COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Petty and Beales Argued by teleconference

JAMAL RYAN SUMNER MEMORANDUM OPINION  BY v. Record No . 0520-16-2 JUDGE W ILLIAM G. PETTY MAY 23, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Beverly W. Snukals, Judge Jennifer M. Newman (Nancy M. Newman; Jennifer M. Newman, Esq., P.C., on brief), for appellant. Benjamin H. Katz, Assistant A ttorney General (Mark R. Herring , Attorney General, on brief), for appellee.
Jamal Ryan Sumner argues on appe al that the tria l court erred in convicting him of breaking and entering i n violation of Code § 18.2-91 1 because there was insufficient evidence to prove the elements of the crime. Because we find sufficient ev idence to support each element of the crime, we affirm the trial court’s decision.
B ACKGROUND Because the parties are fully c onversant with the record in th is case and this memorandum opinion carries no preced ential value, we recite bel ow only those facts and

 Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Additionally, Sumner was found gu ilty of aggravated malicious wounding in violation of Code § 18.2-51.2(A), assault a nd battery in violation of Cod e § 18.2-57, use of a firearm in the commission of a felony i n violation of Code § 18.2-53.1, an d shooting into an occupied dwelling in violation of Code § 18.2-279. Sumner did not chall enge his conviction for assault and battery, and this Court deni ed his petition for appeal of t he other convictions.UNPUBLISHED- 2 - incidents of the proceedings as are necessary to the parties’ u nderstanding of the disposition of this appeal. “As an appellate court, ‘[w]e m ay not “substitute our judgment for that of the trier of fact,” nor may we “reweigh the evi dence,” because we have no au thority “to preside de novo over a second trial.”’” Jones v. Commonwealth, 65 Va. App. 274, 279, 777 S.E.2d 229, 231 (2015) (alteration in original) (quoting Ervin v. Commonwealth, 57 Va. App. 495, 503, 704 S.E.2d 135, 138-39 (2011)). Accordi ngly, the facts on appeal a re not “in dispute.” Rather, “[u]nder well-settled principles of appellate review, we consid er the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing pa rty in the circuit court.” Porter v. Commonwealth, 276 Va. 203, 215-16, 661 S.E.2d 415, 419 (2008 ). “Viewing the record through this evidentiary prism re quires [the Court] to ‘discard the evidence of the accused in conflict with that of the C ommonwealth . . . .’” Bryant v. Com monwealth, 67 Va. App. 569, 579, 798 S.E.2d 459, ___ (2017) (quoting C ooper v. Commonwealth , 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009)). Sumner contacted K.T., his ex-g irlfriend and the mother of his child, by text message. He then went to K.T.’s home. A t the time, K.T. had a male hous eguest and a female houseguest. Sumner pushed his way into the home, and the male houseguest pu shed him back outside. While Sumner was outside, he fired sev eral shots through the door, hi tting the female houseguest. Sumner then reentered the house and battered the male housegues t, who was lying on the floor.
A

NALYSIS Code § 18.2-91 provides in pertinen t part, “If any person comm its any of the acts mentioned in Code § 18.2-90 . . . with int ent to commit assaultand battery, he shall be guilty of statutory burglary . . . .” C ode § 18.2-90 provides that a per son “shall be deemed guilty of statutory burglary” when that “per son in the nighttime enters w ithout breaking . . . or at any time- 3 - breaks and enters” a dwelling. Sum ner argues the trial court e rred in finding the evidence sufficient to support his convict ion of statutory burglary beca use the Commonwealth did not
prove: (1 ) That Sumner committed a breaki ng into the apartment; (2) That Sumner entered the apartment c ontrary to the will of [K.T.]; (3) that Sumner entered the apar tment with the specific intent to commit a felony or assault and batte ry at the time he entered t he home; (4) and that Sumner committed an overt act towards completing a felony or a ssault and battery. “When considering the sufficiency of the evidence, we will onl y reverse when the trial court’s judgment was plainly w rong or without evidence to suppo rt it.” Brittle v. Commonwealth, 54 Va. App. 505, 511, 680 S.E.2d 335, 338 (2009). Further, a fact finder’s resolution of conflicting facts, a s well as competing inference s, receives “the hi ghest degree of appellate deference.” Tho mas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006); Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E .2d 730, 732 (1995) (“The credibility of the witnesses a nd the weight accorded the eviden ce are matters solely for the fact finder who has the opportunity t o see and hear that evidence as it is presented.”). 2
I. S UMNER C OMMITTED A B REAKING Sumner first argues that the C ommonwealth failed to show there had been a “breaking.” 3 To establish a breaking for t he purposes of burglary, the Commonwealth need only “show the application of some force, slight though it may be, whereby t he entrance is [achieved].

2 We note that the witnesses ga ve conflicting versions of the re levant events. The trial court made a factual finding t hat even though there were some c onflicts in the testimony of the Commonwealth’s witnesses, the Co mmonwealth’s witnesses were mor e credible regarding the sequence of events than t he defendant’s witnesses.

3 It is clear from the record tha t the burglary o ccurred in the nighttime. In such a case, Code § 18.2-91 only requires proof of an entry into the dwellin g with the requisite intent. However, for some reason, not appare nt from the record, the Com monwealth chose to indict Sumner for “breaking and entering” the dwelling. Accord ingly, we will assume for purpo ses of this opinion that proof of a br eaking was required to support a conviction.- 4 - Merely pushing open a door . . . is sufficient to constitute th is element of [burglary], so long a s those acts resulted in an ent rance contrary to the will of the o ccupier of the [property].” Beck v. Commonwealth, 66 Va. App. 259, 269, 784 S.E.2d 310, 315 (2016) (quoting Finne y v. Commonwealth, 277 Va. 83, 88, 671 S.E.2d 169, 172 (2009) (alter ations in original)). Here, testimony from the houseguests and K.T. showed Sumner di d break and enter the dwelling. After Sumner had bee n pushed out of the house by the male houseguest, the door was partially closed behind him. Sumner fired several shots through the door into the dwelling. He then reentered the home through t he partially closed door to at tack the male houseguest. 4 The evidence supports the trial court’ s finding that Sumner committ ed a breaking when he entered through the partiall y closed front door.
II. S UMNER D ID N OT H AVE K.T.’ S C ONSENT TO E NTER Sumner argues that the Commonw ealth did not prove he entered t he dwelling without K.T.’s consent. “‘The presence of consent is a factual questio n to be determined by the trier of fact’ based on the totality of t he circumstances, and we revers e a trial court’s decision regarding the presence of consent only whe n it is plainly wrong.” Hawkin s v. Commonwealth, 65 Va. App. 101, 107, 774 S.E.2d 492, 495 (2015) (quoting Jean-Lau rent v. Commonwealth, 34 Va. App. 74, 79, 538 S.E.2d 316, 318 (2000)). Here, although Sumner argues th at K.T. gave consent for him to enter the dwelling when he first arrived, he doe s not argue from the evidence that K.T. gave him consent to enter the home the second time, after he had fired into the dwelling. Th e door was at least partially closed when Sumner fired several sho ts through the door. Sumner did n ot produce evidence that K.T. gave consent for his reentry int o the home. On the contrary, K .T., who was called as a defense

4 Although no one actually testifie d that Sumner pushed the door open to reenter, that he must have done so is a fair infer ence the trial court could dra w from the testimony that the door was not completely shut because a shoe was in the way and that Sumner fired through the door.- 5 - witness, testified during cross- examination that she and the fe male houseguest were trying to close the door after the male houseguest pushed Sumner outside. K.T. testified that she struggled to get the door closed because a shoe was caught in the doorway , preventing her from closing the door all the way. Accordingly, t he court did not err in reject ing Sumner’s argument that K.T. gave Sumner consent to re-enter her home.
III. S UMNER INTENDED TO CO MMIT ASSAULT AND BATTERY Sumner next argues that the C ommonwealth failed to show that h e entered the dwelling with the intent to commit assa ult and battery. “Whether the re quired intent exists is generally a question of fact for the trier of fact.” Becker v. Commonwealt h, 64 Va. App. 481, 491, 769 S.E.2d 683, 688 (2015) (quoting Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977)). “Intent in fact is the purpose formed in a person ’s mind and may be, and frequently is, shown by circumstances.” I d. (quoting Abdo v. Commonwealth , 64 Va. App. 468, 475, 769 S.E.2d 677, 680 (2015)). “When an unlawful entry is made into a dwelling of another, the presumption is that the entry w as 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, 20 Va. App. at 138, 455 S.E.2d at 732. Here, Sumner again focuses his argument on his first entry int o the home. Regardless of whether there was the requisite intent shown for Sumner’s first entry into the home, the evidence was sufficient to show his inten t to commit a ssault and battery during his second entry. Sumner entered the home after firi ng shots through the door and immedi ately used his pistol to beat the male houseguest, who was curled de fensively on the floor. The testimony here establishes that Sumner committed the batter y and fled, not even stopping to ten d to the wounded and bleeding female houseguest. The court may i nfer from the uninterrupted sequence of Sumner’s second- 6 - entry, battery, and departure that Sumner’s unlawful entry into the house was for the purpose of committing the assault and battery.
IV. S UMNER C OMMITTED AN O VERT A CT Here, Sumner committed more than an overt act in furtherance o f assault and battery; he actually committed the assault and battery. Sumner did not cha llenge his assault and battery conviction. It has therefore b ecome the law of the case. See Neff v. Commonwealth, 63 Va. App. 413, 416, 758 S.E.2d 87, 88 (2014) (“The unchallenged finding of the trial court is now the law of the case and bindi ng on the parties for purposes of appeal.” (quoting Today Homes, Inc. v. Williams, 272 Va. 462, 470, 634 S.E.2d 737, 742 (2006)) ). His argument that he did not commit an overt act in furtheran ce of his intent to commit assa ult and battery is th erefore without merit. The trial court did not err i n concluding that the evidence wa s sufficient to show Sumner entered the house during the nigh ttime with the intent to commi t assault and battery. Accordingly, we affirm Sumner’s conviction.
C ONCLUSION Because the evidence was sufficient to prove beyond a reasonab le doubt that Sumner committed statutory burglary, we affirm his conviction. Affirmed.