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Assault victim’s trial testimony was credible

Where appellant was convicted of simple abduction, sexual assault, and attempted statutory burglary, the victim’s credible testimony provided sufficient evidence of the abduction and sexual assault charges.

Credible testimony

“Breakley contends that the Commonwealth failed to show he detained or sexually abused Smith. He argues that Smith’s testimony was so inherently incredible that she should not be believed. … The circuit court specifically rejected Breakley’s version of the events and found Smith’s testimony to be more credible. …

“[T]he record establishes that Breakley came to Smith’s home because he was mistakenly invited. An argument between Breakley and Smith ensued. After gaining access to the home, Breakley grabbed Smith and pushed her into the bedroom against her will. There he lifted Smith’s shirt and began to fondle and bite her breasts.

“After Smith kicked Breakley off her, he grabbed Smith’s phone and went into the kitchen attempting to search through it. Smith followed to get her phone back. Breakley then grabbed Smith, placed her on the counter, and attempted to take off her pants.

“During the scuffle, Smith and her phone ended up on the ground and Smith was able to call her father. Upon hearing Allen Smith’s voice through the Bluetooth speaker, Breakley went outside, grabbed an empty gas can, and attempted to light some bushes on fire.

“He then walked around the house and attempted to get in the side doors and then the back window before leaving.

“Breakley’s convictions ‘may be sustained solely upon the testimony of the victim, even in the absence of corroborating evidence.’ … Nothing about Smith’s testimony renders it contrary to human experience, and her testimony was sufficient to sustain convictions for abduction and sexual battery.”

Attempted burglary

“Breakley also contends that the evidence was insufficient to convict him of attempted statutory burglary. Breakley asserts that the Commonwealth failed to prove he intended to commit statutory burglary or that Breakley took a direct, ineffectual act towards committing statutory burglary.

“Breakley argues that without Smith’s testimony the only evidence in the record attesting to his intent was his testimony that he went to the window to speak to Smith. Additionally, Breakley argues that he did not appear at the window where the planks were found.

“Breakley further argues that it is physically impossible to enter the house from the back window where the planks were discovered because the planks were not propped up high enough for Breakley to lift himself through the window. …

“[T]wo-by-four planks which had not been there before the incident were found below the back window at an angle. By Breakley’s own admission, he walked around the home and knocked on the window after Smith told him to leave.

“Based on Breakley’s behavior, statements, and actions, the circuit court reasonably inferred that Breakley attempted to re-enter Smith’s house through the window using the two-by-four planks with an unlawful purpose. We will not disturb the circuit court’s finding on appeal.”


“We find that the evidence was sufficient to convict Breakley of simple abduction, sexual assault, and attempted statutory burglary.”


Breakley v. Commonwealth, Record No. 0906-21-3, Aug. 16, 2022. CAV (Humphreys) From the Circuit Court of the City of Danville (Milam) Brooke Carroll for appellant. Lucille M. Wall, Jason S. Miyares for appellee. VLW 022-7-333, 8 pp. Unpublished opinion.

VLW 022-7-333

Virginia Lawyers Weekly