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),
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
We hold that the jury instruction, an accurate statement of
*Pursuant to Code ? 17-116.010 this opinion is not
designated for publication.
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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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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.
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
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).
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
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(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
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
Myrick v. Commonwealth, 13 Va. App. 333, 337, 412 S.E.2d 176, 178
(1991). Code ? 19.2-187 substitutes the accused’s constitutional
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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.
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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.”
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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
1The 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).
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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.