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Lee v. Commonwealth

Court of Appeals of Virginia

December 19, 2017


         FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Penney S. Azcarate, Judge.

          Charles J. Swedish (Sloan & Swedish, on brief), for appellant.

          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


          JAMES W. HALEY, JR. JUDGE.

         Choon Poong Lee, appellant, was convicted by a jury of statutory burglary, in violation of Code § 18.2-91.[1] 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.


         "Applying 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.

         On 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.

         Later 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."[2]


         Appellant 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.

         Appellant 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.").

         The 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 ...

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