                    COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Overton
Argued at Salem, Virginia


MICHAEL ANTOINE LEE
                                      MEMORANDUM OPINION * BY
v.         Record No. 0139-95-3     CHIEF JUDGE NORMAN K. MOON
                                          MARCH 4, 1997
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
                   Frank I. Richardson, Jr., Judge
           Wayne T. Baucino, Assistant Public Defender
           (Office of the Public Defender, on brief),
           for appellant.

           Margaret Ann B. Walker, Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellee.


     Michael Antoine Lee appeals his conviction of burglary in

violation of Code § 18.2-91.   Lee raises two question: (1)

whether the trial court's instruction to the jury that in the

absence of evidence showing a contrary intent, they may infer

that a defendant's unauthorized breaking into the building of

another in the nighttime was with the intent to commit larceny,

was misleading; and (2) whether the Commonwealth's failure to

provide Lee certified copies of his criminal record fourteen days

prior to trial, as required by Code § 19.2-295.1, rendered the

evidence of Lee's prior convictions inadmissible in the

sentencing proceeding.

     We hold that the jury instruction, an accurate statement of

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the law and applicable to the facts, was not misleading.

Further, we hold that the Commonwealth's failure to precisely

comply with the procedural requirements of Code § 19.2-295.1 did

not violate Lee's substantive rights or result in prejudice to

him.   Accordingly, we affirm.

       At approximately 10:30 p.m., on May 29, 1994, Lee entered

the premises of Martinsville Glass Company through a plexiglass

window located beside a ventilation fan in the rear of the

building.   Lee's entrance triggered a silent alarm, alerting

local police.   Martinsville Police Officer M.H. Swanson received

a call from Martinsville's 911 center and responded, arriving at

Martinsville Glass Company within one minute of the call.
       Swanson and another officer entered the premises and found

Lee sitting in a chair in the rear of the garage area.   Lee did

not have anything in his possession belonging to Martinsville

Glass, but the front office appeared to have been searched.

Papers were strewn about, and the drawers of a desk had been

pulled out.   After being read his Miranda rights, Lee stated that

he had just gotten inside when the police arrived, he "didn't

intend to steal anything," and that he merely wanted to "give the

owners of Martinsville Glass a hard time."

       At trial, over Lee's objection, the Commonwealth offered

among its jury instructions, Instruction 6, which stated that

"[i]n the absence of evidence showing a contrary intent, you may

infer that a defendant's unauthorized breaking into the building

of another in the nighttime was with the intent to commit

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larceny."

     During the sentencing phase of Lee's bifurcated trial, Lee

objected to admission of his prior convictions for, among other

things, grand larceny, breaking and entering and grand larceny,

shoplifting, and destruction of property.   Lee objected to

evidence of his prior convictions because certified copies of the

prior convictions were not supplied to him by the Commonwealth

fourteen days in advance of trial.

                         Jury Instruction

     Lee's objection to Instruction 6 as being without precedent

and misleading, is without merit.    In Jones v. Commonwealth, 3

Va. App. 295, 349 S.E.2d 414 (1986), we held that:
          in a prosecution of burglary with intent to
          commit larceny, the state must prove the
          specific intent to steal beyond a reasonable
          doubt, although it may and frequently must
          prove such intent by the facts and
          circumstances. In the absence of evidence
          showing a contrary intent, the trier of fact
          may infer that a defendant's unauthorized
          presence in a house or building of another in
          the nighttime was with intent to commit
          larceny.

Id. at 299, 349 S.E.2d at 417 (emphasis added).

     Thus, Instruction 6 correctly stated the law, and we find

nothing about the instruction that is misleading.    See Kelly v.

Commonwealth, 8 Va. App. 359, 374 S.E.2d 270 (1989).     Lee seeks

to expand the reason for his objection on appeal to include the

argument that the evidence did not support the granting of the

instruction.   Rule 5A:18 bars Lee from raising a new argument on

appeal except as required to meet the ends of justice.    Lee was

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found to have entered the building of another in the nighttime.

Although Lee stated at the time of his arrest that he did not

enter with intent to commit a larceny, the jury was not required

to accept 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 the testimony

offered.   Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351

S.E.2d 598, 601 (1986).    Because the record does not show any

obvious miscarriage of justice, the ends of justice do not permit

waiver of the Rule 5A:18 bar.     Commonwealth v. Mounce, 4 Va. App.

433, 436, 357 S.E.2d 742, 744 (1987).

                           Prior Convictions

     At the time of Lee's trial, Code § 19.2-295.1 provided in

relevant part that "the Commonwealth shall provide to the

defendant fourteen days prior to trial photocopies of certified

copies of the defendant's prior criminal convictions which it

intends to introduce at sentencing."     In interpreting the

statute, it is important to determine "whether it is mandatory

and jurisdictional or directory and procedural."     Cheeks v.

Commonwealth, 20 Va. App. 578, 582, 459 S.E.2d 107, 109 (1995).
          A mandatory provision in a statute is one
          that connotes a command and the omission of
          "`which renders the proceeding to which it
          relates illegal and void, while a directory
          provision is one the observance of which is
          not necessary to the validity of the
          proceeding; and a statute may be mandatory in
          some respects, and directory in others.'"


Id. (quoting Ladd v. Lamb, 195 Va. 1031, 1035, 81 S.E.2d 756, 759


                                 - 4 -
(1954) (citation omitted)).

        In Riley v. Commonwealth, 21 Va. App. 330, 464 S.E.2d 508

(1995), we concluded that Code § 19.2-295.1 is a procedural

statute and that its provisions do not convey a substantive

right.     Id. at 337, 464 S.E.2d at 511.   Because Code § 19.2-295.1

is directory and procedural, the Commonwealth's failure to

precisely comply with its provisions does not result in the de

facto inadmissibility of evidence of Lee's prior convictions.

Here, Lee's trial was set on November 30, 1994, for December 15,

1994.    Lee admits that he received certified copies of his prior

convictions nine days prior to his trial.     Lee was presumptively

entitled to, but did not request, a six day continuance in order

to fully avail himself of his procedural rights under Code

§ 19.2-295.1.
        Lee's analogy of Code § 19.2-295.1 to the filing period for

certificates of analysis of drugs under Code § 19.2-187 is

misguided.     Code § 19.2-187
             establishes an exception to the rule against
             admitting hearsay, which traditionally has
             been considered unreliable evidence. Since
             the statute authorizes the admission into
             evidence of documents whose reliability had
             not been independently proven, the
             requirement that the certificate be filed
             seven days in advance provides some guarantee
             of trustworthiness in that it gives an
             accused an opportunity to verify the results
             or to subpoena and challenge those who
             conducted the analysis, should that be a
             contested issue.

Myrick v. Commonwealth, 13 Va. App. 333, 337, 412 S.E.2d 176, 178

(1991).    Code § 19.2-187 substitutes the accused's constitutional

                                 - 5 -
right to cross-examine a witness presenting or preparing

evidence, with the seven day notice requirement.   Here, Code

§ 19.2-295.1 does not impinge on any constitutional or

substantive right and hence cannot be characterized as providing

a substitute for such a right.

     The record before us contains no evidence that the

Commonwealth's failure to precisely comply with the procedural

requirements of Code § 19.2-295.1 violated Lee's substantive

rights or resulted in prejudice to him.   Accordingly, we hold the

trial court did not abuse its discretion in admitting the

evidence of Lee's prior convictions, and we affirm.

                                                   Affirmed.




                                 - 6 -
Coleman, J., concurring in part and dissenting in part.



     I concur with the majority that the trial court did not

commit reversible error by admitting into evidence proof of the

defendant's prior convictions during the sentencing phase of the

trial, even though the Commonwealth failed to timely comply with

the filing requirement.   However, I disagree with the majority's

holding that it was proper for the trial court to instruct the

jury that it may infer an intent to steal merely from a lack of

evidence of contrary intent.    Accordingly, I dissent.
     The challenged jury instruction stated, "[i]n the absence of

evidence showing a contrary intent, you may infer that a

defendant's unauthorized breaking into the building of another in

the nighttime was with the intent to commit larceny."     In effect,

the instruction told the jury that they could infer an intent to

steal merely because no evidence of contrary intent was

presented.   In my opinion, the instruction is an incorrect

statement of the law and is an improper instruction to the jury.

 The Commonwealth must prove each and every element of an offense

beyond a reasonable doubt.     Hamm v. Commonwealth, 16 Va. App.

150, 153, 428 S.E.2d 517, 520 (1993).    Intent to commit a

specific crime as part of a breaking and entering is an essential

element of burglary.   See Code § 18.2-91; Ridley v. Commonwealth,

219 Va. 834, 836, 252 S.E.2d 313, 314 (1979).    "Intent is the

purpose formed in a person's mind which may, and often must, be

inferred from the facts and circumstances in a particular case."


                                 - 7 -
 Id.       The instruction given by the court effectually dispensed

with the Commonwealth's burden of proving that the burglar

intended to commit a theft because it told the jury that they

could infer such an intent from a lack of evidence.      A lack of

contrary intent alone cannot give rise to an inferred intent to

steal.      The circumstantial evidence must support an inference of

an intent to steal.      A lack of evidence that tends to prove a

contrary intent is certainly a circumstance that may be

considered, but the lack of evidence alone does not prove intent,

contrary to the jury instruction.
       The language used to formulate the instruction came from

Ridley, 219 Va. at 837, 252 S.E.2d at 314. 1     See also Jones v.

Commonwealth, 3 Va. App. 295, 299, 349 S.E.2d 414, 417 (1986).

However, the Supreme Court has frequently said that "statements

appearing in opinions of courts, while authority for the

propositions set forth, are not necessarily proper language for

jury instructions."       Oak Knolls Realty Corp. v. Thomas, 212 Va.

396, 397, 184 S.E.2d 809, 810 (1971); see also Blondel v. Hays,
241 Va. 467, 474, 403 S.E.2d 340, 344 (1991); Brown v.

Commonwealth, 238 Va. 213, 221-22, 381 S.E.2d 225, 230 (1989);

Snyder v. Commonwealth, 220 Va. 792, 797, 263 S.E.2d 55, 58

(1980).      Moreover, "when, as here, the evidence relevant to the

determination of a factual issue essential to the disposition of
       1
      The language from Ridley is mentioned as possibly being
appropriate for a jury instruction in the comments to Model Jury
Instruction No. 13.220. See Virginia Model Jury Instructions -
Criminal, at I-233 (1995).


                                   - 8 -
the dispute is in conflict, trial courts should not grant

instructions that appear to place a judicial imprimatur on

selective evidence."   Nelms v. Nelms, 236 Va. 281, 286, 374

S.E.2d 4, 7 (1988); see also Oak Knolls Realty, 212 Va. at

397-98, 184 S.E.2d at 810.

     In my opinion, the language that the majority relies upon

from Ridley was merely intended as guidance to the bench and bar

for determining at trial whether the quantum of circumstantial

evidence is legally sufficient to prove that the perpetrator

broke and entered with the specific intent to commit larceny.

The language was not intended as proper for a jury instruction.

Moreover, when the language is given as an instruction, it

constitutes a comment on the evidence by the trial judge.    For

these reasons, I would reverse the defendant's conviction and

remand the case for a new trial on the merits.




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