Robertson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Annunziata and Bumgardner
Argued at Salem, Virginia

GARY EUGENE ROBERTSON
OPINION BY
v. Record No. 0761-99-3 JUDGE SAM W. COLEMAN III
MARCH 14, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Robert P. Doherty, Jr., Judge

S. Jane Chittom, Appellate Counsel (Elwood
Earl Sanders, Jr.; Public Defender
Commission, on briefs), for appellant.

(Mark L. Earley, Attorney General; John H.
McLees, Jr., Assistant Attorney General, on
brief), for appellee. Appellee submitting on
brief.

Gary Eugene Robertson was convicted in a bench trial of

statutory burglary in violation of Code § 18.2-91, malicious

wounding in violation of Code § 18.2-51, and aggravated malicious

wounding in violation of Code § 18.2-51.2. On appeal, Robertson

argues the evidence is insufficient to support his convictions.

We disagree and affirm the convictions.

BACKGROUND

Viewed in the light most favorable to the Commonwealth, the

evidence established that on June 21, 1998, at approximately

5:00 a.m., Robertson entered the home of Mary Jane Jackson. Soon

after entering, Robertson proceeded to the second floor of the
residence and entered Jackson's bedroom. Jackson and a male

companion, Silvio Thomasson, were asleep in bed. Robertson

dragged Thomasson out of bed and onto the floor, hitting Thomasson

with an object about the head and neck. Jackson was awakened by

the commotion. She screamed for her children, who were

downstairs, to call the police. Robertson accused Jackson of

having an intimate relationship with Thomasson while Robertson and

Jackson were dating. Robertson then picked up a bottle and threw

it at Jackson, hitting her in the eye. The bottle shattered and

glass was embedded in Jackson's eye. Jackson's eye had to be

surgically removed.

According to the police officer who was called to the scene,

there were no signs of forced entry to the residence. However,

when Jackson returned home from the hospital, approximately a week

after the incident, she noticed that the back door had been

"kicked in."

Prior to the incident, Jackson and Robertson had dated for

nearly five and one-half years. During part of that time,

Robertson lived with Jackson in her home. Jackson testified that

she did not give Robertson a key to the residence, but she stated

that Robertson may have taken one of her children's keys. Jackson

testified that she ended the relationship with Robertson three

weeks before the incident. After ending the relationship, but

before the incident, Jackson visited Robertson at a rehabilitation

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center where he was living. At the time Jackson ended the

relationship, she told Robertson he was not welcome in her home.

Robertson testified that the evening before the incident, he

and Jackson had gone out to dinner and had sex in Jackson's car.

Robertson denied that their relationship had ended three weeks

earlier. According to Robertson, the couple agreed that Robertson

would not stay at Jackson's home for a couple of days and agreed

to give each other "some space." Robertson said Jackson had given

him a key to her home and he was never told he was unwelcome. He

stated that on the morning of the incident, he awoke at

approximately 3:30 or 4:00 a.m. and walked to Jackson's home

several blocks away to "talk" about their relationship. He

testified that he let himself in with his key, made himself a

sandwich, and proceeded upstairs to Jackson's bedroom. Robertson

stated that he observed Jackson having sex with Thomasson and

became enraged. Robertson admitted he beat Thomasson, but he was

unable to remember the rest of the incident. Sometime in the week

following the incident, Robertson telephoned Jackson and left a

message on her answering machine, apologizing for what he had done

to her.

ANALYSIS

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

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inferences fairly deducible therefrom. See Commonwealth v.

Jenkins, 255 Va. 516, 521, 499 S.E.2d 263, 265 (1998). "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).

A. Statutory Burglary

Intent may be shown by the circumstances, including a

person's conduct and statements. See Nobles v. Commonwealth, 218

Va. 548, 551, 238 S.E.2d 808, 810 (1977); Hancock v. Commonwealth,

12 Va. App. 774, 782, 407 S.E.2d 301, 306 (1991). "[T]he

reasonable inferences to be drawn from proven facts are within the

province of the trier of fact." Fleming v. Commonwealth, 13 Va.

App. 349, 353, 412 S.E.2d 180, 183 (1991). "The fact finder may

infer that a person intends the immediate, direct, and necessary

consequences of his voluntary acts." See Bell v. Commonwealth, 11

Va. App. 530, 533, 399 S.E.2d 450, 452 (1991).

Robertson argues the evidence failed to prove that when he

entered the residence he did so with the intent to commit

malicious wounding. He also argues the evidence was insufficient

to support his conviction because the Commonwealth failed to

prove, and the evidence fails to support, that he broke into the

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residence or entered the residence in the nighttime. He further

maintains he entered the residence under a claim of right.

To sustain a conviction for statutory burglary under Code

§ 18.2-91, the Commonwealth must prove: (1) the accused entered a

dwelling house in the nighttime without breaking or broke and

entered the dwelling house in the daytime; and (2) the accused

entered with the intent to commit any felony other than murder,

rape, robbery or arson. See Code §§ 18.2-90, 18.2-91.

Here, by Robertson's admission, he entered Jackson's

residence at approximately 5:00 a.m. He argues he did not break

and enter the residence because he had a key to the residence

and believed he had the right to enter the residence because he

recently cohabited there with Jackson.

As Robertson notes, the Commonwealth failed to prove that

Robertson's entry at 5:00 a.m. occurred in the day or evening.

See Ryan v. Commonwealth, 219 Va. 439, 247 S.E.2d 698 (1978).

Assuming Robertson entered the residence during the day with a

key, as he contends, his entry was an unlawful breaking under

Code § 18.2-91 because Robertson used force to effect the entry

and was not authorized to enter the dwelling house.

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. . . . But a breaking,
either actual or constructive, to support a

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 conviction of burglary, must have resulted
in an entrance contrary to the will of the
occupier of the house.

Davis v. Commonwealth, 132 Va. 521, 523, 110 S.E. 356, 357

(1922) (emphasis added).

Jackson testified that Robertson no longer lived with her and

told Robertson he was not welcome in her home. She stated that

she never gave Robertson a key and that, if Robertson had a key,

he acquired it without her permission or knowledge. Jackson

testified that she secured all of the doors and windows before

going to bed that evening. The trial court acted within its

purview as fact finder in accepting Jackson's testimony and

rejecting Robertson's testimony. "The weight which should be

given to evidence and whether the testimony of a witness is

credible are questions which the fact finder must decide."

Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,

601 (1986). Assuming Robertson used a key to unlock the door and

gain access to the residence, his actions, nonetheless, constitute

a breaking. See Johnson v. Commonwealth, 15 Va. App. 73, 76, 422

S.E.2d 593, 594-95 (1992) (finding evidence sufficient to support

conviction for statutory burglary where defendant used pass key to

obtain entry into victims' apartments). By Robertson's admission,

he entered the residence through the closed front door; he

necessarily used force, however slight, to enter the residence.

See Phoung v. Commonwealth, 15 Va. App. 457, 460-61, 424 S.E.2d

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712, 714 (1992) (finding slight force used to open door already

partially open sufficient to constitute breaking).

In a prosecution for statutory burglary under Code § 18.2-91,

proof that the accused unlawfully entered another's dwelling

supports an inference that the entry was made for an unlawful

purpose. See Black v. Commonwealth, 222 Va. 838, 840, 284 S.E.2d

608, 609 (1981). The specific intent with which the unlawful

entry is made may be inferred from the surrounding facts and

circumstances. See Scott v. Commonwealth, 228 Va. 519, 524, 323

S.E.2d 572, 575 (1984).

Here, the evidence proved that Jackson had ended her

relationship with Robertson just weeks before the incident. The

evidence also proved that Robertson entered the residence without

Jackson's permission during the early morning hours, and, once

inside, he severely injured Jackson and Thomasson. Robertson

accused Jackson of infidelity with Thomasson at the scene and days

later when he left a message on her answering machine. On the

answering machine tape, Robertson stated he was not sorry for what

he had done to Thomasson; he also said he knew Jackson had been

unfaithful to him. Based on Robertson's actions and statements

during and after the incident, the fact finder could reasonably

conclude that Robertson broke and entered Jackson's residence with

the intent to assault Jackson and Thomasson.

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 B. Malicious Wounding

Robertson also contends the evidence was insufficient to

prove he acted with malice in wounding Thomasson. Robertson

contends the evidence only proved he acted in the "heat of

passion" when he discovered Jackson's infidelity.

To support a conviction for malicious wounding under Code

§ 18.2-51, the Commonwealth must prove that the defendant

inflicted the victim's injuries "maliciously and with the intent

to maim, disfigure, disable or kill." Campbell v. Commonwealth,

12 Va. App. 476, 483, 405 S.E.2d 1, 4 (1991) (en banc). "'Malice

inheres in the doing of a wrongful act intentionally, or without

just cause or excuse, or as a result of ill will. It may be

directly evidenced by words, or inferred from acts and conduct

which necessarily result in injury.'" Hernandez v. Commonwealth,

15 Va. App. 626, 631, 426 S.E.2d 137, 140 (1993) (citations

omitted). "Malice is evidenced either when the accused acted with

a sedate, deliberate mind, and formed design, or committed a

purposeful and cruel act without any or without great

provocation." Branch v. Commonwealth, 14 Va. App. 836, 841, 419

S.E.2d 422, 426 (1992). Whether malice existed is a question for

the fact finder. See id. "Malice and heat of passion are

mutually exclusive; malice excludes passion, and passion

presupposes the absence of malice." Barrett v. Commonwealth, 231

Va. 102, 106, 341 S.E.2d 190, 192 (1986). "In order to determine

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whether the accused acted in the heat of passion, it is necessary

to consider the nature and degree of provocation as well as the

manner in which it was resisted." Miller v. Commonwealth, 5 Va.

App. 22, 25, 359 S.E.2d 841, 842 (1987).

Proof of Robertson's unlawful entry of Jackson's residence in

the early morning hours after he was informed that he was

unwelcome in her home supports an inference that Robertson acted

with a formed design. Moreover, because the entry was both

unlawful and planned, it supports an inference that the assault

which was perpetrated on both Jackson and Thomasson was

purposeful. The fact finder was not required to accept

Robertson's contention that he acted in the heat of passion after

finding Jackson engaged in sexual intercourse with Thomasson. See

Rollston v. Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823,

830 (1991). We are aware of no case allowing an aggressor to

assert a claim of heat of passion for assaulting someone engaged

in a sexual encounter with a former girlfriend or someone other

than a spouse. Cf. Belton v. Commonwealth, 200 Va. 5, 104 S.E.2d

1 (1958) (noting that defendant's knowledge of spouse's infidelity

may constitute adequate provocation to negate a finding of

malice); Hannah v. Commonwealth, 153 Va. 863, 149 S.E. 419 (1929)

(same). Accordingly, we find the evidence sufficient to support

the finding that Robertson acted with malice.

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 C. Aggravated Malicious Wounding

Finally, Robertson argues the Commonwealth failed to prove he

acted maliciously when he threw the bottle at Jackson. He again

asserts that he acted in the heat of passion.

Code § 18.2-51.2 provides:

[i]f any person maliciously shoots, stabs,
cuts or wounds any other person, or by any
means causes bodily injury, with the intent
to maim, disfigure, disable or kill, he
shall be guilty of a Class 2 felony if the
victim is thereby severely injured and is
caused to suffer permanent and significant
physical impairment.

The Commonwealth had the burden of establishing, beyond a

reasonable doubt, that in striking Jackson with the bottle,

Robertson acted with malice. See Code § 18.2-51.2; Essex v.

Commonwealth, 228 Va. 273, 280, 322 S.E.2d 216, 220 (1984).

Here, the fact finder could reasonably have found from the

evidence that, in striking Jackson with the bottle, Robertson

acted with malice. The evidence showed that Robertson unlawfully

entered Jackson's residence and proceeded to her bedroom, where he

began his assault on Thomasson. After accusing Jackson of

infidelity, Robertson stood a short distance in front of Jackson

and threw the bottle toward her head. Again, no case or sound

reasoning supports a claim that an aggressor acts in the heat of

passion where the person engaged in sexual intercourse is not a

spouse but a former girlfriend. The fact finder could reasonably

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infer that Robertson acted with malice in striking Jackson with

the bottle.

Because the evidence was sufficient, we affirm Robertson's

convictions.

Affirmed.

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