                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Benton and Overton
Argued at Salem, Virginia


ROBERT LEE BROCK

v.          Record No. 0756-94-3          MEMORANDUM OPINION*
                                       BY JUDGE JOSEPH E. BAKER
COMMONWEALTH OF VIRGINIA                   DECEMBER 19, 1995


            FROM THE CIRCUIT COURT OF THE CITY OF STAUNTON
                    Rudolph Bumgardner, III, Judge
            (William E. Bobbitt, Jr., Public Defender),
            for appellant. Appellant submitting on brief.

          Thomas C. Daniel, Assistant Attorney General
          (James S. Gilmore, III, Attorney General; Robert B.
     Condon, Assistant Attorney General, on brief),
          for appellee.



     Robert Lee Brock (appellant) was awarded an appeal only from

his bench trial convictions by the Circuit Court of the City of

Staunton (trial court) for nine counts of attempted breaking and

entering in the nighttime.    In addition, appellant was convicted

of three counts of breaking and entering and four counts of grand

larceny.    Those counts arose from events that occurred at the

same area the attempted break-in counts are alleged to have

occurred.    The sole issue presented by this appeal is whether the

evidence is sufficient to support the convictions for the nine

counts of attempted breaking and entering in the nighttime.

     Upon familiar principles, we state the evidence in the light

most favorable to the Commonwealth, granting to it all reasonable

____________________

     *Pursuant to Code § 17-116.010 this opinion is not
designated for publication.


inferences fairly deducible therefrom.   Higginbotham v.

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

On July 30, 1993, appellant along with two accomplices, James

Adams (Adams) and James Sandy (Sandy), carried out a series of

breaking and enterings and larcenies in the City of Staunton.

Prior to trial, co-defendants Adams and Sandy entered into a plea

agreement with the Commonwealth to testify against appellant.
     The evidence established that on July 30, 1993, appellant,

Adams, and Sandy broke into, and stole goods from, three separate

storage units located at a mini-warehouse storage complex owned

by Calvin VanFossen (VanFossen).   The attempted breaking and

enterings are alleged to have occurred at nine other units of the

359-unit mini-warehouse complex.   The evidence introduced to link

appellant to the commission of the nine alleged attempted

breaking and enterings was the testimony of the two co-defendants

Sandy and Adams, and the testimony of VanFossen.

     Adams testified:
               Q. Did you [load](?) items on the
          truck?

               A. Yeah. Then when I was doing that
          [appellant] went up, was up a few doors on
          the storage sheds, I don't know. Four or
          five doors or something like that, doing
          something. Then he said something to me
          about come over here and I walked up there
          and he was pulling on a lock. It appeared to
          be like a big screw driver and he said that
          he didn't have his key but he was trying to
          find, he thought that this one was an easy
          one.



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     Q.       This one was an easy one?

     A. Yeah, that the lock was easy and he
thought he would just go ahead and take the
lock off. So then he asked me to try it. So
I tried it and it didn't come open. So he
was walking back, kept looking around,
looking at the numbers and said yeah, I'm
sure this was it and, at that point I was
like, I am confused here so I just walked
back to the truck. And at that time we just
all got back in the truck and left.

     Q. Do you know how many storage sheds
[appellant] tried to get into?

     A. I didn't notice.            Other than that
that is all I know.
     Sandy testified:

     Q. I'm sorry, okay, okay, you went to
the storage buildings with the defendant
driving in his truck and you loaded up the
sofa and chair and what else?

     A.   If I remember correctly,
[appellant] went around to a couple other
little places there and picked up some more
stuff and I couldn't tell you which one of
the buildings it was.

     Q. Do you remember how many sheds were
entered or attempted to be entered? Do you
have any idea?

     A.       Not exactly, no.

          *      *      *    *      *    *    *

     Q.       Did you try to open some of the
sheds?

     A.       No sir.

     Q.       Who was doing that?

     A.       [Appellant].

     Q.       Was Mr. Adams helping with that?




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               A. I don't know. He was out running
          around too. I couldn't tell you if he was
          trying to open up any or not.

               Q. So you don't know how many they
          tried to open?

               A.    No I don't.

               Q. But you know they got a sofa and
          chair out of one and some other items out of
          another?

               A.    I believe so, yes sir.

               Q. All right, now after that, what were
          you all using, what were they using to get
          in, do you know?
               A. [Appellant] had a great big old long
          mechanic tool. It looks like a crow bar but
          it is not shaped like one. It's straight and
          it's got a, like a wood handle to it. It's
          like you know, you go to pull off the heads
          of something onto a car, something like that.

               Q. Okay. And that's what they took with
          them to . . .

               A. That was inside the front seat of
          the truck, yeah.

               Q. All right, did they take it with
          them when they got out of the truck?

               A.    Yes sir.


     VanFossen testified to what he observed when he came to work

the next morning.   VanFossen said that he observed three storage

units, numbers 313, 315, and 330, where the locks had been

broken, the doors damaged, and entry gained.   He said that he had

examined nine other units, numbers 318, 319, 321, 322, 323, 334,

337, 338, and 339, where the doors had been damaged but entry had

not been gained.    VanFossen also testified that there were 359



                                   - 4 -
units at his business and that he had previously had trouble with

"people either breaking into [his] warehouse units" or attempting

to break-in.   The parties stipulated that Ernie Reed who worked

for VanFossen, and was present in court, if called to testify

would say that he had observed the same things that VanFossen

described.   Matthew Bird, one of VanFossen's tenants, testified

that his rental unit was broken into on this occasion and that

same storage unit had been broken into about a month before.
     There was no evidence presented as to the condition of units

318, 319, 321, 322, 323, 334, 337, 338, and 339 prior to July 30,

1993, or whether the damages to the doors to those units appeared

to be recently made.

     Co-defendant Adams, testifying on behalf of the

Commonwealth, described seeing appellant breaking into one of the

units not included in the nine involved in this appeal.   He

described appellant as not initially being successful in his

break-in on one of the units and that appellant "was walking

back, kept looking around, looking at numbers and said 'yeah, I'm

sure this was it . . .'" thus appearing to be interested in one

particular unit.   When the prosecutor attempted to solicit

testimony from Sandy and Adams, about the nine units related to

this appeal, both men denied any knowledge of appellant's attempt

to enter those units.

     "An attempt to commit a crime consists of (1) the specific

intent to commit the particular crime, and (2) an ineffectual act




                               - 5 -
done toward its commission."    Bell v. Commonwealth, 11 Va. App.

530, 533, 399 S.E.2d 450, 452 (1991) (quoting Lynch v.

Commonwealth, 131 Va. 762, 109 S.E. 427 (1921)).    "Intent is a

state of mind which can be evidenced only by the words or conduct

of the person who is claimed to have entertained it."     Banovitch

v. Commonwealth, 196 Va. 210, 216, 83 S.E.2d 369, 373 (1954).

"An overt act is required to prove an attempted offense because

without it, there is too much uncertainty as to the accused's

actual intent."    Tharrington v. Commonwealth, 2 Va. App. 491,

493, 346 S.E.2d 337, 339 (1986).   Here, there is evidence that

this appellant committed overt acts toward other units but there

is no evidence that he was the criminal agent who damaged the

nine entrances to the specific units for which he stands

convicted.   While it is true that it came to the attention of the

owner and one of his employees that the nine units of the

359-unit mini storage had been damaged, there is no evidence as

to when either of these persons last observed the particular

units.   Additionally, there is evidence that within approximately

thirty days prior to the discovery there had been other

break-ins.   We are of opinion and hold that the evidence is

insufficient to support appellant's guilt as the criminal agent

who damaged units 318, 319, 321, 322, 323, 334, 337, 338, and

339.

       The Commonwealth argues that even if we held the evidence is

insufficient, we should not consider this appeal because



                                - 6 -
appellant at no time made a motion to strike the Commonwealth's

evidence and at his sentencing hearing, he made statements

inconsistent with statements he made at trial.

     In support of its inconsistency argument, the Commonwealth

cites Beavers v. Commonwealth, 150 Va. 33, 142 S.E. 402 (1926).

The facts in that case are distinguishable from those before us.

Here appellant consistently denied any involvement with the nine

units.   There was no relevant inconsistency in his testimony at

trial and at sentencing.
     As the Commonwealth argues, appellant did not specifically

make any motion to strike the evidence that was based upon

insufficiency.   However, in his closing argument, counsel for

appellant addressed the trial court, saying:
          [M]y client is charged with a number of
          attempted, attempts to break-in to, I believe
          it is nine of those warehouses, Judge I don't
          think the Court has heard evidence that would
          in any way sufficiently tie my client to
          going to the first one through the ninth one.
           [Adams and Sandy] have talked about going
          into a warehouse and taking some items out
          but neither of them, and they then digress
          into we were just kind of there and . . . I'd
          ask the Court to give great weight to the
          Commonwealth's witnesses in what they had to
          say about attempted break-ins at a number of,
          of the warehouse, the specific units.


Citing Williams v. Commonwealth, 6 Va. App. 412, 368 S.E.2d 293
(1988), the Commonwealth argues that the sufficiency of the

evidence argument cannot be considered by this Court.   The

Commonwealth then properly cites a later en banc decision by this

Court in Campbell v. Commonwealth, 12 Va. App. 476, 405 S.E.2d 1



                               - 7 -
(1991), in which we said:
            To the extent that [the case] holds that an
          appeal of the sufficiency of the evidence is
          barred by the failure to move to strike the
          Commonwealth's evidence at the conclusion of
          the defendant's evidence even if the issue is
          clearly presented to the trial court by a
          motion to strike at the conclusion of the
          Commonwealth's evidence and in a closing
          argument to a trial court, we overrule it.


Id. at 481, 405 S.E.2d at 3 (emphasis added).   The Commonwealth

further argues that the sufficiency issue was not "clearly

presented" to the trial court in the closing argument and,

therefore, appellant is barred from making the sufficiency

argument in this appeal.   Assuming, without deciding, that the

sufficiency argument made in closing argument was not "clearly

sufficient" to advise the trial court that appellant intended for

his argument to be a motion to strike, we hold that on this

evidence the ends of justice require that appellant's convictions

cannot be justified when the evidence does not prove that

appellant was the criminal agent.

     Accordingly, the judgment of the trial court is reversed and

appellant is dismissed from further prosecution on these charges.
                                         Reversed and dismissed.




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