THE CIRCUIT COURT OF FAIRFAX COUNTY Penney S. Azcarate,
Charles J. Swedish (Sloan & Swedish, on brief), for
Stephen L. Forster, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Present: Judges Alston, Chafin and Senior Judge Haley Argued
at Fredericksburg, Virginia
W. HALEY, JR. JUDGE.
Poong Lee, appellant, was convicted by a jury of statutory
burglary, in violation of Code § 18.2-91. Code §
18.2-91 provides, in pertinent part, that "[i]f any
person . . . [in the daytime breaks and enters . . . a
dwelling house, as prohibited in Code] § 18.2-90 with
intent to commit larceny . . . he shall be guilty of
statutory burglary . . . ." The legislature imposes an
enhanced penalty "if the person was armed with a deadly
weapon at the time of such entry." Code § 18.2-91.
Appellant concedes he was guilty of breaking and entering the
dwelling, but contends the evidence was not sufficient to
prove he was armed with a deadly weapon at the time of entry.
The issue here for resolution is whether a not per
se deadly weapon may be defined as a deadly weapon based
upon its possessor's intent and subsequent use as a
deadly weapon. We conclude it can be so defined. For the
reasons that follow, we affirm.
principles of appellate review, we recite the facts in the
light most favorable to the prevailing party below, the
Commonwealth." Jones v. Commonwealth, 279 Va.
295, 298, 687 S.E.2d 738, 739 (2010). So viewed, the evidence
adduced at trial established that appellant knew the victim
and her family from church and he previously worked with the
victim's husband. Appellant had helped the family move
into their residence.
September 23, 2015, the victim was home alone during the
daytime while her children were at school and her husband was
at work. Late that morning, appellant parked his truck near
the victim's home and walked to the back of the home. A
neighbor's security camera recorded appellant sitting in
his truck and the victim's car parked in the driveway.
The video showed appellant walking to the victim's home,
wearing gloves, sunglasses, and a hat. Appellant found an
open window to the basement and used a screwdriver to pry
open the screen. Appellant went upstairs to where the victim
was watching television. Appellant pointed the screwdriver at
the victim and demanded money. Appellant approached the
victim, putting the screwdriver to her neck and cutting her
with it, and he again demanded money. Appellant removed the
victim's clothing and touched her breasts and genital
area. Appellant attempted to have intercourse with her. The
victim testified she feared appellant "was going to
kill" her, so she told appellant she would give him
money from her purse. Appellant stopped assaulting the victim
and followed her to a bedroom. The victim gave him her
wallet, which contained approximately $2, 000 in currency.
Appellant left the home, and the victim immediately called
her husband. The victim testified that she did not recognize
the man in her home because his face was covered and she
could see only his eyes.
that same day, Detective Brian Beyerson stopped
appellant's truck, which matched the vehicle in the
security video. Beyerson transported appellant to police
headquarters for questioning. Detective Matthew Horn
conducted the interrogation. Officer Young Lee, no relation
to appellant, assisted Horn with translating the conversation
as appellant primarily spoke Korean. The FBI later produced
an official verbatim translation that was admitted into
evidence at trial. Appellant initially lied, but eventually
admitted he went to the victim's home. He said his intent
was to get money because he owed his brother-in-law $3, 000.
Appellant stated he pried open the screen to the open window
with the screwdriver to get into the home. Appellant told
Horn that he covered his face with a towel that he found
inside the home by the window. Appellant told Horn he did not
know anyone was in the home. Appellant stated that when he
went upstairs he was surprised to see the victim watching
television. Horn asked appellant why he had the screwdriver.
Appellant responded, "Ah, it was just to make [her]
threaten . . . I didn't know but, when you open the
window . . . the window was opened, so I
couldn't open it with hands."
admits he committed a breaking and entering, in the daytime,
of a dwelling house. He argues, however, that the enhanced
penalty for being armed with a deadly weapon does not apply
because a screwdriver is not a per se deadly weapon
and, for purposes of the burglary, he used the screwdriver
only as a burglarious tool. Appellant asserts his actions
with the screwdriver, inside the home, were not relevant to
classify the screwdriver as a deadly weapon because the
burglary was complete once he entered the home.
concedes he used the screwdriver in a deadly manner
after the burglary was complete. This concession is
consistent with the law on non per se deadly weapons
being classified as deadly. See Pannill v.
Commonwealth, 185 Va. 244, 253-54, 38 S.E.2d 457, 462
(1946) ("[A] weapon may not be per se deadly,
yet the vicious and cruel use of it may be the determinative
factor in pronouncing it deadly, " including a
"steel screw driver.").
dispositive question, then, is whether there was sufficient
evidence to prove the screwdriver could be defined as deadly
at the time appellant used it in the commission of the
burglary. Viewing the evidence in the light most favorable to
the Commonwealth, as we must, "[w]e will reverse a
conviction based on a sufficiency challenge only if the trial
court's judgment is plainly wrong or ...