Tammy Lynn Rohe v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: April 27, 1999
• Docket: 0779982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bray and Senior Judge Baker Argued at Richmond, Virginia

TAMMY LYNN ROHE MEMORANDUM OPINION * BY v. Record No. 0779-98-2 JUDGE RICHARD S. BRAY APRIL 27, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF KING WILLIAM COUNTY Thomas B. Hoover, Judge

(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 appellee.

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

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 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 § 8.01-680.

I.

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 screwdriver.”

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.

- 2 - 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 her?”

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.”

- 3 - 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.”

II.

“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. Commonwealth, 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. Commonwealth, 211 Va. 12, 16, 174

S.E.2d 779, 781 (1970). Thus,

“[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.”

- 4 - 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 record.

- 5 - Thus, the evidence clearly established that defendant

attempted to break and enter the residence, then intending to

commit larceny, and we affirm the conviction.

Affirmed.

- 6 -