COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Overton 

Argued at Richmond, Virginia 

CORBET L. BANKS, S/K/A 

 CORBETT BANKS 

 MEMORANDUM OPINION* BY 

v. Record No. 2640-95-2 JUDGE JAMES W. BENTON, JR. 

 JANUARY 7, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

Buford M. Parsons, Judge 

 Stephen T. Harper (Bradford F. Johnson; 

Johnson & Walker, P.C., on brief), for 

appellant. 

 Monica S. McElyea, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Corbett Banks appeals from his convictions for attempted 

breaking and entering with the intent to commit assault and 

battery while armed, see Code §§ 18.2-26 and 18.2-91, and for use 

of a firearm in the commission of the felony. See Code 

§ 18.2-53.1. He contends that the evidence was insufficient to 

prove the offenses beyond a reasonable doubt and that his 

sentence of twenty years for the attempted statutory burglary 

offense exceeded the allowable range. For the reasons that 

follow, we uphold the convictions and remand for resentencing. 

 I. 

 When the evidence is viewed in the light most favorable to 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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the Commonwealth, see Higginbotham v. Commonwealth, 216 Va. 349, 

352, 218 S.E.2d 534, 537 (1975), the evidence proved that Mario 

Peagram and several of his friends fought with Corbett Banks' 

brother. The next day, Banks and his brother approached Rodney 

Daniel and Joyce Mosley at Mosley's apartment and asked if they 

had seen Peagram. Banks told Daniel that Peagram had beaten his 

brother and that something bad would happen to Peagram. 

 Later, when Peagram got off the school bus, he saw Banks and 

his brother in the parking lot approximately fifty feet away. He 

also noticed that Banks and his brother both had guns that were 

visible. Peagram ran to a place where he had hidden a gun. 

Peagram retrieved the gun and put it in his waistband. 

 Shortly after Peagram armed himself, he saw Banks and his 

brother approaching him from approximately thirty to forty feet. 

 When Banks displayed his gun, Peagram ran into Mosley's 

apartment. Daniel, who was standing outside Mosely's apartment, 

saw Peagram run into the apartment and observed Banks approaching 

with a gun. Daniel then gathered children into the apartment and 

closed the door. Banks ran to the closed door and kicked it 

eight or nine times while yelling, "Let me in, let me in, open 

the door." Mosley called the police. After Daniel yelled two or 

three times to Banks that they had called the police, Banks ran 

away. 

 II. 

 If any person in the daytime breaks and enters a dwelling 
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house with the intent to commit assault and battery, that person 

shall be guilty of statutory burglary. See Code §§ 18.2-90, 

18.2-91. "[I]f the person was armed with a deadly weapon at the 

time of such entry, [that person] shall be guilty of a Class 2 

felony." Code § 18.2-91. "An attempt . . . is an unfinished 

crime . . . composed of . . . the intent to commit the crime and 

the doing of some direct act toward its consummation, but falling 

short of the accomplishment of the ultimate design." Johnson v. 

Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 573 (1968). 

"Intent . . . may . . . be inferred from the surrounding facts 

and circumstances." Ridley v. Commonwealth, 219 Va. 834, 836, 

252 S.E.2d 313, 314 (1979). 

 The record contains sufficient evidence to prove beyond a 

reasonable doubt that Banks attempted to break and enter the 

residence. Although Banks testified that he did not kick the 

door with the intent to enter the apartment, the trier of fact 

was not required to believe his testimony. See Stegall v. 

Commonwealth, 208 Va. 719, 722, 160 S.E.2d 566, 568 (1968). The 

trier of fact is the judge of the credibility of witnesses, see

Barker v. Commonwealth, 230 Va. 370, 373, 337 S.E.2d 729, 732 

(1985), and thus, "is not required to accept, in toto," the 

testimony of any witness. Belton v. Commonwealth, 200 Va. 5, 9, 

104 S.E.2d 1, 4 (1958). 

 The evidence proved that Banks displayed his gun when he 

chased Peagram into the apartment. Banks kicked the door during 
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the pursuit. Moreover, Banks stated to a police officer that 

when he hit the door, he was trying to get into the apartment. 

Banks' conduct and his statement were sufficient to prove beyond 

a reasonable doubt that he kicked the door in an attempt to 

enter. 

 In addition, the evidence was sufficient to prove beyond a 

reasonable doubt that Banks was armed and intended to commit 

assault and battery upon Peagram. The evidence proved that Banks 

was armed when Peagram got off of the bus. He then pursued 

Peagram. The evidence further proved that Banks had earlier 

threatened to harm Peagram. From this evidence, the trier of 

fact could have inferred beyond a reasonable doubt that when 

Banks chased Peagram he did so with the intent to commit assault 

and battery. Thus, the evidence was sufficient to prove each 

element of the offense beyond a reasonable doubt. 

 III. 

 The criminal offense of attempted breaking and entering with 

the intent to commit assault and battery while armed with a 

deadly weapon is punishable as a Class 4 felony. Code §§ 18.2-91 

and 18.2-26. The authorized punishment "[f]or Class 4 felonies 

. . . [is] a term of imprisonment of not less than two years nor 

more than ten years and . . . a fine of not more than $100,000." 

 Code § 18.2-10(d). The trial judge sentenced Banks to twenty 

years in prison with twenty years suspended. 

 The Commonwealth agrees that the trial judge erred in 
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sentencing Banks. "Because we cannot summarily reduce [Banks'] 

sentence, we remand the case to the trial court for 
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resentencing." Bell v. Commonwealth, 11 Va. App. 530, 534, 399 

S.E.2d 450, 453 (1991). 

 Affirmed in part, reversed

in part, and remanded.