                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judge Coleman and Senior Judge Cole
Argued at Richmond, Virginia


DWAYNE EDWARD GUILL
                                        MEMORANDUM OPINION * BY
v.           Record No. 0592-96-2     CHIEF JUDGE NORMAN K. MOON
                                            APRIL 22, 1997
COMMONWEALTH OF VIRGINIA


              FROM THE CIRCUIT COURT OF CHARLOTTE COUNTY
                       William L. Wellons, Judge
             Andrea C. Long (Edward A. Mann, on brief),
             for appellant.

             H. Elizabeth Shaffer, Assistant Attorney
             General (James S. Gilmore, III, Attorney
             General, on brief), for appellee.



     Dwayne Edward Guill appeals his conviction for breaking and

entering with the intent to commit rape in violation of Code

§ 18.2-90.    Guill argues that the trial court erred in (1) not

granting his motion to exclude evidence regarding a 1985

conviction for breaking and entering a dwelling house in the

nighttime with the intent to commit rape, and (2) in finding the

evidence was sufficient to sustain a conviction for breaking and

entering with the intent to commit rape.    Holding that the 1985

conviction was admissible to prove Guill's intent in this case

and that the evidence excluded any reasonable hypothesis of

innocence, we affirm.

     On May 22, 1995, Danny Crews and his wife were asleep in

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
their home.    Their two daughters, ages five and seven, were

asleep in a nearby bedroom.    At approximately 2:00 a.m., Crews

was awakened by the sound of his daughters talking.     Mr. Crews

went to investigate and discovered Guill backing out of his

daughters' room.    Crews asked Guill "what in the hell are you

doing in my house?"    Guill reached for his back pocket and said

"I'll cut your f---ing head off."    The men faced off for a few

seconds and then Guill turned and fled out the back door of the

house, breaking both the chain lock and the storm door lock as he

left.       Crews discovered that although there were open windows

in the living room and master bedroom, Guill had entered the

house by taking a twelve-foot stepladder from the basement and

climbing through a bathroom window.      Just outside the bathroom

door was a desk on which Mrs. Crews' open purse sat, containing

her keys and $200 in cash.    The area was illuminated so that the

purse and cash would have been readily visible.     Crews also

discovered signs that someone had attempted to steal gasoline

from his two trucks.    The gas tank cap was missing from one of

the trucks, and the gas line was pulled loose from the gas tank

of the other truck.    A plastic water bucket had been removed from

Crews' well house and contained approximately a quarter inch of

gasoline.    Crews' fifty foot water hose had also been moved to

where the two trucks were parked.    The keys to one truck,

normally kept inside the truck, were also missing.
        Crews also discovered Guill's motorcycle helmet left near a

security light attached to Crews' home.     The security light,

                                 - 2 -
located near where the trucks were parked, illuminated a portion

of the exterior and a portion of the girls' bedroom.    The windows

of the girls' bedroom were covered by curtains which were thin

enough that the interior of the room was visible through the

curtains.

     Guill was apprehended three weeks later and initially denied

any involvement with the break-in.     Eventually, Guill told police

that he was at the Crews' home because his motorcycle had run out

of gas.   Guill explained that he entered the Crews' home because

he was looking for keys to the trucks' gas tanks.    Guill admitted

using a ladder he took from the basement to enter the house

through a bathroom window.   Guill testified that once he was

inside, he started looking for keys, but heard the girls "wake

up," so he went in to tell them to be quiet.    Guill explained

that one of the girls started crying, so "I got up and went out

of the room and as I did I met the man [Crews]."
     During Guill's trial for breaking and entering with intent

to commit murder, rape or robbery, the Commonwealth introduced

evidence, over Guill's objection, that he had committed a similar

act of breaking and entering with intent to commit rape in 1985.

The Commonwealth argued the evidence was relevant because the

prior crime and the crime charged were significantly similar and

served to establish Guill's modus operandi.

                      Other Bad Acts Evidence
     Jane Card testified that in 1985, when she was sixteen years

old, she and her cousin were asleep in an upstairs bedroom when

                               - 3 -
she was attacked by Guill.    Card explained that Guill had broken

into her home, entered her and her cousin's room, got into their

bed with his shirt off and began kissing and fondling her and

then attempted to rape her.   Card and her cousin screamed and

fought, and Guill threatened to kill them if they did not keep

quiet.

     Here, the crime of which Guill was convicted required that

the Commonwealth prove beyond a reasonable doubt that Guill

entered the Crews' home with the intent to commit rape.      Guill

disavowed such intent and testified that he only entered the

Crews' home with the intent to find keys to the gas tanks of the

Crews' trucks.   Because Guill's intent was in question, "[e]very

fact, however remote or insignificant, that tends to establish

the probability or improbability of a fact in issue, is relevant,

and if otherwise admissible, should be admitted.     [However,]

[e]vidence of other independent acts of an accused is

inadmissible if relevant only to show a probability that the

accused committed the crime for which he is on trial because he

is a person of bad or criminal character."      Sutphin v.

Commonwealth, 1 Va. App. 241, 245, 337 S.E.2d 897, 899 (1985).

Such evidence is admissible, however, when it is "relevant to an

issue or element in the present case."    Id.   "[I]f such evidence

tends to prove any of the relevant facts of the offense charged

and is otherwise admissible, it will not be excluded merely

because it also shows him to be guilty of another crime."

Williams v. Commonwealth, 203 Va. 837, 841, 127 S.E.2d 423, 426

                                - 4 -
(1962).

     Accordingly, we have held that evidence of prior bad acts

may be properly admitted
          (1) to prove motive to commit the crime
          charged; (2) to establish guilty knowledge or
          to negate good faith; (3) to negate the
          possibility of mistake or accident; (4) to
          show the conduct and feeling of the accused
          toward his victim, or to establish their
          prior relations; (5) to prove opportunity;
          (6) to prove identity of the accused as the
          one who committed the crime where the prior
          criminal acts are so distinctive as to
          indicate a modus operandi; or (7) to
          demonstrate a common scheme or plan where the
          other crime or crimes constitute a part of a
          general scheme of which the crime charged is
          a part.

Lockhart v. Commonwealth, 18 Va. App. 254, 259, 443 S.E.2d 428,

429 (1994).   "With respect to these exceptions, the test is

whether `the legitimate probative value outweighs the incidental

prejudice to the accused.'"   Hawks v. Commonwealth, 228 Va. 244,

247, 321 S.E.2d 650, 652 (1984) (quoting Lewis v. Commonwealth,

225 Va. 497, 502, 303 S.E.2d 890, 897 (1985)).

     Here, the actions for which Guill was previously convicted

are significantly similar to the facts in this case.   As in his

prior criminal activity, Guill also broke into a home in the

nighttime and entered the room of two young girls.   Although the

record does not contain evidence of Guill having disrobed or

entered the girls' bed, Guill's prior actions are nevertheless

sufficiently similar to be probative of Guill's intent.

Accordingly, evidence of Guill's prior bad acts was admissible

for the narrow purpose of proving, elucidating, or explaining
                               - 5 -
Guill's intent.   Jennings v. Commonwealth, 20 Va. App. 9, 18, 454

S.E.2d 752, 756, aff'd en banc, 21 Va. App. 388, 464 S.E.2d 179

(1995).

     In Jennings, the defendant was charged with abducting a

minor with intent to defile him.   The defendant argued that he

had gained permission from the child's parent to discipline the

child and that he had tied the boy to a cot, beat him, and

sodomized him, with the intent of punishing him, not with the

intent to defile him.   We held that although there was

undoubtedly a prejudicial effect upon the defendant by

introducing evidence that he admitted to four previous acts of

anal sodomy upon children, we could not say that the trial court

had abused its discretion in determining that the prejudicial

effect was outweighed by the probative value of the prior bad

acts regarding the defendant's intent.    Id.

     Like the circumstances in Jennings, the evidence of Guill's

prior breaking and entering with intent to rape conviction is

both prejudicial and probative.    And, although highly

prejudicial, here again, we cannot say that the trial court

abused its discretion in determining that the legitimate

probative value of the evidence of Guill's prior conviction as it

pertained to his intent, outweighed the incidental prejudice of

that evidence.

                    Sufficiency of the Evidence

     Guill asserts that the Commonwealth failed to prove that he

intended to commit rape when he broke and entered the Crews'
                               - 6 -
home.

        In order to convict Guill, the Commonwealth bore the burden

of proving that at the time of the breaking and entering, Guill

had the specific intent to commit rape.       Dixon v. Commonwealth,

197 Va. 380, 89 S.E.2d 344 (1955).       It is the duty of the trier

of fact to weigh the evidence presented by the Commonwealth and

ultimately, to determine whether Guill acted with the requisite

criminal intent.     See Griggs v. Commonwealth, 220 Va. 46, 51, 255

S.E.2d 475, 478 (1979).    In making such a determination the court

may, and often must, rely on circumstantial evidence.          Jennings

v. Commonwealth, 20 Va. App. 9, 17, 454 S.E.2d 752, 756, aff'd en

banc, 21 Va. App. 388, 464 S.E.2d 179 (1995).

        On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.       Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

Here, Guill's explanation for his breaking and entering conflicts

with the facts.    The record revealed that the two trucks Guill

attempted to siphon gas from were parked near a security light

which also shone into the girls' bedroom and from which they

could be seen.    Despite there being open windows in the master

bedroom and living room, Guill took a stepladder and broke and

entered through a bathroom window.       There was $200 in cash and a

set of keys in an open purse which was in plain sight on a desk

immediately adjacent to the doorway of the bathroom through which

Guill entered the Crews' home.    Guill took neither the money nor
                                 - 7 -
keys and did not disturb the purse or any of its possessions,

despite his assertion that he was specifically in search of keys.

        Guill's entrance into the girls' bedroom also belied his

statement that he was just searching for keys.     Guill allegedly

entered the girls' room to instruct them to be quiet.     However,

such action, i.e., revealing his presence to children in the

home, is inconsistent with a desire to simply find keys and

supports a reasonable inference that Guill's intent was something

other than retrieving keys.     Further, despite his assertion that

he merely entered the room to quiet the girls, Guill told one of

the investigating officers that after one of the girls started to

cry, "I got up and went out of the room and as I did I met the
man."    (Emphasis added).   Guill's statement evidences the fact

that he did something more than simply enter the room and

instruct the girls to be quiet.     Finally, the Commonwealth

admitted evidence of Guill's former breaking and entering with

intent to commit the rape of two children which was properly

weighed by the court in determining Guill's intent in entering

the girls' bedroom in this case.

        The evidence was sufficient to support the trial court's

finding that Guill broke and entered the Crews' home with the

intent to commit rape.    Guill's explanation was inconsistent with

the evidence presented.      The trial court was under no obligation

to believe Guill nor to give weight to his testimony.     It is for

the trier of fact to ascertain a witness' credibility and it is

within the fact finder's discretion to accept or reject any of
                                  - 8 -
the testimony offered.   Bridgeman v. Commonwealth, 3 Va. App.

523, 528, 351 S.E.2d 598, 601 (1986).   We affirm.

                                                     Affirmed.




                               - 9 -
