trier of fact may not reasonably infer the specific intent to
commit larceny merely from the absence of evidence showing a
different intent. Instead, as we stated in both Ridley and
Tompkins, the specific intent with which an unlawful entry is
made “may be inferred from the surrounding facts and
circumstances.”
Id. at ___, ___ S.E.2d at ___ (quoting Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d
313, 314 (1979); Tompkins v. Commonwealth, 212 Va. 460, 461, 184 S.E.2d 767, 768 (1971)).
Contrary to appellant’s contention, nothing in this record shows the trial judge, as fact
finder, impermissibly found that appellant had the specific intent to commit larceny based upon
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an inference derived solely from evidence of appellant’s unauthorized entry into Manns’ home.
In this case, the evidence and reasonable inferences flowing from that evidence, viewed in the
light most favorable to the Commonwealth, proved that appellant forcibly broke and entered
Manns’ home by breaking through the boarded-up front door and the door jamb and that he
walked inside the house, where Baker saw him with “something white” in his hand. When seen
by Baker, appellant fled and later denied entering the home, giving rise to an inference of guilt.
See Hope v. Commonwealth, 10 Va. App. 381, 386, 392 S.E.2d 830, 833 (1990) (en banc)
(“[E]vidence of flight may be considered as evidence of guilt along with other pertinent facts and
circumstances.”). Even though Manns could not specifically identify anything missing from his
home and Baker could not identify the white object in appellant’s hand, a rational fact finder
could reasonably infer that appellant held an item in his hand that he intended to steal from
Manns’ home. These surrounding facts and circumstances allowed a rational fact finder to
conclude beyond a reasonable doubt that appellant broke and entered Manns’ home with the
intent to commit larceny.
For these reasons, we conclude that the evidence was sufficient to prove beyond a
reasonable doubt that appellant possessed the specific intent to commit larceny when he
unlawfully broke into and entered Manns’ home. Accordingly, we affirm the trial court’s
decision.
Affirmed.
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