Opinion
Record No. 1998-92-2
March 29, 1994
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND JAMES B. WILKINSON, JUDGE.
Susan D. Hansen, Assistant Public Defender (David J. Johnson, Public Defender; Jody Jacobson Pruett, Assistant Public Defender, on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Kelvin V. Robinson appeals his conviction for breaking and entering with the intent to commit a felony. On appeal, he contends that the evidence was insufficient to support a finding that he had the requisite intent to commit a felony at the time he broke into the victim's residence. For the reasons that follow, we affirm appellant's conviction.
Appellant's mother, Linda Copeland, was hospitalized following a fight with Alfred Lewis, her live-in boyfriend of six years. When appellant learned of these events, he and his two sisters went to Lewis' apartment, purportedly to talk to him, but he was not home. The three went back the following morning and, with the help of a neighbor, kicked in the front door. Appellant admitted that he was "very mad" and "upset" because he thought Lewis had hurt his mother.
According to Lewis, he was hammering when the group broke down the door, entered and began to hit him. Appellant grabbed the hammer out of Lewis' hands and hit him on the left temple and in various other places before dragging him outside. Appellant subsequently admitted to police that he went to Lewis' apartment "to talk to him" and that he hit Lewis "five to six times in the . . . ribs and stomach and possibly in the head." He and his sister, Cynthia, both testified, however, that Lewis initiated the violence. Finally, appellant testified that he thought of Lewis as part of the family and did not intend to hurt him.
On appeal [of a criminal conviction], we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). "[T]he finding of the judge, upon the credibility of the witnesses and the weight to be given their evidence, stands on the same footing." Speight v. Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987). Finally, "[c]ircumstantial evidence is as acceptable to prove guilt as direct evidence, and in some cases, such as proof of intent . . ., it is practically the only method of proof." Cirios v. Commonwealth, 7 Va. App. 292, 295, 373 S.E.2d 164, 165 (1988) (citations omitted). When circumstantial evidence is used to prove intent, "[a]ll necessary circumstances proved must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence." Boothe v. Commonwealth, 4 Va. App. 484, 492, 358 S.E.2d 740, 745 (1987).
"[W]hen an unlawful entry is made into [the] dwelling of another, the presumption is that the entry was made for an unlawful purpose and the specific intent with which such entry was made may be inferred from the surrounding facts and circumstances." Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979) "In the absence of evidence showing a contrary intent, the trier of fact may infer that a defendant's unauthorized presence in [the] house or building of another . . . was with the intent to commit larceny," id. at 837, 252 S.E.2d at 314. The surrounding facts and circumstances of this case support the trial judge's finding that appellant had the intent to inflict a severe beating upon Lewis.
The uncontradicted evidence in this case showed that appellant entered Lewis' residence after one of his companions broke down the door, giving rise to the presumption that his presence was for an unlawful purpose. We conclude that this evidence, coupled with the fact that appellant was "very mad" and "upset" at Lewis before entering and that he maliciously wounded Lewis after entering, was sufficient to support appellant's conviction for breaking and entering with the intent to commit a felony. Although appellant denied possessing the requisite intent, stating instead that he went to Lewis' house to talk, the trier of fact was entitled to assess the credibility of his testimony, and was free to conclude that appellant was lying to conceal his guilt. See Wright v. West, 112 S. Ct. 2482, 2492 (1992).
For these reasons, we affirm appellant's conviction.
Affirmed.