COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, McClanahan and Senior Judge Fitzpatrick
Argued at Salem, Virginia
JERRY DAVID SAYERS
MEMORANDUM OPINION * BY
v. Record No. 1504-06-4 JUDGE LARRY G. ELDER
DECEMBER 11, 2007
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF TAZEWELL COUNTY
Henry A. Vanover, Judge
Richard C. Patterson (Gillespie, Hart, Altizer & Whitesell, P.C., on
brief), for appellant.
Josephine F. Whalen, Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Jerry David Sayers (appellant) appeals from his jury trial conviction for statutory
burglary pursuant to Code § 18.2-90, based on an entry “in the nighttime . . . without breaking”
with intent to commit murder. On appeal, he contends the evidence was insufficient to support
his conviction because it proved he had permission to enter the residence at issue. 1 Because the
evidence, viewed in the light most favorable to the Commonwealth, supported the jury’s finding
that appellant’s entry was without permission, we affirm appellant’s conviction. 2
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Appellant does not contest the sufficiency of the evidence to prove he acted with the
requisite intent, and thus, we do not recount the evidence relating to that issue.
2
The Commonwealth contends proof of permission negates only the element of breaking
and that, because this element was not required to be proved in appellant’s case, in which the
charge was based on an entry “in the nighttime . . . without breaking,” the existence of
permission to enter is not relevant. The Commonwealth also argues that, even if appellant
“generally had consent to enter, the scope of the permission did not include entry for the purpose
of killing [wife].” See Clarke v. Commonwealth, 22 Va. App. 673, 675-77, 472 S.E.2d 663,
When considering the sufficiency of the evidence on appeal in a criminal case, we view
the evidence in the light most favorable to the Commonwealth, granting to the evidence all
reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va.
349, 352, 218 S.E.2d 534, 537 (1975). The credibility of a witness, the weight accorded the
testimony, and the inferences to be drawn from proven facts are matters to be determined by the
fact finder. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989). Further,
the fact finder may accept some parts of a witness’ testimony and reject others. Pugliese v.
Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993). “The fact that a witness makes
inconsistent statements . . . does not render his testimony . . . unworthy of belief. . . . It is firmly
imbedded in the law of Virginia that the credibility of a witness who makes inconsistent
statements on the stand is a question for the jury . . . .” Swanson v. Commonwealth, 8 Va. App.
376, 378-79, 382 S.E.2d 258, 259 (1989). The jury’s verdict “shall not be set aside unless it
appears from the evidence that [the verdict] is plainly wrong or without evidence to support it.”
Code § 8.01-680; Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988).
Here, the testimony of Michael Murphy, Sr., viewed in the light most favorable to the
Commonwealth, supported the jury’s finding that appellant’s entry of the Murphy residence on
the night of March 7, 2003, was without permission. Murphy testified that, although appellant
664-65 (1996) (holding entry of business during ordinary nighttime operating hours when
business was open to public was not consensual under burglary statute where entrant’s purpose
was to commit robbery), aff’d on reh’g en banc, 24 Va. App. 253, 481 S.E.2d 495 (1997).
We assume without deciding, for purposes of this appeal only, that proof appellant
entered with “general” permission would have required an acquittal, as appellant argues.
Nevertheless, the jury was instructed it could find appellant guilty only if his entry was without
permission, and this instruction became the law of the case. Because the evidence, viewed in the
light most favorable to the Commonwealth, supported the jury’s finding that appellant’s entry
was without permission, we affirm appellant’s conviction for statutory burglary without
addressing the Commonwealth’s argument that proof of permission negates only the element of
breaking or that proof of general permission to enter does not constitute permission to enter for
the purpose of committing a crime.
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had previously been “welcome [at the Murphy residence] anytime,” appellant “[u]sually . . .
asked [Murphy] [whether he could] come in” before entering and waited until Murphy “waved
him on in.” On the night of March 7, 2003, appellant’s wife arrived at the Murphys’ residence
before appellant. She roused Murphy from his sleep and told Murphy she needed his help
because appellant was trying to kill her.
When appellant knocked a short time later, Murphy answered the door. Although
Murphy held the door “open wide enough for an individual to get in,” he testified that, because
of what appellant’s wife had told Murphy, he did not “wave[] [appellant] in” and “figured [he]
and [appellant] would just talk.” When appellant asked Murphy if his wife was there, Murphy
responded, “Yeah, [appellant,] she is, but right now she doesn’t want to talk to you.” Appellant
said, “[W]ell, I need to talk to her.” Appellant then walked through the open door past Murphy
so quickly that Murphy had no “time to react.” Murphy testified that appellant’s entering
without his permission was “unusual,” and when asked whether he “g[a]ve [appellant]
permission to enter [his] doorway” that night, Murphy responded, “No, I never. . . . [He] just
entered.” This evidence was sufficient to support the jury’s finding that appellant’s entry was
without permission.
That Murphy also testified he did not “have a problem” with appellant’s entry “at that
point” because “[he] was hoping they would kind of talk it out man and wife” does not compel a
different result. This evidence, viewed in the light most favorable to the Commonwealth, does
not contradict Murphy’s testimony that appellant entered without permission. Further, even if
we were to view this testimony as contradictory, the jury was entitled to credit Murphy’s original
testimony that appellant’s entry was without permission and to disregard Murphy’s contradictory
statements. See Pugliese, 16 Va. App. at 92, 428 S.E.2d at 24; Swanson, 8 Va. App. at 378-79,
382 S.E.2d at 259.
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Murphy’s testimony on cross-examination that appellant “did not break and enter my
house” also does not compel a different result. First, to the extent this testimony could be
viewed as contradicting Murphy’s earlier testimony that appellant entered without permission,
the jury, as the finder of fact, was free to determine which of the two contradictory statements to
credit. Second, proof of a breaking was not required under the portion of the statute appellant
was convicted for violating. Murphy’s testimony, viewed in the light most favorable to the
Commonwealth, avers only his belief that appellant did not both “break and enter” and conveys
nothing about whether Murphy believed appellant “enter[ed]” his home in contravention of Code
§ 18.2-90. Third, whether appellant “enter[ed]” Murphy’s home in contravention of Code
§ 18.2-90 was a legal question to be resolved based on the instructions given by the court and the
jury’s related findings in light of the factual testimony. Although Murphy gave factual testimony
relevant to this determination, his attempt to draw a legal conclusion was not binding on the
court. See Elam v. Commonwealth, 229 Va. 113, 115-16, 326 S.E.2d 685, 686-87 (1985)
(holding victim’s factual testimony and medical evidence supported conviction for rape despite
victim’s conclusory statement that defendant “didn’t rape me” because “the jury could rationally
discount the [conflict] . . . as the product of lay ignorance of . . . legal principles”).
For these reasons, we hold the evidence, viewed in the light most favorable to the
Commonwealth, supported the jury’s finding that appellant’s entry was without permission.
Thus, we affirm appellant’s conviction for statutory burglary.
Affirmed.
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