                                          COURT OF APPEALS OF VIRGINIA


            Present: Chief Judge Felton, Judges Elder and Petty
PUBLISHED


            Argued at Richmond, Virginia


            DIJON ALLEN SMITH
                                                                                     OPINION BY
            v.     Record No. 0197-12-2                                          JUDGE LARRY G. ELDER
                                                                                     APRIL 2, 2013
            COMMONWEALTH OF VIRGINIA


                             FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                          Margaret P. Spencer, Judge

                           Joan J. Burroughs, Assistant Public Defender, for appellant.

                           Donald E. Jeffrey, III, Senior Assistant Attorney General
                           (Kenneth T. Cuccinelli, II, Attorney General, on brief), for
                           appellee.


                   Dijon Allen Smith (appellant) was convicted in a jury trial for burglary in violation of

            Code § 18.2-90 and using a firearm in the commission of that offense in violation of Code

            § 18.2-53.1. On appeal, he contends the burglary was complete before he used or displayed the

            gun and, thus, that the evidence fails to support his conviction for using a firearm in the

            commission of burglary. We hold the evidence, viewed in the light most favorable to the

            Commonwealth, was sufficient to support the challenged conviction. 1 Thus, we affirm.

                   In considering a challenge to the sufficiency of the evidence on appeal of a criminal

            conviction, “we view the evidence and all reasonable inferences in the light most favorable to the

            Commonwealth, the prevailing party in the trial court.” Rowland v. Commonwealth, 281 Va.

            396, 399, 707 S.E.2d 331, 333 (2011). We will reverse a conviction based on a sufficiency


                   1
                    Appellant also was convicted for robbery and using a firearm in the commission of
            robbery. Nothing related to those convictions or to the burglary conviction underlying the
            challenged use-of-a-firearm conviction is at issue in this appeal.
challenge only if the trial court’s judgment is plainly wrong or without evidence to support it.

E.g., McMorris v. Commonwealth, 276 Va. 500, 504, 666 S.E.2d 348, 350 (2008).

       To constitute burglary of a building permanently affixed to realty at nighttime, the

evidence must prove the defendant entered, with or without breaking, with the intent to commit a

felony therein. Code §§ 18.2-90, -91. Code § 18.2-53.1 makes it “unlawful . . . to use or attempt

to use any . . . firearm or display such weapon in a threatening manner while committing or

attempting to commit . . . burglary.” “A person ‘uses’ a firearm if he or she employs it.”

Rowland, 281 Va. at 401, 707 S.E.2d at 334 (citing Black’s Law Dictionary 1681 (9th ed.

2009)). “A person ‘displays’ a firearm if he or she manifests it ‘to any of a victim’s senses.’” Id.

at 401-02, 707 S.E.2d at 334 (quoting Cromite v. Commonwealth, 3 Va. App. 64, 66, 348 S.E.2d

38, 39 (1986)). 2

       Relying on Rowland, 281 Va. 396, 707 S.E.2d 331, appellant contends the trial court

erred in finding the evidence sufficient to prove he used a firearm while committing burglary

because the burglary was complete before he used or displayed the gun. We conclude Rowland

supports rather than defeats the challenged conviction.

       Rowland involved the nighttime entry of a restaurant, apparently after business hours but

while two employees remained inside. Id. at 398, 707 S.E.2d at 332. The back door was the

only door unlocked at the time, and one of the two employees was working near that door, in the

kitchen area. Id. While in the kitchen area, that employee “sensed a person behind him and




       2
         The statute clearly contemplates that this offense may be proved in two ways, based on
either “us[ing] or attempt[ing] to use any . . . firearm” or “display[ing] such weapon in a
threatening manner.” Code § 18.2-53.1. Here, the jury instructions covered only the first of
these ways, “using a firearm,” and the jury returned a verdict of guilty of “using a firearm.”
Thus, we need not address what is required to prove a defendant “display[ed] [a] weapon in a
threatening manner.”

                                               -2-
turned around to see [Rowland] . . . pointing a gun at him.” Id. It was undisputed that neither

employee saw Rowland enter the restaurant. Id. The Supreme Court held as follows:

               [T]he evidence shows that the elements of statutory burglary were
               complete before Rowland used or displayed a firearm. There is no
               evidence that Rowland used or displayed the firearm when gaining
               entry to the restaurant. Neither witness observed Rowland’s entry.
               The first time either of the witnesses noticed Rowland was when
               [the employee in the kitchen] turned around to find Rowland
               pointing a gun at him. By that time, Rowland had already entered
               the restaurant with the intent to commit robbery therein. The
               burglary had been completed. The evidence is insufficient to
               support a conviction of use or display of a firearm during the
               commission of the burglary.

Id. at 402, 707 S.E.2d at 334; see also Rushing v. Commonwealth, 284 Va. 270, 274, 279, 726

S.E.2d 333, 335, 339 (2012) (applying Rowland to reverse where the evidence showed the

burglars entered through a rear door on the lowest level of the house and did not encounter the

victim until they reached the flight of steps to the next level and saw him standing at the top).

       Here, in contrast to Rowland, victim Kimberly Bundrick was alerted to the fact that

someone was outside her front door because she heard knocking. As she walked toward the

door, she saw appellant and his companions, all of whom were masked, push the door open and

enter without an invitation. As soon as appellant entered, Bundrick noticed he was holding a

firearm “down at his side.” Given the absence of testimony from Bundrick that she observed

appellant remove the weapon from his waistband or pocket or otherwise “draw” it after entering,

her testimony that she noticed he was holding a firearm “down at his side” immediately after he

entered supports the inference that he was also holding the firearm in that fashion when he

entered seconds earlier.

       When Bundrick saw the firearm, she began screaming. Appellant immediately grabbed

her, held the gun to her head, and told her to be quiet. It is true these events occurred after

appellant had stepped across the threshold of the residence. However, the way appellant used the

                                                -3-
gun after entering supports the jury’s finding, implicit in its verdict, that he used the gun during

the entry for the same purpose, in order to be ready to subdue Bundrick as necessary. The fact

that appellant did not find it necessary to actually point the gun at Bundrick or to display it in

some other obvious fashion in order to gain entry does not prevent a finding that he “used” it in

the commission of burglary within the meaning of Code § 18.2-53.1.

       For these reasons, we hold the evidence was sufficient to support appellant’s conviction

for using a firearm in the commission of burglary in violation of Code § 18.2-53.1. Thus, we

affirm the challenged conviction.

                                                                                            Affirmed.




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