                        COURT OF APPEALS OF VIRGINIA


Present: Judges Felton, Kelsey and Senior Judge Willis
Argued at Richmond, Virginia


CHICKAN LAMONT CARTER
                                            MEMORANDUM OPINION * BY
v.   Record No. 1051-02-2                 JUDGE WALTER S. FELTON, JR.
                                                 JULY 8, 2003
COMMONWEALTH OF VIRGINIA


      FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                  James E. Kulp, Judge Designate

          William T. Linka (Boatwright & Linka, on
          brief), for appellant.

          Virginia B. Theisen, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     Chickan Carter was convicted in a bench trial of felony

burglary, in violation of Code § 18.2-89, and misdemeanor

peeping, in violation of Code § 18.2-130.      On appeal, Carter

contends that the trial court erred when it determined he

possessed the intent required for a conviction of breaking and

entering a dwelling with the intent to commit larceny.      We

affirm the judgment of the trial court.

                            I.   BACKGROUND

     On August 18, 2000, Ida Lewis, who lives alone, went to bed

at approximately 11:00 p.m.      Prior to going to bed, she closed


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
and latched the windows in her house and closed and locked the

doors.      In her bedroom, she closed and latched the screen then

she left the window approximately halfway open.        Her window

shade was left open at the same level as the window.

        At approximately 2:45 a.m., on August 19, Ms. Lewis was

awakened by a noise at her window.         When she went to the window,

she noticed it was all the way up and the shade was raised

higher than when she had gone to bed.        Initially, she believed

the screen had been cut, but realized that it had been raised as

far as possible.      In the open window, Ms. Lewis saw Carter's

face and chest.      She picked up the telephone and told him she

was calling 911.      Carter stepped down and backed away from the

window, but did not immediately run. 1       She called 911 and began

speaking with the 911 operator.      Carter then ran.

        At approximately 3:00 a.m. on August 19, two students,

Jennifer Beales and Jessica Gillespie, saw a man dressed in all

black run from behind Ms. Lewis' house, between their houses,

and to a house across the street.      Beales and Gillespie lived

next door to Ms. Lewis.      According to the two women, the man ran

across the street, diagonally, to a house two or three houses

away.       The police arrived at Ms. Lewis' house shortly

thereafter.      Gillespie and Beales pointed out to Officer

Bomgardner the house where the man had run.


        1
       Carter stood on a lawn chair in order to get up to the
window.

                                   - 2 -
     Officer Bomgardner went to the house and found Carter

sitting on the back deck.    The officer noticed that Carter's arm

was bandaged and bleeding.   In addition, he noticed Carter

appeared intoxicated.   Detective Sergeant Campbell spoke to

Carter as well.   Carter told Detective Sergeant Campbell that he

was intoxicated and confused.   He stated he locked himself out

and may have gone to the wrong house. 2   Detective Sergeant

Campbell noted the smell of alcohol from Carter, but Carter did

not appear to be intoxicated and did not slur his speech.        He

did not appear to be "staggering drunk."

     The police brought Carter to Ms. Lewis' house, and she

identified him as the man she saw in her window.      Evidence

technicians took photographs of the crime scene and collected

evidence.   Among the evidence collected were blood samples from

a stain located on the inside windowsill in Ms. Lewis' room and

stains from the chair located outside her window. 3    The blood

samples were analyzed, and DNA testing determined the blood to

be that of Carter.




     2
       At trial, a forensic toxicologist, Dr. Joseph Saady,
testified that Carter's blood alcohol level at the time of the
offense would have been such as to affect complicated tasks that
require thought. However, he stated that it would not affect
one's ability to perform an uncomplicated and repetitive task,
such as returning home.
     3
       The evidence technicians found no fingerprints at the
crime scene and found no blood on the window shade.


                                - 3 -
     On January 16, 2002, Carter was convicted in a bench trial

of felony burglary, in violation of Code § 18.2-89, and

misdemeanor peeping, in violation of Code § 18.2-130.

                            II.    ANALYSIS

     Carter contends that the evidence was insufficient to prove

beyond a reasonable doubt that the breaking and entering of

Lewis' house was with the intent to commit larceny.   We

disagree.

            When the sufficiency of the evidence is
            challenged on appeal, it is well established
            that we must view the evidence in the light
            most favorable to the Commonwealth, granting
            to it all reasonable inferences fairly
            deducible therefrom. The conviction will be
            disturbed only if plainly wrong or without
            evidence to support it.

Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196

(1992).

     Code § 18.2-89 states, "If any person break and enter the

dwelling house of another in the nighttime with intent to commit

a felony or any larceny therein, he shall be guilty of

burglary . . . ."

            It is elementary that where, as here, the
            statute makes an offense consist of an act
            combined with a particular intent, proof of
            such intent is as necessary as proof of the
            act itself and must be established as a
            matter of fact. Patterson v. Commonwealth,
            215 Va. 698, 699, 213 S.E.2d 752, 753
            (1975); Dixon v. Commonwealth, 197 Va. 380,
            382, 89 S.E.2d 344, 345 (1955).

            Intent is the purpose formed in a person's
            mind which may, and often must, be inferred

                                  - 4 -
          from the facts and circumstances in a
          particular case. The state of mind of an
          alleged offender may be shown by his acts
          and conduct. Hargrave v. Commonwealth, 214
          Va. 436, 437, 201 S.E.2d 597, 598 (1974);
          Johnson v. Commonwealth, 209 Va. 291, 295,
          163 S.E.2d 570, 574 (1968).

Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314

(1979).

     Our jurisprudence provides that in the absence of evidence

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

person's unauthorized presence in a business or home was with

the intent to commit larceny.    See id. at 836-37, 252 S.E.2d at

314; Thompkins v. Commonwealth, 212 Va. 460, 461, 184 S.E.2d

767, 768 (1971); Hucks v. Commonwealth, 33 Va. App. 168, 175,

531 S.E.2d 658, 661 (2000); Sandoval v. Commonwealth, 20

Va. App. 133, 137-38, 455 S.E.2d 730, 732 (1995).

     In the case before us, no contrary intent was provided to

explain Carter's unauthorized presence in Ms. Lewis' house. 4

Carter explained to the police at the time of his arrest and to

the trial court that he was at Ms. Lewis' house because he

locked himself out of his house and believed that he was trying


     4
       Carter opened the screen, window, and put up the window
shade. In addition, his blood was found on the inside
windowsill. The trial court found that this evidence satisfied
the elements and proved beyond a reasonable doubt that Carter
broke and entered Ms. Lewis' house. See Franklin v.
Commonwealth, 28 Va. App. 719, 721-22, 508 S.E.2d 362, 363-64
(1998); Phoung v. Commonwealth, 15 Va. App. 457, 460-61, 424
S.E.2d 712, 713-14 (1992). The issue of whether there was a
breaking and entering is not before the Court, and we do not
address it on appeal.

                                - 5 -
to enter his house.   He attributed this mistake to his

intoxication and confusion.    The trial court rejected Carter's

explanation, stating that the moment Carter was confronted by

Ms. Lewis, he knew exactly where his house was located and ran

directly there.   He did not deviate in going to his house, and

he showed no confusion in getting there.   With Carter's

explanation rejected, there was an absence of evidence showing a

contrary intent, thus permitting the trial court to infer that

Carter's unauthorized presence in Ms. Lewis' house was with the

intent to commit larceny.

     We hold that the evidence was sufficient to prove breaking

and entering with the intent to commit larceny.   The judgment of

the trial court is affirmed.

                                                           Affirmed.




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