Vincent Ardie Opie v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Humphreys and Senior Judge Overton
Argued at Chesapeake, Virginia
VINCENT ARDIE OPIE
MEMORANDUM OPINION * BY
v. Record No. 2173-99-1 JUDGE SAM W. COLEMAN III
AUGUST 29, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Kenneth R. Yoffy (Cope, Olson & Yoffy,
P.L.C., on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Vincent Ardie Opie was convicted in a bench trial of
robbery, abduction, and burglary while armed with a deadly
weapon. On appeal, Opie argues that the evidence is
insufficient to support his conviction for burglary while armed
with a deadly weapon. We disagree and affirm the conviction.
BACKGROUND
"On review of a challenge to the sufficiency of the
evidence, we view the evidence in the light most favorable to
the Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom." Robertson v.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
Commonwealth, 31 Va. App. 814, 820, 525 S.E.2d 640, 643 (2000)
(citing Commonwealth v. Jenkins, 255 Va. 516, 521, 499 S.E.2d
263, 265 (1998)). So viewed, the evidence proved that
ninety-three-year-old Arthur Lomax was at his home in Newport
News. Lomax testified that, at approximately 11:00 a.m., shortly
after his daughter left for work, Opie walked into his yard and
onto his front porch where Lomax was sitting. Opie, while
brandishing a box-cutter, grabbed Lomax by the arm and "carried"
him inside the house. Opie asked Lomax for money and Lomax
responded that he did not have any. Lomax tried to leave, but
Opie forced Lomax into the bedroom and tried to suffocate him with
a pillow. Opie then tied Lomax's hands behind his back and tied
his feet with a lamp cord. Opie, armed with the box-cutter, again
demanded Lomax's money and Lomax told him that it was in a drawer.
Opie took $200 and Lomax's watch. Before he left, Opie again
tried to suffocate Lomax with a pillow. Lomax was unconscious
when Opie finally left.
Although Lomax identified Opie as the intruder at trial, he
was unable to identify him at the preliminary hearing. Lomax,
however, testified that the reason he was unable to identify Opie
at the preliminary hearing was because defense counsel was
blocking his view.
Opie testified that on the day of the incident, he was
jogging in the victim's neighborhood and became tired. He
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admitted that he went to Lomax's house to use the phone to call
his brother. Opie testified that he left Lomax's house and began
walking back to his home. Opie encountered his nephew in a
parking lot just before noon and the two left the area. Opie
admitted that he told Lomax's daughter, Inez Walker, that he
needed to use the phone to secure a ride because his car had
broken down and not because he was tired from jogging.
ANALYSIS
Opie argues that the evidence is insufficient to support his
burglary conviction because the Commonwealth failed to prove that
there was a breaking, either actual or constructive, and failed to
prove that he was armed with a deadly weapon at the time he gained
entry into the residence.
"The judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict, and will not be
disturbed on appeal unless plainly wrong or without evidence to
support it." Beck v. Commonwealth, 2 Va. App. 170, 172, 342
S.E.2d 642, 643 (1986) (citations omitted).
"Actual breaking involves the application of some force,
slight though it may be, whereby the entrance is effected.
Merely pushing open a door, turning the key, lifting the latch,
or resort to other slight physical force is sufficient to
constitute this element of the crime." Davis v. Commonwealth,
132 Va. 521, 523, 110 S.E. 356, 357 (1922). "Where entry is
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gained by threats, fraud or conspiracy, a constructive breaking
is deemed to have occurred." Jones v. Commonwealth, 3 Va. App.
295, 299, 349 S.E.2d 414, 416-17 (1986) (citations omitted).
"'[A] breaking, either actual or constructive, to support a
conviction of burglary, must have resulted in an entrance
contrary to the will of the occupier of the house.'" Johnson v.
Commonwealth, 221 Va. 872, 876, 275 S.E.2d 592, 595 (1981)
(quoting Davis, 132 Va. at 523, 110 S.E. at 357).
Here, there was no evidence of an actual breaking. There
was no evidence that any force, however slight, was used by Opie
to gain entry into the dwelling. However, the evidence proved a
constructive breaking. Lomax testified that Opie walked onto
his porch, grabbed him by the arm, and while holding a
box-cutter, forced Lomax inside the house. Lomax testified that
he was "scared" and that "[he] couldn't do nothing about it."
Accordingly, the evidence proves beyond a reasonable doubt that
Opie gained entry into the residence by threat of violence to
Lomax.
To elevate statutory burglary to a Class 2 felony, the
Commonwealth had to prove that Opie was armed with a deadly
weapon at the time of the entry. See Code § 18.2-90. The
Supreme Court has stated that:
A deadly weapon is one which is likely to
produce death or great bodily injury from
the manner in which it is used, and whether
a weapon is to be regarded as deadly often
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depends more on the manner in which it has
been used than on its intrinsic character.
Pritchett v. Commonwealth, 219 Va. 927, 929, 252 S.E.2d 352, 353
(1979) (internal quotations and citations omitted). "[U]nless a
weapon is per se a deadly one, the fact finder should determine
whether it, and the manner of its use, place it in that
category, and the burden of showing these things is upon the
Commonwealth." Id. (citations omitted). We have stated that a
box-cutter is "plainly 'a keen-edged cutting instrument.'"
O'Banion v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___,
___ (2000) (en banc). We further stated:
[A box-cutter] is not materially different
from a locked-blade knife, in that it has a
retractable blade that can be locked into
place. As such, by incorporating a razor
blade, the box-cutter combines the
fine-edged sharpness of a straight razor
with the retracting capacity of a
locked-blade knife.
Id. It is common knowledge that a box-cutter is an instrument
with a sharp blade or razor that could be used as a weapon to
kill or inflict serious injury on a person.
Here, Lomax testified that Opie held the box-cutter in his
hand and displayed the box-cutter while grabbing Lomax and forcing
him inside the residence. The evidence supported the finding by
the trial judge as fact finder that the "keen-edged cutting
instrument" used to threaten Lomax and to gain entry into the home
was a deadly weapon.
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Accordingly, we hold that the evidence is sufficient to
support the conviction.
Affirmed.
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