COURT OF APPEALS OF VIRGINIA
Present: Judges Chafin, Ma lveaux and Senior Judge Frank Argued at Norfolk, Virginia

MICHAEL RAY JENNINGS MEMORANDUM OPINION * BY v. Record No. 1625-15-1 JUDGE ROBERT P. FRANK OCTOBER 18, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK David W. Lannetti, Judge J. Barry McCracken, Assistant Public Defender, for appellant. Benjamin H. Katz, Assistant At torney General (M ark R. Herring, Attorney General, on brief), for appellee.
Michael Ray Jennings, appellant, was convict ed in a bench trial of unlawful entry upon the property of another, in viol ation of Code § 18.2-121. On appeal, he contends the evidence was insufficient to prove he intend ed to interfere with the rights of the occupant to use such property free from interference. Fo r the reasons stated, we affirm the judgment of the trial court.
BACKGROUND “On appeal, we review the evidence in th e light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.” Wells v. Commonwealth, 65 Va. App. 722, 725, 781 S.E.2d 362, 364 (2016) (quo ting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). So viewed, the evidence proved that, in February of 2015, Shakeida Goode lived with her four daught ers, the youngest of whom was fathered by appellant. Nearly eleven months earlier, in April of 2014, appellant had moved out of Goode’s

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.UNPUBLISHED- 2 - home. Around January 31, 2015, Goode met appella nt at a motel and to ld appellant their relationship was over. Appellant physically assaulted G oode, and she told him not to come near her or her children. On the evening of February 1, 2015, Goode’s two youngest daughters, eleven and nine years old, went to sleep in the bunk beds they sh ared. Goode’s other tw o daughters were not in the house that evening. Goode fell asleep in the den with the televi sion on. All of the lights in the house were off. At 3:20 a.m., she awoke to a “loud bang.” Fearful that a child had fallen out of the bunk beds, Goode got up and went to the girls’ bedroom to check on them. She found them both asleep. As she turned to leave, Goode was confr onted by appellant standing behind her in the girls’ bedroom. Goode had not invited appellant to her home, and had not given him permission to be there. Goode asked appellant why he was there and how he had gained entry to the house. He responded, “I just wanted to hug my daughter for the last time.” Appellant stepped toward Goode’s youngest daughter, but Goode remained between them and told appellant, “No, get out of my house.” As appellant exited the home, he “snatc hed [Goode’s] phone off [its] charger,” and stated, “Give me this,” as he ran toward the fr ont door. Goode “wrestled” with appellant in an effort to retrieve her phone, and pursued him in to her front yard. However, appellant escaped with Goode’s phone. As he left the scene, he screamed obscenities at G oode and threatened to kill her mother and father. When Goode returned inside her house, she noticed her bedroom window was open and the air conditioner previously pl aced in the window was on the floor. Fearful that appellant intended to hurt her when he entered her bedroom, Goode and her children moved to a different- 3 - location. She testifie d that neither she nor her children felt safe there anymore. Specifically, she stated that her children “could not sleep there anymore,” noting that they “were scared” and “did not know what [the defendant] was going to do to [Goode].” Appellant was arrested and convicted of violating Code § 18.2-121. This appeal followed.
ANALYSIS Appellant contends there was insufficient evidence to prove he entered Goode’s property with the intent to damage her property or in any manner to interf ere with her rights. Code § 18.2-121 states in pertinent part: It shall be unlawful for any person to enter the . . . dwelling . . . of another for the purpose of damaging such property 1 or any of the contents thereof or in any manner to interfere with the rights of the owner, user or the occupant ther eof to use such property free from interference. “When considering on appeal the sufficiency of the evidence presented below, we ‘presume the judgment of the trial court to be correct’ and reverse onl y if the trial court’s decision is ‘plainly wrong or without evid ence to support it.’” Wood v. Commonwealth, 57 Va. App. 286, 296, 701 S.E.2d 810, 815 (2010) (quo ting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)). “If there is evidence to support the convictions, the reviewing court is not permitted to substitute its own judgment, even if its opinion might differ from the conclusions reached by the fact finder at the trial.” Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998). “Intent is the purpose formed in a person’ s mind which may, and often must, be inferred from the facts and circumstances in a particular cas e. The state of mind [or criminal intent] of an

1 The Commonwealth does not contend that appellant entered Goode’s house with the intent to damage her property.- 4 - alleged offender may be shown by his acts and conduct.” Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314 (1979). “The specific inte nt to commit [a crime] may be inferred from the conduct of the accused if such intent flows naturally from the conduct proven.” Wilson v. Commonwealth, 249 Va. 95, 101, 452 S.E.2d 669, 674 (1995). “Intent may be, and most often is, proven by circumstantial evidence and th e reasonable inferences to be drawn from proven facts.” Viney v. Commonwealth, 269 Va. 296, 301, 609 S.E.2d 26, 29 (2005). “When an unlawful entry is made into a dwelli ng of another, the presumption is that the entry was made for an unlawful purpose, and the specific intent with which such entry was made may be inferred from the surrounding facts and circumstances,” Sa ndoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995) (cit ing Tompkins v. Commonwealth, 212 Va. 460, 461, 184 S.E.2d 767, 768 (1971)), including thos e before, during, and after the break-in, Scott v. Commonwealth, 228 Va. 519, 524, 323 S.E.2d 572, 575 (1984); see also Robertson v. Commonwealth, 31 Va. App. 814, 822, 525 S.E.2d 640, 644 (2000). Here, the evidence reveals that appellant unlawfully entered Goode’s unlit home at 3:20 a.m. by forcing the air conditioner out of the bedroom window. At the time he entered the house, appellant knew that Goode had terminated their relationship and had banned him from the house. It is reasonable to infer he knew that the children and Goode w ould be asleep and any invasion would be frightening and disruptive to the quiet enjoymen t of her property. Goode testified that appellant had physica lly assaulted her when she terminated their relationship and that she was afra id of him. After appellant br oke into the house, Goode and her children immediately moved to another location because they did not feel safe. As this Court has held, “the privacy interest in one’s home has few equals.” Kyer v. Commonwealth, 45 Va. App. 473, 480, 612 S.E.2d 213, 217 (2005); see also Martin v. Moore, 263 Va. 640, 648, 561 S.E.2d 672, 677 (2002) (In discussing the use of land in the context of nuisance juri sprudence, the Court- 5 - stated, “Freedom from discomfort and annoyance while using land, which involves an element of personal tastes and sensibilities, is often as important to an in dividual as freedom from physical interruption in the use of the land.”). Appellant’s sole argument on appeal is that his stated reason to Goode for entering the house was his desire to hug his daughter and th at the trial court erred in not accepting his hypothesis of innocence. Properly understood, the reasonable -hypothesis principle is not a discrete rule unto itself. “The statement that circumstantial evidence must exclude every reasonable theory of innocence is simply another way of stating that the Commonwealth has the burden of proof beyond a reasonab le doubt.” [Commonwealth v.] Hudson, 265 Va. [505,] 513, 578 S.E.2d [781,] 785 [(2003)]. Thus, the principle “does not a dd to the burden of proof placed upon the Commonwealth in a criminal case.” Id. It merely echoes “the standard applicable to every criminal case.” Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983); see also Pease v. Commonwealth, 39 Va. App. 342, 360, 573 S.E.2d 272, 280 (2002) ( en banc ), aff’d, 266 Va. 397, 588 S.E.2d 149 (2003) ( per curiam ) (adopting the opinion of the Court of Appeals). Vasquez v. Commonwealth, 291 Va. 232, 249-50, 781 S.E.2d 920, 930 (2016). “‘Whether an alternate hypothesis of innocence is reasonable is a question of fact and, therefore, is binding on appeal unless plainly wrong.’” Emerson v. Commonwealth, 43 Va. App. 263, 277, 597 S.E.2d 242, 249 (2004) (quoting Archer v. Commonwealth, 26 Va. App. 1, 9, 602 S.E.2d 402, 406 (2004) (holding that where the factfinder has rejected the hypothesis of innocence, “that determination cannot be overturne d as arbitrary unless no rational factfinder would have come to that conclusion”). Wood, 57 Va. App. at 306, 701 S.E.2d at 819-20. Goode had the right to enjoy the serenity of her home. A rational fact finder could conclude that appellant, who was estranged from Goode and who had recently assaulted her, would be aware that his late-night, surreptiti ous invasion into Goode’s unlit home would cause Goode and her children to be fearful and w ould interfere with her privacy and peaceful- 6 - enjoyment of her home. 2 Taking into account the history of the relationship between appellant and Goode, as well as appellant ’s threatening actions followi ng his entry, the evidence was sufficient for a reasonable fact finder to conclude that, at the time a ppellant entered Goode’s home, he did so with the intent to interfere with her right to enj oy her home free from interference. Accordingly, the evidence was competent, credible, and sufficient to prove appellant’s guilt beyond a reasonable doubt. Affirmed.

2 In fact, appellant’s actions re ndered Goode’s home uninhabitable.