Christopher Eugene Moore v. Commonwealth of VA ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Bray
Argued at Chesapeake, Virginia
CHRISTOPHER EUGENE MOORE
MEMORANDUM OPINION * BY
v. Record No. 0915-99-1 JUDGE RICHARD S. BRAY
FEBRUARY 29, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert W. Curran, Judge
Mark A. Stallings (Glasser and Glasser,
P.L.C., on brief), for appellant.
Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Christopher Eugene Moore (defendant) was convicted in a bench
trial of burglary "with intent to commit assault and battery," a
violation of Code § 18.2-91. On appeal, defendant challenges the
sufficiency of the evidence to prove the requisite intent.
Finding no error, we affirm the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
In reviewing the sufficiency of the evidence, we consider the
record "'in the light most favorable to the Commonwealth, giving
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
it all reasonable inferences fairly deducible therefrom. In so
doing, we must discard the evidence of the accused in conflict
with that of the Commonwealth, and regard as true all the credible
evidence favorable to the Commonwealth . . . .'" Watkins v.
Commonwealth, 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998)
(citation omitted). The credibility of the witnesses, the weight
accorded testimony, and the inferences drawn from the 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).
The judgment of the trial court will not be disturbed unless
plainly wrong or unsupported by evidence. See Code § 8.01-680.
Viewed accordingly, the record discloses that, at
approximately 5:50 a.m. on September 25, 1998, defendant "knocked"
at the apartment window of his estranged wife, Agnes James, and
"asked [her] to open the door." James thought defendant "did not
know where [she] was living," and he was not welcome.
Nonetheless, James opened a door, which accessed the hallway of
the apartment building, but "told [defendant] that he would have
to talk . . . [there] 'cause [her] children [were] in [the
apartment]." Defendant immediately began "talking" to James and
"asking [her] questions." When she "didn’t respond the way he
wanted" or "tried to go back" into her apartment, defendant would
"grab [her] under her breast and . . . shove [her] up against the
wall." On "several" occasions, he "grabbed [James] around the
neck and choked" her. When defendant momentarily left the
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building to advise someone waiting for him that he would "be out
in a minute," James quickly re-entered her apartment, locked and
"put the chain on the door."
Defendant soon returned, however, knocked and repeatedly
demanded that James "open the door." When she refused, defendant
began to "push on the door" and, "finally," despite James'
resistance "against the door," "broke [it] open with force," "just
busted the door open." Upon entry, defendant was confronted by
James' nine-year-old son, armed with a "stick" in an effort to
protect her. Defendant took the stick from the child, assuring
him, "I'm not gonna hurt your mother." A day-care van then
arrived for James' children, and she escorted them to the vehicle,
with defendant "right there behind [her]." As her daughter
stepped inside, James "whispered in her ear . . . to call 9-1-1."
Defendant returned to the apartment with James and resumed
"pushing" her, "calling [her] names," attempting to kiss and
otherwise "badger" her. "Finally," he angrily declared, "Forget
you," and left.
James' evidence included a letter to her from defendant, then
in jail as a result of the incident. Defendant wrote that he was
"ashamed" and "sorry" for his "bad actions" and expressed "awful"
feelings "because [he] hurt, . . . disappointed, . . . and let
[James] down." He urged her to drop "these charges" and pledged,
"I will never put my hands on you to hurt you again." Later, at
trial, defendant admitted that he "grabbed [James] on her torso so
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she would just hear what I had to say," to talk and "work out our
problems."
To convict defendant of the instant offense, the Commonwealth
was required to prove that he broke and entered James' apartment
"with intent to commit assault and battery." See Code § 18.2-91.
Defendant does not dispute the unlawful entry but contends that
the evidence failed to establish the necessary intent.
"[W]hen an unlawful entry is made into a dwelling, the
presumption is that the entry was made for an unlawful purpose."
Tompkins v. Commonwealth, 212 Va. 460, 461, 184 S.E.2d 767, 768
(1971). "The specific purpose, meaning specific intent, with
which such an entry is made may be inferred from the surrounding
facts and circumstances." Scott v. Commonwealth, 228 Va. 519,
524, 323 S.E.2d 572, 575 (1984). "Because direct proof of intent
is often impossible, it must be shown by circumstantial evidence."
Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988). "Circumstantial evidence is as competent and is entitled
to as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983).
Here, defendant's conduct both before and after he "busted
open" the apartment door clearly manifested a continuing intent to
assault James. During the initial encounter in the hallway, he
repeatedly pushed, grabbed, shoved, and choked her, bruising her
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body and injuring her breasts. Later, when denied entry to the
locked apartment, he "broke the door open with force," an act
attended by such violence that James' son intervened to protect
his mother, and James asked her daughter to dial 911 for
assistance. Once inside, defendant again pushed, "slapped" and
otherwise abused James, both verbally and physically. In
subsequent correspondence to James, defendant expressed remorse
and contrition and urged James to "drop the charges," statements
reflective of a consciousness of guilt for conduct which he
described as "bad actions."
The record, therefore, provides compelling evidence of
defendant's intent to assault and batter James from the inception
of the confrontation in the hallway, a mindset that accompanied
the unlawful entry into her apartment and ended only when
defendant left the premises in anger and frustration.
Accordingly, we find the evidence sufficient to support the
conviction and affirm the decision of the trial court.
Affirmed.
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