BELL v. COMMONWEALTH




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BELL

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank

Argued at Chesapeake, Virginia

Record No. 3181-02-1

MAHTORHEE LYCURGUS BELL, III

v.

COMMONWEALTH OF VIRGINIA

 

MEMORANDUM OPINION[1]
BY JUDGE RUDOLPH BUMGARDNER, III

NOVEMBER 4, 2003

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE

Frederick H. Creekmore, Judge

Elizabeth D. Ireland (Tarter, Ireland & Winn, P.C., on
brief), for

appellant.

Stephen R. McCullough, Assistant Attorney General (Jerry W.

Kilgore, Attorney General, on brief), for appellee.

The trial court convicted Mahtorhee Lycurgus Bell of breaking
and entering, grand

larceny, attempted breaking and entering, and possession of
burglary tools.[2] The only
issue

granted on appeal is whether the evidence was sufficient to
prove possession of burglary tools.

Concluding the evidence was sufficient, we affirm.

We view the evidence and the reasonable inferences therefrom in
the light most favorable

to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514,
578 S.E.2d 781, 786

(2003). Fred Ashbrook secured his home at 5:45 a.m. and went to
work. Later, his neighbor, an

off-duty police officer, saw the defendant ringing Ashbrook’s
doorbell, looking through his

windows, and looking up and down the street. The neighbor called
911 to report the incident and

watched the defendant move to the rear of the house, looking in
each window as he went.

A police officer responded to the scene and saw the defendant
manipulating the screen

door with something in his hand. When the officer announced
"Chesapeake police," the

defendant fled. The officer and the neighbor chased and
apprehended the defendant. They

found two, three-inch in diameter rocks in the defendant’s front
pants pocket. The "sharp pointed

rocks" had a point that stuck out when held in one’s hand.
The officer found no other rocks

along the defendant’s path. The officer found a tear in the
screen next to the door latch.

The defendant testified he was looking for his sister’s house
and was knocking on the

screen door. When he saw someone in the bushes, he ran. He
maintained he "snatched" up the

rocks while running and held them in his hand. The defendant
said he was glad the police

arrived because he thought he was going to be robbed. The
defendant denied seeing the officer

or hearing him announce, "police."

The Commonwealth must prove the defendant possessed "tools,
implements or outfits"

with the intent to use them to commit burglary. Code ? 18.2-94.
He was not granted an appeal

attacking the sufficiency of the attempted burglary conviction.
The evidence was sufficient to

prove his intent to break and enter, and the defendant concedes
that rocks can be burglary tools.

The defendant possessed two rocks, each with a sharp point. He
used the rocks to make a

hole in the wire mesh of the screen door. Considering that the
defendant used the rocks to assist

in breaking through the door and that he intended to break and
enter, the evidence was sufficient

to prove he possessed burglary tools. "The fact finder need
not believe the accused’s explanation

and may infer that he is trying to conceal his guilt."
Black v. Commonwealth, 222 Va. 838, 842,

284 S.E.2d 608, 610 (1981). Moreover, the defendant’s flight
when the officer announced

himself may be considered as evidence of guilt. Clagett v.
Commonwealth, 252 Va. 79, 93, 472

S.E.2d 263, 271 (1996). The evidence was sufficient.
Accordingly, we affirm his conviction.

Affirmed

 

FOOTNOTES:

[1]Pursuant to
Code ? 17.1-413, this opinion is not designated for publication.

 

[2]"If 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." Code ? 18.2-94.


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