                     COURT OF APPEALS OF VIRGINIA


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


VINCENT ARDIE OPIE
                                            MEMORANDUM OPINION * BY
v.   Record No. 2173-99-1                  JUDGE SAM W. COLEMAN III
                                               AUGUST 29, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                        Randolph T. West, Judge

            Kenneth R. Yoffy (Cope, Olson & Yoffy,
            P.L.C., on brief), for appellant.

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


     Vincent Ardie Opie was convicted in a bench trial of

robbery, abduction, and burglary while armed with a deadly

weapon.   On appeal, Opie argues that the evidence is

insufficient to support his conviction for burglary while armed

with a deadly weapon.    We disagree and affirm the conviction.

                              BACKGROUND

     "On review of a challenge to the sufficiency of the

evidence, we view the evidence in the light most favorable to

the Commonwealth, the prevailing party, and grant to it all

reasonable inferences fairly deducible therefrom."      Robertson v.

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000)

(citing Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d

263, 265 (1998)).     So viewed, the evidence proved that

ninety-three-year-old Arthur Lomax was at his home in Newport

News.    Lomax testified that, at approximately 11:00 a.m., shortly

after his daughter left for work, Opie walked into his yard and

onto his front porch where Lomax was sitting.      Opie, while

brandishing a box-cutter, grabbed Lomax by the arm and "carried"

him inside the house.    Opie asked Lomax for money and Lomax

responded that he did not have any.       Lomax tried to leave, but

Opie forced Lomax into the bedroom and tried to suffocate him with

a pillow.    Opie then tied Lomax's hands behind his back and tied

his feet with a lamp cord.    Opie, armed with the box-cutter, again

demanded Lomax's money and Lomax told him that it was in a drawer.

Opie took $200 and Lomax's watch.       Before he left, Opie again

tried to suffocate Lomax with a pillow.      Lomax was unconscious

when Opie finally left.

        Although Lomax identified Opie as the intruder at trial, he

was unable to identify him at the preliminary hearing.      Lomax,

however, testified that the reason he was unable to identify Opie

at the preliminary hearing was because defense counsel was

blocking his view.

        Opie testified that on the day of the incident, he was

jogging in the victim's neighborhood and became tired.      He


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admitted that he went to Lomax's house to use the phone to call

his brother.   Opie testified that he left Lomax's house and began

walking back to his home.   Opie encountered his nephew in a

parking lot just before noon and the two left the area.   Opie

admitted that he told Lomax's daughter, Inez Walker, that he

needed to use the phone to secure a ride because his car had

broken down and not because he was tired from jogging.

                              ANALYSIS

     Opie argues that the evidence is insufficient to support his

burglary conviction because the Commonwealth failed to prove that

there was a breaking, either actual or constructive, and failed to

prove that he was armed with a deadly weapon at the time he gained

entry into the residence.

     "The judgment of a trial court sitting without a jury is

entitled to the same weight as a jury verdict, and will not be

disturbed on appeal unless plainly wrong or without evidence to

support it."   Beck v. Commonwealth, 2 Va. App. 170, 172, 342

S.E.2d 642, 643 (1986) (citations omitted).

     "Actual breaking involves the application of some force,

slight though it may be, whereby the entrance is effected.

Merely pushing open a door, turning the key, lifting the latch,

or resort to other slight physical force is sufficient to

constitute this element of the crime."   Davis v. Commonwealth,

132 Va. 521, 523, 110 S.E. 356, 357 (1922).   "Where entry is


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gained by threats, fraud or conspiracy, a constructive breaking

is deemed to have occurred."     Jones v. Commonwealth, 3 Va. App.

295, 299, 349 S.E.2d 414, 416-17 (1986) (citations omitted).

"'[A] breaking, either actual or constructive, to support a

conviction of burglary, must have resulted in an entrance

contrary to the will of the occupier of the house.'"         Johnson v.

Commonwealth, 221 Va. 872, 876, 275 S.E.2d 592, 595 (1981)

(quoting Davis, 132 Va. at 523, 110 S.E. at 357).

     Here, there was no evidence of an actual breaking.        There

was no evidence that any force, however slight, was used by Opie

to gain entry into the dwelling.       However, the evidence proved a

constructive breaking.   Lomax testified that Opie walked onto

his porch, grabbed him by the arm, and while holding a

box-cutter, forced Lomax inside the house.      Lomax testified that

he was "scared" and that "[he] couldn't do nothing about it."

Accordingly, the evidence proves beyond a reasonable doubt that

Opie gained entry into the residence by threat of violence to

Lomax.

     To elevate statutory burglary to a Class 2 felony, the

Commonwealth had to prove that Opie was armed with a deadly

weapon at the time of the entry.       See Code § 18.2-90.   The

Supreme Court has stated that:

          A deadly weapon is one which is likely to
          produce death or great bodily injury from
          the manner in which it is used, and whether
          a weapon is to be regarded as deadly often

                               - 4 -
           depends more on the manner in which it has
           been used than on its intrinsic character.

Pritchett v. Commonwealth, 219 Va. 927, 929, 252 S.E.2d 352, 353

(1979) (internal quotations and citations omitted).     "[U]nless a

weapon is per se a deadly one, the fact finder should determine

whether it, and the manner of its use, place it in that

category, and the burden of showing these things is upon the

Commonwealth."   Id. (citations omitted).    We have stated that a

box-cutter is "plainly 'a keen-edged cutting instrument.'"

O'Banion v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___,

___ (2000) (en banc).   We further stated:

           [A box-cutter] is not materially different
           from a locked-blade knife, in that it has a
           retractable blade that can be locked into
           place. As such, by incorporating a razor
           blade, the box-cutter combines the
           fine-edged sharpness of a straight razor
           with the retracting capacity of a
           locked-blade knife.

Id.   It is common knowledge that a box-cutter is an instrument

with a sharp blade or razor that could be used as a weapon to

kill or inflict serious injury on a person.

      Here, Lomax testified that Opie held the box-cutter in his

hand and displayed the box-cutter while grabbing Lomax and forcing

him inside the residence.   The evidence supported the finding by

the trial judge as fact finder that the "keen-edged cutting

instrument" used to threaten Lomax and to gain entry into the home

was a deadly weapon.



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     Accordingly, we hold that the evidence is sufficient to

support the conviction.

                                                         Affirmed.




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