APRIL 27, 1999

Record No. 0779-98-2





Thomas B. Hoover, Judge

Present: Judges Elder, Bray and Senior Judge

Argued at Richmond, Virginia


(Anne H. Harris; Harris & Harris, on
brief), for appellant. Appellant submitting on brief.

Donald E. Jeffrey, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on brief), for

Tammy Lynn Rohe (defendant) was convicted in a
bench trial for an attempted breaking and entering, with intent
to commit larceny. On appeal, defendant challenges the
sufficiency of the evidence to support the conviction. Finding no
error, we disagree and affirm the trial court.

The parties are fully conversant with the
record, and this memorandum opinion recites only those facts
necessary to a disposition of the appeal.

"On appeal, ‘we review the evidence
in the light most favorable to the Commonwealth, granting to it
all reasonable inferences fairly deducible therefrom.’"
Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826,
831 (1997) (citation omitted). The credibility of the witnesses,
the weight accorded testimony, and the inferences to be drawn
from proven facts are matters to be determined by the fact
finder. See Long v. Commonwealth, 8 Va. App. 194,
199, 379 S.E.2d 473, 476 (1989). The judgment of the trial court
will not be set aside unless plainly wrong or without support in
the evidence. See Code Sect. 8.01-680.


The record discloses that, on July 7, 1997,
Geraldine Overstreet was ill and had remained home from her
regular employment. In the early afternoon, Mrs. Overstreet
"was in the bathroom washing clothes . . . [and] heard this bumping noise." She "went up the hallway[,] . . . heard something . . . cracking or
. . . popping," and suddenly the front door, which
had been "closed and locked," "came open."
Mrs. Overstreet "scream[ed], you can’t come in
here," and "pulled [the door handle] in, because the
person had something . . . to break the chain"
restraint remaining on the door. During the commotion, the
curtain fell from the doorway window, and Mrs. Overstreet
recognized her niece, defendant, "standing there with a long

Mrs. Overstreet had not seen defendant since
December, 1996, and she did not have permission to enter her
home. When Mrs. Overstreet asked, "why are you doing
this?," defendant answered that she "came to turn
[herself] in" and requested that Mrs. Overstreet "call
her mother." Instead, she telephoned the
"courthouse" and reported to a deputy sheriff that
"[defendant] just tried to break in. Can you come and get

When Mrs. Overstreet would not permit defendant
to enter her home, which contained substantial furnishings and
other items of value, defendant "put the screwdriver
down," and declared that "she had two brown envelopes
she wanted [Mrs. Overstreet] to have." Mrs. Overstreet
instructed defendant to "[l]eave it on the picnic
table," later discovering that one envelope contained an
operational cellular telephone. Shortly thereafter, police
arrived and arrested defendant for attempting to break and enter
the Overstreet residence, with the intent to commit larceny, the
subject offense.

Woodrow Overstreet, Mrs. Overstreet’s
husband, testified that he had spoken with his sister, Frieda
Thornton, defendant’s mother, several days prior to the
offense and was advised that defendant "was to turn herself
in to family," "supposed to turn herself in [at the
church]; so [they] were looking for her." Defendant objected
to the court’s inquiry into the meaning of Mr.
Overstreet’s reference to "turn herself in." Mr.
Overstreet had not seen or spoken with defendant in "four or
five years" but had "told her before, if she needed to
come [to his home], she could come there when somebody was there,
and [he] didn’t want her to break in."

Defendant moved the court to strike the
Commonwealth’s evidence, arguing that it did not
sufficiently prove that defendant attempted to break and enter
the home with the requisite larcenous intent. Defendant’s
counsel hypothesized that defendant "was knocking on the
door with a screwdriver, trying to knock louder so that somebody
would answer, so that she could turn herself in." Finding
this argument incredible, the court denied the motion and
convicted defendant of the instant charge, noting that the
evidence "shows only that [defendant] had the intent to
break into the house, and that there were items of value there
for her to steal."


"An attempt to commit a crime consists of
(1) the specific intent to commit the particular crime, and (2)
an ineffectual act done towards its commission." Bell v.
, 11 Va. App. 530, 533, 399 S.E.2d 450, 452
(1991) (citation omitted). Intent is a state of mind that may be
shown by the circumstances surrounding the offense, including
defendant’s words and conduct. See Chittum v.
, 211 Va. 12, 16, 174 S.E.2d 779, 781 (1970).

"[w]hen an unlawful entry
is made into a dwelling, the presumption is that
the entry was made for an unlawful purpose. And
we think it likewise correct that the specific
purpose, meaning specific intent, with which such
entry is made may be inferred from the
surrounding facts and circumstances."

Black v. Commonwealth, 222 Va. 838, 840,
284 S.E.2d 608, 609 (1981) (citations omitted). "In the
absence of evidence showing a contrary intent, the trier of fact
may infer that a person’s unauthorized presence in
another’s house was with the intent to commit larceny."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d
730, 732 (1995) (citation omitted).

The Commonwealth "‘is not required to
disprove every remote possibility of innocence, but is, instead,
required only to establish guilt of the accused to the exclusion
of a reasonable doubt.’" Cantrell v. Commonwealth,
7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988) (citation
omitted), cert. denied, 496 U.S. 911 (1990).
"The hypotheses [of innocence] which the prosecution must
reasonably exclude are those ‘which flow from the evidence
itself, and not from the imagination of defendant’s
counsel.’" Black, 222 Va. at 841, 284 S.E.2d at
609 (citation omitted).

Here, defendant, in possession of a
screwdriver, forcibly opened the locked front door of the
Overstreet residence, during a time when the house was
customarily unoccupied. Mr. and Mrs. Overstreet had not been in
contact with defendant for a substantial time and had not given
permission for her to enter their home, which contained
personalty of significant value. The evidence provided no
explanation for defendant’s unlawful conduct, and the
hypothesis offered by defense counsel was without support in the

Thus, the evidence clearly established that
defendant attempted to break and enter the residence, then
intending to commit larceny, and we affirm the conviction.






[1] Pursuant to Code
Sect. 17.1-413, recodifying Code Sect. 17-116.010, this
opinion is not designated for publication.