                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia


MARK FILBY, S/K/A
 MARK DOUGLAS FILBY
                                        MEMORANDUM OPINION * BY
v.   Record No. 2208-99-1             JUDGE ROBERT J. HUMPHREYS
                                             JULY 25, 2000
COMMONWEALTH OF VIRGINIA


       FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Verbena M. Askew, Judge

          Paul H. Wilson (Wilson & Wilson, P.C., on
          brief), for appellant.

          Robert H. Anderson, III, Assistant Attorney
          General (Mark L. Earley, Attorney General,
          on brief), for appellee.


     Mark Filby appeals his convictions in a bench trial for

possession of burglary tools and wearing a mask in public.    He

complains (1) that the trial court erred in considering

testimony which it had earlier ruled inadmissible; (2) that the

evidence was insufficient as a matter of law to support the

conviction for possession of burglary tools; and, (3) that the

trial court erred in sentencing Filby to the maximum sentence

contemplated by law for wearing a mask in public while imposing

a lesser sentence for possession of burglary tools.   For the

reasons that follow, we disagree and affirm his convictions.

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                          I.   Background

     Between 10:30 p.m. and 11:00 p.m. on February 4, 1999,

Filby's estranged wife phoned police and stated that she had

just seen a man outside her kitchen window staring at her,

wearing a full-faced ski mask.    She told the dispatcher that she

thought the man might be her husband who was banned from her

property pursuant to a protective order.    An officer responded

to her home and after talking with Mrs. Filby, looked around

outside the window.   The officer found an air conditioning unit

that appeared to have been moved to a location under the window.

He also found footprints on the air conditioning unit.   The

officer observed no evidence of tampering with the window.

Shortly thereafter, the officer noticed a maroon vehicle in the

parking lot, which he considered to have "taken off" much faster

than it "really needed to."    Mrs. Filby told the officer that

her husband drove a maroon Ford Taurus, so the officer radioed a

description of the car and asked that the license plate be

checked.

     Another officer heard the call and observed the car in a

convenience store parking lot across the street from the

apartment complex where Mrs. Filby lived.   Filby was out of his

vehicle when the officer approached him to ask his name.   After

the officer informed Filby of the incident involving his wife,

Filby initially denied any knowledge of the matter.   At the

officer's request, Filby consented to a search of his vehicle.

                                 - 2 -
In the front seat of Filby's vehicle, police found a pair of

binoculars and a lock-blade knife.       In the trunk they found a

ski mask, a long flathead screwdriver, duct tape, a BB gun,

gloves, a glass cutter and a dark sweatshirt.      Filby then stated

that he had not gone to his wife's house but had been in the

area on other business.   After further questioning, Filby

admitted that he had gone to his wife's house to see her and

that he had been wearing a mask.    He stated that he had gone to

the kitchen window and observed her for thirty-five minutes.         He

admitted that he knew of the protective order prohibiting him

from the premises.

     At trial, Filby testified that he only had a key to the

ignition and doors of the car.    He explained that he had the

door and ignition locks "re-keyed" but not the trunk lock.      He

testified that he did not have a key to the trunk and that his

wife had both sets of keys.   The police officers testified that

they had to get a key from Mrs. Filby to search the trunk of the

vehicle.   Filby further testified that the mask he was wearing

was only a partial mask which he wore for work at a recycling

center and that although the items in the trunk were similar to

what he would carry in his trunk, the items were not his and he

didn't know how they got there.    He also testified that he had

not spoken to his wife since January, then testified that he did

talk to her the night of the incident because she opened the

window after she saw him and yelled.      Filby stated he then ran

                                 - 3 -
from the scene and threw the mask he was wearing into a nearby

dumpster.

     Mrs. Filby testified that she did not open the window and

that she had not had possession of the vehicle for a month.

     During the trial, the prosecutor called Michael Bunting, a

maintenance man and groundskeeper, who worked at the apartment

complex.    Bunting testified that he had observed Filby at his

wife's apartment in mid-January examining the doors and windows

of his wife's apartment.

     Filby objected to this testimony, and the trial court

sustained the objection in part and ruled that only the fact

that Filby was seen at the apartment in January would be

admissible.   The trial court held the evidence that Filby was

examining the doors and windows was inadmissible.   Based upon

this ruling, Filby did not cross-examine the witness.

     During Filby's closing argument, the trial court, sua

sponte, indicated that it was "changing its mind" concerning the

testimony of Bunting and as trier of fact would consider his

testimony in its entirety.   To Filby's strenuous objection that

the court could not now admit evidence it had previously ruled

inadmissible, and further that Filby could not now cross-examine

the witness, the court responded, "I'm changing my rules."

Filby was convicted as charged.

     Before sentencing, Filby filed a motion to reconsider based

upon the admission of the testimony of the maintenance man.    The

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Commonwealth conceded that the evidence should not have been

considered because Filby was unable to cross-examine the witness

in light of the subsequent ruling of the court.   The

Commonwealth suggested as a remedy that the court reopen the

case and permit further questioning of the witness.     Filby

objected that this was not an adequate remedy in view of the

passage of some eight weeks since the trial, during which the

witnesses were no longer separated.   The court granted Filby's

motion to reconsider but stated that the stricken evidence did

not affect Filby's convictions.   In finding that the evidence

was sufficient without the stricken testimony of Bunting, the

court specifically noted the presumption contained in Code

§ 18.2-94, which it found was not rebutted by the evidence. 1

     The court then sentenced Filby to ten years imprisonment

with eight years and four months suspended for his conviction of

possession of burglary tools and sentenced him to five years

imprisonment for wearing a mask in public.




     1
       Code § 18.2-94 provides in pertinent part that "[i]f any
person have in his possession any tools, implements or outfit,
with intent to commit burglary, robbery or larceny, upon
conviction thereof he shall be guilty of a Class 5 felony. The
possession of such burglarious tools, implements or outfit by
any person other than a licensed dealer, shall be prima facie
evidence of an intent to commit burglary, robbery or larceny."

                              - 5 -
                       II.   Motion to Reconsider

     Whether to reopen a case lies within the sound discretion

of the trial judge.     See Mundy v. Commonwealth, 161 Va. 1049,

171 S.E. 691 (1933).

          When all the testimony in the trial of a
          case has been concluded and the witnesses
          for the respective parties have been excused
          from their attendance upon court, whether
          the court will allow the introduction of
          other testimony is a question addressed to
          the sound discretion of the trial judge,
          ". . . and unless it affirmatively appears
          that this discretion has been abused this
          court will not disturb the trial court's
          ruling thereon."

Id. at 1064, 171 S.E. at 696 (citation omitted).      See also Minor

v. Commonwealth, 16 Va. App. 803, 805, 433 S.E.2d 39, 40 (1993).

     We do not approve of the procedure by which the trial court

chose to consider this evidence -- namely, to wait until the

closing argument of counsel to announce that it would consider

evidence it had previously ruled inadmissible.      We agree that

Filby would have been prejudiced by his inability to

cross-examine Bunting following the trial court's reversal of

its earlier ruling.    We also find the trial court's ruling that

it was "changing [its] rules" to be curious and inappropriate.

     However, on the facts of this case, we find that any error

was waived by Filby and cured by the trial court ultimately

granting Filby the relief he sought by excluding the evidence to

which he objected.



                                  - 6 -
     While the trial court created confusion and uncertainty by

repeatedly changing its ruling concerning the admissibility of

evidence at various stages of the proceeding, the trial court

granted Filby the relief he sought when it granted his motion to

reconsider.    In the absence of evidence to the contrary, we are

constrained to accept a statement from a trial court, sitting as

the trier of fact, that it did not consider evidence which it

said it would not consider.    "[I]n a bench trial, the trial

judge is presumed to disregard prejudicial or inadmissible

evidence, and this presumption will control in the absence of

clear evidence to the contrary."     Hall v. Commonwealth, 14 Va.

App. 892, 902, 421 S.E.2d 455, 462 (1992) (en banc) (citation

omitted).   We do not find that Filby has overcome that

presumption.

                  III.   Sufficiency of the Evidence

     Filby argues that the evidence was insufficient as a matter

of law to support the charge of possession of burglary tools.

     Filby suggests initially that he could not possess the

items in question because, as he had no key to the trunk of his

car, he could not have dominion and control over the items

therein.

     The court as trier of fact was not required to accept

Filby's testimony that he had no access to the trunk and that he

had disposed of his mask in a dumpster.    The trial court was

entitled to consider a number of factors affecting Filby's

                                 - 7 -
credibility.   For instance, Filby made inconsistent statements

to the police, he admitted to previous felony convictions, and

he admitted he was under a protective order to stay away from

his wife's residence.   In addition, Filby had exclusive

possession of the vehicle for at least a month before the

incident.   He also admitted that the items in the trunk were

similar to what he would keep there.    This evidence, together

with the presence of the ski mask in the trunk and the other

items, is evidence from which dominion and control can be

reasonably inferred.

            The mere possession of burglarious tools is
            not a crime under the statute. It is
            possession with intent to use them to commit
            a crime [that is criminal]. The tools or
            implements may be, and usually are, designed
            and manufactured for lawful purposes. But
            it is unusual for a person, on a lawful
            mission, to have in his possession a
            combination of tools and implements suitable
            and appropriate to accomplish the
            destruction of any ordinary hindrance of
            access to any building . . . . All the
            statute does is to create a presumption of a
            criminal intent from proof of possession of
            burglarious tools or implements. Such a
            presumption is not conclusive; it cuts off
            no defense. It interposes no obstacle to a
            contest of all of the issues of fact, and
            relieves neither the court nor the jury of
            the duty to determine all of the questions
            of fact from the weight of the whole
            evidence. "It is merely a rule of evidence
            and not the determination of a fact." When
            possession is proven, the burden of going
            forward with the evidence shifts to the
            defendant, but this does not shift the
            burden of ultimate proof . . . .



                                - 8 -
Burnette v. Commonwealth, 194 Va. 785, 790-91, 75 S.E.2d 482,

485-86 (1953).

     Filby cites Moss v. Commonwealth, 29 Va. App. 1, 509 S.E.2d

510 (1999), in support of his argument that the trial court's

reliance on the statutory presumption that possession of

burglary tools is evidence of intent is erroneous.    However,

Filby's reliance on Moss is misplaced.    In Moss, we held

           [t]his presumption . . . does not attach to
           all "tools, implements, or outfit[s]"
           embraced by the statute, but only to such
           offending articles innately burglarious in
           character, those "commonly used by burglars
           in house breaking and safe cracking,"
           particularly "suitable and appropriate to
           accomplish the destruction of any ordinary
           hindrance of access to any building . . . ."

Id. at 4, 509 S.E.2d at 511.

     The statute in question punishes the "possession [of] any

tools, implements or outfit, with intent to commit burglary

. . . ."   Code § 18.2-94.   We find no error in the trial court

concluding that, in the aggregate, Filby's possession of a ski

mask, dark clothing, duct tape, a glass cutter and a long

screwdriver constituted "tools, implements, or outfit[s]

innately burglarious in character."     Moss, 29 Va. App. at 4, 509

S.E.2d at 511.

     In addition, although the trial court noted the existence

of the statutory presumption, it did not indicate that the

presumption represented the only evidence it relied upon as

evidence of Filby's criminal intent.    In fact, the presence of

                                - 9 -
Filby standing atop an air conditioning unit peering into his

estranged wife's kitchen window in violation of a protective

order, when coupled with his possession of items such as dark

clothing, gloves, a glass cutter, duct tape, a lock-blade knife

and a long screwdriver are clearly circumstances from which a

fact finder could determine beyond a reasonable doubt that he

intended to commit a burglary of his wife's home.

                            IV.   Sentencing

     Finally, Filby complains that the trial court erred in

sentencing him to the statutory maximum of five years for the

"lesser offense" of wearing a mask and suspending a majority of

the sentence on "the greater offense" of possession of

burglarious tools.   He asserts that by sentencing him in this

fashion, the trial court insured that Filby would serve the

amount of time suggested by the sentencing guidelines even if

his conviction for the more serious crime were reversed on

appeal.

     First, and most importantly, Filby did not raise any

objection to the sentence in the trial court, and his claim is

thus procedurally barred.     See Rule 5A:18.   In any event, "when

a statute prescribes a maximum imprisonment penalty and the

sentence does not exceed that maximum, the sentence will not be

overturned as being an abuse of discretion."      Abdo v.

Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977).      The

sentencing guidelines are advisory only and do not require trial

                                  - 10 -
courts to impose specific sentences.   See Runyon v.

Commonwealth, 29 Va. App. 573, 577-78, 513 S.E.2d 872, 874

(1999).

                                                        Affirmed.




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