COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bumgardner and Agee
Argued at Salem, Virginia
MICHAEL JASPER COUNCIL
MEMORANDUM OPINION * BY
v. Record No. 2441-00-3 JUDGE G. STEVEN AGEE
OCTOBER 16, 2001
COMMONWEALTH OF VIRGINIA AND
CITY OF LYNCHBURG
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
David D. Embrey for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee Commonwealth of Virginia.
Michael Jasper Council (Council) was convicted in the
Circuit Court for the City of Lynchburg of statutory burglary
with intent to commit a misdemeanor, in violation of Code
§ 18.2-92, and misdemeanor property damage. He was sentenced to
serve a five-year term of incarceration. Council appeals the
burglary conviction contending the evidence was insufficient to
convict him of the particular charge. We disagree and affirm
the conviction.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
value, only those facts necessary to a disposition of this
appeal are recited.
On January 31, 2000, Melissa Wiggins was in her bedroom in
her shared apartment when she was awakened by a banging noise.
She got out of bed and dressed, and then noticed the doorknob to
her closed bedroom door turn. Believing it was one of her
roommates, Wiggins instructed the person on the other side of
the bedroom door to come into the room. When the door opened
Council, a man she had never seen before, stood before her.
Wiggins asked Council who he was, to which he replied,
"police." Wiggins then instructed Council to leave as she
yelled for her roommates. Council ran out of the apartment
through the front door. No one was touched, and nothing was
taken from the apartment. The deadbolt lock on Wiggins'
apartment door had been knocked out of the door along with parts
of the door which surrounded the lock.
Wiggins called 911 and described the intruder and his
clothing, noting that he wore a white bandana on his head.
While Wiggins was on the phone with the 911 dispatcher, the
police stopped Council outside the apartment building because he
matched the given description minus the bandana. When told he
was under arrest, Council ran, and as he did so, threw a pair of
white women's underwear onto the sidewalk. The police soon
apprehended him one block from the apartment with his trousers
unzipped.
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Upon his arrest, Wiggins identified Council as the
intruder. Council denied he broke into the apartment and was
the person Wiggins encountered.
I. STANDARD OF REVIEW
Council argues that, although the Commonwealth's evidence
supported a breaking and entering charge, there was no evidence
that he entered the apartment with intent to commit any
misdemeanor offense. When the sufficiency of the evidence is
challenged, we consider all the evidence, and any reasonable
inferences fairly deducible therefrom, in the light most
favorable to the party that prevailed at trial, which is the
Commonwealth in this case. Higginbotham v. Commonwealth, 216
Va. 349, 352, 218 S.E.2d 534, 537 (1975). Witness credibility,
the weight accorded the testimony and the inferences to be drawn
from proven facts are matters to be determined by the fact
finder. See Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989). A trial court's judgment will not be
disturbed on appeal unless it is plainly wrong or without
evidence to support it. See Code § 8.01-680.
II. ANALYSIS
Code § 18.2-92 provides, in pertinent part:
If any person break and enter a dwelling
house while said dwelling is occupied,
either in the day or nighttime, with the
intent to commit any misdemeanor except
assault and battery or trespass, he shall be
guilty of a Class 6 felony.
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Council's indictment does not identify a particular misdemeanor
for which he entered Wiggins' apartment but simply states the
breaking and entering offense was committed "with the intent to
commit a misdemeanor other than larceny or trespass." 1 Council
asserts that the evidence failed to establish any intent to
commit a misdemeanor upon entry into the apartment. We
disagree.
"When an unlawful entry is made into a 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."
Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730,
732 (1995) (citing Tompkins v. Commonwealth, 212 Va. 460, 461,
184 S.E.2d 767, 768 (1971)). The state of mind of an accused
may be shown by his acts and conduct. Hargrave v. Commonwealth,
214 Va. 436, 437, 201 S.E.2d 597, 598 (1974); Johnson v.
Commonwealth, 209 Va. 291, 295, 163 S.E.2d 570, 574 (1968).
The Commonwealth argues that Council broke into and entered
the apartment with the intent to commit either indecent exposure
(Code § 18.2-387) or sexual battery (Code § 18.2-67.4). That
position is based on Council's zipper being down when he was
arrested outside the apartment and his discard of women's
1
Council did not challenge the vagueness/sufficiency of the
indictment at trial or on appeal. Neither did Council ask for a
bill of particulars to identify the misdemeanor.
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underwear while attempting to flee. However, no evidence
directly connects those facts to any conduct inside the
apartment or his intent when he entered.
Council argues that there is insufficient evidence to
establish a criminal intent other than the actual act of
breaking and entering, citing Taylor v. Commonwealth, 207 Va.
326, 150 S.E.2d 135 (1966), and Dixon v. Commonwealth, 197 Va.
380, 89 S.E.2d 344 (1955). Both cases, though, are
distinguishable from the case at bar. Neither defendant was
charged under the statute applied in this case. Further, those
defendants were not found to have forcibly entered the premises
or to have intended to commit an offense after entering, as was
charged. In Dixon, the Supreme Court of Virginia held the
evidence of intent "was based upon mere surmise and
speculation." Id. at 382, 89 S.E.2d at 345. Therefore, the
defendant's conviction was unsupported by the facts and
reversed.
It is not necessary, however, to determine if Council's
intent was to commit a sexual offense in order to affirm the
conviction under Code § 18.2-92. The Commonwealth's evidence
established that Council entered the apartment with other
criminal intent, which is sufficient under the statute.
Upon being confronted in the apartment, Council identified
himself as a police officer, in violation of Code § 18.2-174.
This deliberate act is direct evidence of a criminal intent for
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breaking into the home of people he did not know to impersonate
a police officer if detected.
The Commonwealth is not required to prove one criminal
intent was predominate over another or that one was exclusive of
the other.
A person may commit a crime with more than
one purpose, and the fact that the act is
done with two or more specific objectives
does not mean that the Commonwealth has
failed to prove the specific intent to
commit the charged crime. Thus, when the
Commonwealth proves beyond a reasonable
doubt that an accused has committed a
criminal act with both a primary and a
secondary purpose in mind, both or either of
which purposes are criminal, the
Commonwealth has met its burden of proving
the element of specific intent.
Hughes v. Commonwealth, 18 Va. App. 510, 530-31, 446 S.E.2d 451,
463 (1994) (en banc) (Coleman, J., concurring).
It is well settled that "[t]he credibility of witnesses,
the weight accorded 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). The judgment of a trial court will be
disturbed on appeal only if plainly wrong or unsupported by the
evidence. See Code § 8.01-680. The trial court was in a
position to evaluate the credibility of witnesses, and its
decision to reject Council's testimony is amply supported by the
record. See Cherrix v. Commonwealth, 257 Va. 292, 301-02, 513
S.E.2d 642, 649 (1999); see also Montgomery v. Commonwealth, 221
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Va. 188, 190, 269 S.E.2d 352, 353 (1980) (per curiam) ("[E]ven
if the defendant's story was not inherently incredible, the
trier of fact need not have believed the explanation.").
Council's presence in the apartment, the forceful breaking
and entering, his statements to Wiggins, and flight are
consistent with the trial court's finding that he possessed a
guilty intent upon entry into the home to commit one or more
misdemeanors. There was direct evidence from which the trial
court could reasonably conclude Council's intent included
impersonation of a police officer. Accordingly, we cannot say
that the trial court's finding that Council possessed the
necessary intent to commit a misdemeanor was clearly wrong.
For the foregoing reasons, we hold that the evidence is
sufficient to support Council's conviction, and the judgment of
the trial court is, therefore, affirmed.
Affirmed.
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Michael Jasper Council v. CW and City of Lynchburg
Combined Opinion