COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton , Judges Clements and Beales Argued at Richmond, Virginia

JAMES LORENZO THOMAS MEMORANDUM OPINION * BY v. Record No. 1138-07-2 J UDGE RANDOLPH A. BEALES APRIL 8, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE Edward L. Hogshire, Judge Michael J. Hallahan, II, for appellant. Jennifer C. Williamson, Assist ant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
James Lorenzo Thomas (appellant) appeals from his conviction following a bench trial for breaking and entering with the intent to co mmit assault and battery in violation of Code § 18.2-91. 1 The sole issue in this appeal is whether or not the evidence is sufficient to sustain appellant’s conviction for breaki ng and entering with the intent to commit assault and battery. For the reasons that follow, we affirm.
I. B ACKGROUND “Applying well-established princi ples of appellate review, we must consider the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, [as] the prevailing party below.” Walker v. Commonwealth , 272 Va. 511, 513, 636 S.E.2d 476, 477 (2006). That standard requires us to “regard as true all the credible

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.

1 Appellant was also convicted of assault a nd battery in violation of Code § 18.2-57 and of vandalism in violation of Code § 18.2-137, but those convictions are not before us on appeal.- 2 - evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth , 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980). On the evening of August 25, 2005, appellant broke into an apartment occupied by A.M (the victim). A.M., appellant’s former girl friend, explained that she had terminated a relationship with appellant several months be fore the break-in. Based upon allegations of mistreatment and sexual assaul t after the relationship had e nded, A.M. had sworn numerous warrants against appellant and obt ained a protective order against him. A.M. claimed, however, that appellant had continued to harass her over the telephone. Approximately ten minutes before he broke in on the evening of August 25, appellant called A.M. and told her that he was coming over to her apartment. A.M. asked him not to come over, reminded him of the protectiv e order forbidding him to be ar ound her, and told him that she would call the police if he came ove r. Appellant again told A.M. that he was coming over, and, if she did not let him in, he was going to kick in the door. A.M. dialed 911 but did not complete the call, so that she could simply hit redial if appellant indeed came over. About ten minutes later, as A.M. sat in he r bedroom, she heard two loud noises. A.M. walked out into the hallway and saw appellant sta nding at the top of her stairs. A.M. tried to block appellant from entering her bedroom, but appellant forced her out of the way. While struggling with appellant, A.M. redialed 911 and told the operator that appellant was in her apartment. Appellant wrestled with A.M. for c ontrol of the phone and ultimately jerked it out of her hand, which cut her finger. Appellant procee ded into A.M.’s bedroom, saw that no one was in the bedroom, and told A.M. that she should have just let him in since no one was in the bedroom with her. Appellant then left. At 8:45 p.m., Officer Reginald Lockhart of the Charlottesville Police Department responded to a report of breaking and entering at A.M.’s apartment. When he entered the- 3 - apartment, Lockhart noticed the back door had been broken in and was lying halfway into the apartment. Lockhart encountered A.M., who was upset and had a cut on her finger. A.M. told Lockhart that appellant had broken into her apartment and knocked a telephone from her hand, which resulted in the cut to her finger. A.M. said that appellant did not live with her during their relationship. As she explained, appellant would occasionally spend the night with he r, but he kept his residence with his mother. A.M. stated that appellant did not keep any belongings at her apartment. Moreover, the terms of A.M.’s lease, which contained a Department of Housing and Urban Development (HUD) subsidy, stated that she and her children were to be the only legal residents of the apartment. A.M. recalled that appellant ha d on a prior occasion stolen a ke y to her apartment. A.M. regained possession of the key, but appellant stole it again and told her that he threw it over a fence. Appellant’s mother, however, recalled th at appellant stayed with A.M. during their relationship and only stayed with her when he and A.M. were fighting. One of appellant’s sisters testified that appellant and A.M. lived together but stated that appellant was living with their mother prior to the August 25 br eak-in. Appellant’s other sister said that she used to drop her brother off to stay with A.M. several nights a week. Given all of the aforementioned evidence, a ppellant conceded twi ce, during his renewed motion to strike, that he had no legal right to be in A.M.’s ap artment. Appellant’s counsel conceded that appellant “was not legally there,” pursuant to the terms of the lease. Appellant’s counsel then again, in responding to further qu estioning by the trial court, conceded that appellant “does not have a legal entitlement.” The trial court subsequently found appellant guilty of breaking and entering with the intent to commit assault and battery, assault and battery, and vandalism. In explaining its ruling, the trial co urt noted that it did not “think the evidence is- 4 - sufficient to show that [appellant] broke in with the intent to commit a battery per se.” Appellant never asked the trial court to explain or recons ider this statement. This appeal followed.
II. A NALYSIS When considering the sufficiency of the ev idence on appeal, “a reviewing court does not ‘ask itself whether it believes that the evidence at the tr ial established guilt beyond a reasonable doubt.’” Crowder v. Commonwealth , 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia , 443 U.S. 307, 318-19 (1979)). “Viewing the evidence in the light most favorable to the Commonwealth, as we must since it was the prevailing party in the trial court,” Riner v. Commonwealth , 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), “[w]e must instead ask whether ‘ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Crowder , 41 Va. App. at 663, 588 S.E.2d at 387 (quoting Kelly v. Commonwealth , 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003)). “This familiar standard gives full play to the responsibility of th e trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, an d to draw reasonable inferences from basic facts to ultimate facts.” Jackson , 443 U.S. at 319. Code § 18.2-91 states, in pertinent part, If any person commits any of the acts mentioned in § 18.2-90 with intent to commit larceny, or any felony other than murder, rape, robbery or arson in violati on of §§ 18.2-77, 18.2-79 or § 18.2-80, or if any person commits any of the acts mentioned in § 18.2-89 or § 18.2-90 with intent to commit a ssault and battery, he shall be guilty of statutory burglary. Appellant’s challenge to the sufficiency of the evid ence is twofold: 1) he contends the evidence does not sufficiently prove that he broke into and entered the dwelling house of another; and 2) he contends the evidence does not sufficiently pr ove that he broke into the apartment with the intent to commit an assault and a battery.- 5 - A. D WELLING HOUSE OF ANOTHER Code § 18.2-91 relies upon several other refere nced code sections to define the conduct it prohibits. Notably, Code § 18.2-91 references Code § 18.2-89, which “d efines traditional burglary (the breaking and entering of a dwellin g house of another in the nighttime with the intent to commit a felony or any larceny therein).” Johnson v. Commonwealth , 18 Va. App. 441, 445, 444 S.E.2d 559, 561-62 (1994). Appellant contends that because he stayed at A.M.’s apartment “on and off” during thei r relationship, the evidence does not prove that he broke into the dwelling house of another. In other words, a ppellant claims he had a le gal right to be there. The protective order that was in place at the time of the break-in forbade appellant from having any contact with A.M., mu ch less live with her. The relationship that had existed between appellant and the victim had ended befo re the break-in that is the subject of his conviction here. Appellant’s sist er stated that appella nt was living with their mother prior to August 25, 2005. 2 Furthermore, the victim told appellant , when he called her, not to come over and that, if he did, she would call the police, which she promptly did. Based upon these facts, appellant’s trial counsel , in response to questions from the trial court, quite appropriately conceded that “he wa s not legally there” and, furthermore, did “not have a legal entitlement” to be present in A. M.’s apartment. Appellant, though, now argues on brief that he had somehow executed “an implied sub-lease,” which gave him a legal right to be in the apartment. In so doing, appell ant presents an argument on appeal that is inconsistent with the concession that he made to the trial court. “A party may not approbate and reprobate by taking successive positions in the course of litigation th at are either inconsistent with each other or mutually contradictory.” Cangiano v. LSH Bldg. Co. , 271 Va. 171, 181, 623 S.E.2d 889, 895

2 Testimony from appellant’s other sister sugge sts that he was not living with A.M. but instead had earlier just been spending the night there a few times a week.- 6 - (2006). See also Powell v. Commonwealth , 267 Va. 107, 144, 590 S.E.2d 537, 560 (2004). Accordingly, given the two concessions appell ant made to the trial court and the underlying evidence demonstrating that he ha d no legal right of occupancy in A.M.’s apartment, we hold the trial court did not err in finding appellant broke into the dwelling house of another.
B. I NTENT TO COMMIT ASSAULT AND BATTERY Appellant argues on appeal that the evidence wa s not sufficient to prove he broke in with the intent to commit assault and battery. He contends the trial court found only that he broke in with the intent to commit an assault, not an a ssault and battery. At trial, however, appellant argued only that the evidence faile d to prove “that there was a br eaking and entering with intent to commit assault.” When the trial court found that he did break into the dwelling with the intent to commit assault, appellant did not object that the trial court mu st find under the indictment that he broke in with the intent to commit an assault and battery, 3 not a simple assault. However, regardless of the trial judge’s ve rbal statements and ruminations, “[a] court speaks only through its orders,” Cunningham v. Smith , 205 Va. 205, 208, 135 S.E.2d 770, 773 (1964), and the trial court’s conviction/sentencing order found appellant guilty of br eaking and entering under Code § 18.2-91, which, given the facts of this case a nd the language of the indictment, required a finding of breaking and entering with the intent to commit assault and batte ry. Because appellant never requested further review of this issue unti l filing his petition in th is appeal, as counsel admitted at oral argument, appellant is now precluded from making this argument for the first time on appeal. Rule 5A:18. “The Court of Appeals will not consider an argument on appeal which was not presented to the trial court.” Ohree v. Commonwealth , 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998).

3 Appellant was convicted of assault and batter y and is not challengi ng that conviction in this Court.- 7 - See also Andrews v. Commonwealth , 37 Va. App. 479, 493, 559 S.E.2d 401, 408 (2002) (“The purpose of the rule is to ensure that the trial court and opposing pa rty are given the opportunity to intelligently address, examine, and resolve issues in the trial court, thus avoiding unnecessary appeals.”). “Although Rule 5A:18 allows excepti ons for good cause or to meet the ends of justice, appellant does not argue that we should invoke these exceptions.” Edwards v. Commonwealth , 41 Va. App. 752, 761, 589 S.E.2d 444, 448 (2003) ( en banc )

. “This Court will not consider, sua sponte , an ends-of-justice argument under Rule 5A:18.” Widdifield v. Commonwealth , 43 Va. App. 559, 564, 600 S.E.2d 159, 162 (2004) ( en banc ).
III. C ONCLUSION For the foregoing reasons , we affirm the judgment of the trial court. Affirmed.