COURT OF APPEALS OF VIRGINIA

Present: Chie f Judge Fitzpatr ick, Judges El der and Bray Argued at Ches apeake, Virginia

CHRISTOPHER EU GENE MOORE MEMORANDUM OPINION * BY v. Record No. 0915-99-1 JUDGE RICHAR D S. BRAY FEBRUARY 29, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Robert W. Cu rran, Judge Mark A. Stallings (Glasser and Glasser, P.L.C., on brief), for appellant. Shelly R. James, As sistant Attorn ey General (Mark L. Earley, Attorney General, on brief), for appellee.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. Christopher Euge ne Moore (defen dant) was convic ted in a bench trial of burglary "wit h intent to co mmit assault an d battery," a violation of Code § 18 .2-91. On appeal, de fendant chal lenges the sufficiency of the ev idence to pr ove the requis ite intent. Finding no error, we affirm the conviction. The parties ar e fully conversa nt with the re cord, and this memorandum opinion re cites only those fa cts necess ary to a disposition of the appeal. In reviewing the suff iciency of the eviden ce, we consider the record "'in the light most favorable to the Commonweal th, givingit all reasonable infe rences fairly deducibl e therefrom. In so doing, we must discar d the evidence of the accused in conflict with that of the Common wealth, and rega rd as true al l the credible evidence favorable to the Commonwealth . . . .'" Watkins v. Commonwealth , 26 Va. App. 335, 348, 494 S.E.2d 859, 866 (1998) (citation omit ted). The credibil ity of the witnes ses, the weight accorded testimony, an d the inferences drawn from the proven facts are matters to be determined by th e fact finder. See Long v. Commonwealth , 8 Va. App. 194, 199, 379 S.E.2d 47 3, 476 (1989). The judgment of the trial court will not be di sturbed unless plainly wrong or unsupp orted by evidence. See Code § 8.01-680. Viewed accordingly, the record discloses that, at approximately 5:50 a.m. on Sept ember 25, 1998, defendant "k nocked" at the apartment window of his es tranged wife, Ag nes James, and "asked [her] to open the door." Ja mes thought defe ndant "did not know where [she] wa s living," and he was not we lcome. Nonetheless, James open ed a door, which acce ssed the hallway of the apartment buil ding, but "told [d efendant] that he would have to talk . . . [there ] 'cause [her] childr en [were] in [the apartment]." De fendant immedi ately began "talki ng" to James and "asking [her] ques tions." When she "did n’t respond the way he wanted" or "tried to go back" into her apar tment, defendant would "grab [her] under her breast and . . . shov e [her] up against the wall." On "several" occasions, he "grabbed [James] around the neck and choked" her. When defendant mo mentarily left the

- 2 -building to advi se someone waitin g for him that he would "be out in a minute," James qu ickly re-entered her apartment, locked and "put the chain on the door." Defendant soon returned, howe ver, knocked an d repeatedly demanded that Ja mes "open the door ." When she re fused, defendant began to "push on th e door" and, "finally ," despite James' resistance "against the door," "broke [it] op en with fo rce," "just busted the door open." Upon entry, defend ant was conf ronted by James' nine-year-old so n, armed with a "stick " in an effort to protect her. De fendant took the stick fr om the child, assuring him, "I'm not gonna hu rt your mother." A day-care van then arrived for James' children, and sh e escorted them to the vehicle, with defendant "right there behind [her]. " As her daughter stepped inside, Ja mes "whispered in her ear . . . to call 9-1-1." Defendant return ed to the apar tment with Jame s and resumed "pushing" her, "calli ng [her] names," atte mpting to kiss and otherwise "bad ger" her. "Final ly," he angrily declared, "Forget you," and left. James' evidence included a lett er to her from defendant, then in jail as a result of the incident. Defend ant wrote th at he was "ashamed" and "sor ry" for his "bad actions" and expres sed "awful" feelings "because [h e] hurt, . . . disapp ointed, . . . and let [James] down." He urged her to drop "these charge s" and pledged, "I will never put my ha nds on you to hurt yo u again." Later, at trial, defendant admitted that he "grabbed [J ames] on her torso so - 3 -she would just hear wh at I had to say," to talk and "work out our problems." To convict defe ndant of the instant offe nse, the Commonwealth was required to prove that he br oke and entered Ja mes' apartment "with intent to commit assault and battery." See Code § 18.2-91. Defendant does not dispute the un lawful entry but contends that the evidence failed to establish the necessary intent. "[W]hen an unlawful entry is made in to a dwelling, the presumption is th at the entry was made for an unla wful purpose." Tompkins v. Commonwealth , 212 Va. 460, 461, 184 S.E.2d 767, 768 (1971). "The sp ecific purpose, meaning specific intent, with which such an en try is made may be inferr ed from the surrounding facts and circ umstances." Scott v. Commonwealth , 228 Va. 519, 524, 323 S.E.2d 572, 57 5 (1984). "Because di rect proof of intent is often impossible , it must be shown by ci rcumstantial evidence." Servis v. Commonwealth , 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). "Circumstantia l evidence is as comp etent and is entitled to as much weight as direct evidence, provided it is su fficiently convincing to ex clude every reason able hypothesis except that of guilt." Coleman v. Commonwealth , 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). Here, defendan t's conduct both before and after he "busted open" the apartmen t door clearly ma nifested a contin uing intent to assault James. During the initial encoun ter in the hallway, he repeatedly pushed, grab bed, shoved, and choked her, bruising her

- 4 -body and injuring her breasts. Late r, when denied entry to the locked apartment, he "broke the door open with force," an act attended by such viol ence that James' son intervened to protect his mother, and James asked her daughter to dial 911 for assistance. Once in side, defendant again pushed, "slapped" and otherwise abused James, both verbally and physic ally. In subsequent corresponden ce to James, defend ant expresse d remorse and contrition and urged James to "drop the charge s," statements reflective of a consciousness of guilt for co nduct which he described as "bad actions." The record, th erefore, provides comp elling evidence of defendant's in tent to assault an d batter James fr om the inception of the confrontat ion in the hallway, a mi ndset that accompanied the unlawful entry in to her apartment an d ended only when defendant left the premises in anger and frustration. Accordingly, we find the evidence suffic ient to su pport the conviction and affi rm the decision of the trial court. Affirmed.

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