COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bumgardner and Agee 

Argued at Salem, Virginia 

MICHAEL JASPER COUNCIL 

 MEMORANDUM OPINION* BY 

v. Record No. 2441-00-3 JUDGE G. STEVEN AGEE 

 OCTOBER 16, 2001 

COMMONWEALTH OF VIRGINIA AND 

 CITY OF LYNCHBURG 

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Richard S. Miller, Judge 

 David D. Embrey for appellant. 

 Eugene Murphy, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee Commonwealth of Virginia. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Michael Jasper Council (Council) was convicted in the 

Circuit Court for the City of Lynchburg of statutory burglary 

with intent to commit a misdemeanor, in violation of Code 

§ 18.2-92, and misdemeanor property damage. He was sentenced to 

serve a five-year term of incarceration. Council appeals the 

burglary conviction contending the evidence was insufficient to 

convict him of the particular charge. We disagree and affirm 

the conviction. 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 
value, only those facts necessary to a disposition of this 

appeal are recited. 

 On January 31, 2000, Melissa Wiggins was in her bedroom in 

her shared apartment when she was awakened by a banging noise. 

She got out of bed and dressed, and then noticed the doorknob to 

her closed bedroom door turn. Believing it was one of her 

roommates, Wiggins instructed the person on the other side of 

the bedroom door to come into the room. When the door opened 

Council, a man she had never seen before, stood before her. 

 Wiggins asked Council who he was, to which he replied, 

"police." Wiggins then instructed Council to leave as she 

yelled for her roommates. Council ran out of the apartment 

through the front door. No one was touched, and nothing was 

taken from the apartment. The deadbolt lock on Wiggins' 

apartment door had been knocked out of the door along with parts 

of the door which surrounded the lock. 

 Wiggins called 911 and described the intruder and his 

clothing, noting that he wore a white bandana on his head. 

While Wiggins was on the phone with the 911 dispatcher, the 

police stopped Council outside the apartment building because he 

matched the given description minus the bandana. When told he 

was under arrest, Council ran, and as he did so, threw a pair of 

white women's underwear onto the sidewalk. The police soon 

apprehended him one block from the apartment with his trousers 

unzipped. 

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 Upon his arrest, Wiggins identified Council as the 

intruder. Council denied he broke into the apartment and was 

the person Wiggins encountered. 

I. STANDARD OF REVIEW 

Council argues that, although the Commonwealth's evidence 

supported a breaking and entering charge, there was no evidence 

that he entered the apartment with intent to commit any 

misdemeanor offense. When the sufficiency of the evidence is 

challenged, we consider all the evidence, and any reasonable 

inferences fairly deducible therefrom, in the light most 

favorable to the party that prevailed at trial, which is the 

Commonwealth in this case. Higginbotham v. Commonwealth, 216 

Va. 349, 352, 218 S.E.2d 534, 537 (1975). Witness credibility, 

the weight accorded the testimony and the inferences to be drawn 

from proven facts are matters to be determined by the fact 

finder. See Long v. Commonwealth, 8 Va. App. 194, 199, 379 

S.E.2d 473, 476 (1989). A trial court's judgment will not be 

disturbed on appeal unless it is plainly wrong or without 

evidence to support it. See Code § 8.01-680. 

II. ANALYSIS 

 Code § 18.2-92 provides, in pertinent part: 

If any person break and enter a dwelling 

house while said dwelling is occupied, 

either in the day or nighttime, with the 

intent to commit any misdemeanor except 

assault and battery or trespass, he shall be 

guilty of a Class 6 felony. 

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Council's indictment does not identify a particular misdemeanor 

for which he entered Wiggins' apartment but simply states the 

breaking and entering offense was committed "with the intent to 

commit a misdemeanor other than larceny or trespass."1 Council 

asserts that the evidence failed to establish any intent to 

commit a misdemeanor upon entry into the apartment. We 

disagree. 

 "When an unlawful entry is made into a dwelling 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." 

Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 

732 (1995) (citing Tompkins v. Commonwealth, 212 Va. 460, 461, 

184 S.E.2d 767, 768 (1971)). The state of mind of an accused 

may be shown by his acts and conduct. Hargrave v. Commonwealth, 

214 Va. 436, 437, 201 S.E.2d 597, 598 (1974); Johnson v. 

Commonwealth, 209 Va. 291, 295, 163 S.E.2d 570, 574 (1968). 

 The Commonwealth argues that Council broke into and entered 

the apartment with the intent to commit either indecent exposure 

(Code § 18.2-387) or sexual battery (Code § 18.2-67.4). That 

position is based on Council's zipper being down when he was 

arrested outside the apartment and his discard of women's 

 1

 Council did not challenge the vagueness/sufficiency of the 

indictment at trial or on appeal. Neither did Council ask for a 

bill of particulars to identify the misdemeanor. 

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underwear while attempting to flee. However, no evidence 

directly connects those facts to any conduct inside the 

apartment or his intent when he entered. 

 Council argues that there is insufficient evidence to 

establish a criminal intent other than the actual act of 

breaking and entering, citing Taylor v. Commonwealth, 207 Va. 

326, 150 S.E.2d 135 (1966), and Dixon v. Commonwealth, 197 Va. 

380, 89 S.E.2d 344 (1955). Both cases, though, are 

distinguishable from the case at bar. Neither defendant was 

charged under the statute applied in this case. Further, those 

defendants were not found to have forcibly entered the premises 

or to have intended to commit an offense after entering, as was 

charged. In Dixon, the Supreme Court of Virginia held the 

evidence of intent "was based upon mere surmise and 

speculation." Id. at 382, 89 S.E.2d at 345. Therefore, the 

defendant's conviction was unsupported by the facts and 

reversed. 

 It is not necessary, however, to determine if Council's 

intent was to commit a sexual offense in order to affirm the 

conviction under Code § 18.2-92. The Commonwealth's evidence 

established that Council entered the apartment with other 

criminal intent, which is sufficient under the statute. 

 Upon being confronted in the apartment, Council identified 

himself as a police officer, in violation of Code § 18.2-174. 

This deliberate act is direct evidence of a criminal intent for 

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breaking into the home of people he did not know to impersonate 

a police officer if detected. 

 The Commonwealth is not required to prove one criminal 

intent was predominate over another or that one was exclusive of 

the other. 

A person may commit a crime with more than 

one purpose, and the fact that the act is 

done with two or more specific objectives 

does not mean that the Commonwealth has 

failed to prove the specific intent to 

commit the charged crime. Thus, when the 

Commonwealth proves beyond a reasonable 

doubt that an accused has committed a 

criminal act with both a primary and a 

secondary purpose in mind, both or either of 

which purposes are criminal, the 

Commonwealth has met its burden of proving 

the element of specific intent. 

Hughes v. Commonwealth, 18 Va. App. 510, 530-31, 446 S.E.2d 451, 

463 (1994) (en banc) (Coleman, J., concurring). 

 It is well settled that "[t]he credibility of witnesses, 

the weight accorded testimony, and the inferences to be drawn 

from proven facts are matters to be determined by the fact 

finder." Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 

473, 476 (1989). The judgment of a trial court will be 

disturbed on appeal only if plainly wrong or unsupported by the 

evidence. See Code § 8.01-680. The trial court was in a 

position to evaluate the credibility of witnesses, and its 

decision to reject Council's testimony is amply supported by the 

record. See Cherrix v. Commonwealth, 257 Va. 292, 301-02, 513 

S.E.2d 642, 649 (1999); see also Montgomery v. Commonwealth, 221 

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Va. 188, 190, 269 S.E.2d 352, 353 (1980) (per curiam) ("[E]ven 

if the defendant's story was not inherently incredible, the 

trier of fact need not have believed the explanation."). 

 Council's presence in the apartment, the forceful breaking 

and entering, his statements to Wiggins, and flight are 

consistent with the trial court's finding that he possessed a 

guilty intent upon entry into the home to commit one or more 

misdemeanors. There was direct evidence from which the trial 

court could reasonably conclude Council's intent included 

impersonation of a police officer. Accordingly, we cannot say 

that the trial court's finding that Council possessed the 

necessary intent to commit a misdemeanor was clearly wrong. 

 For the foregoing reasons, we hold that the evidence is 

sufficient to support Council's conviction, and the judgment of 

the trial court is, therefore, affirmed. 

 Affirmed.

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