COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Frank and Clements Argued at Richmond, Virginia
BILLY RAY SEAL MEMORANDUM OPINION * BY v. Record No. 1616-00-1 JUDGE JEAN HARRISON CLEMENTS OCTOBER 16, 2001 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Frederick B. Lowe, Judge
Andrew G. Wiggin (Donald E. Lee, Jr. and Associates, on briefs), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Billy Ray Seal was convicted in a bench trial of statutory
burglary with intent to commit assault and battery in violation of
Code § 18.2-91 and assault and battery in violation of Code
§ 18.2-57. On appeal, he contends (1) the evidence was not
sufficient to sustain the convictions and (2) the trial court
applied the wrong standard of proof to convict him. Finding no
error, we affirm the convictions.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts and incidents of the
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. proceedings as necessary to the parties' understanding of the
disposition of this appeal.
A. SUFFICIENCY OF THE EVIDENCE
When the sufficiency of the evidence is challenged on appeal,
we review the evidence "in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom." Bright v. Commonwealth, 4 Va. App. 248,
250, 356 S.E.2d 443, 444 (1987). We may not disturb the
conviction unless it is plainly wrong or unsupported by the
evidence. Sutphin v. Commonwealth, 1 Va. App. 241, 243, 337
S.E.2d 897, 898 (1985). We are further mindful that the
"credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters solely
for the fact[ ]finder's determination." Keyes v. City of Virginia
Beach, 16 Va. App. 198, 199, 428 S.E.2d 766, 767 (1993).
Seal concedes the victim, Jacques Plouffe, told Seal he could
not enter the townhouse that night. He contends, however, the
Commonwealth failed to prove his entry was illegal because he had
permission from the co-tenant, Erin McCrea, to enter at will.
Thus, he argues, he could not be convicted of burglarizing the
townhouse.
The Commonwealth preliminarily contends Seal's argument is
procedurally barred because it was never made to the trial court,
or, if made, was subsequently waived. We disagree with the
- 2 - Commonwealth and find that Seal's argument is not procedurally
barred.
During closing argument, the trial court asked Seal's
attorney whether Seal had the right to come in the townhouse even
though Plouffe, the co-lessee, told Seal he could not come in.
Seal's attorney, who argued that McCrea had given Seal "blanket
permission" to enter the residence any time responded:
Judge, I know that if I have permission from someone to go to their house for whatever the reason may be, and I have no idea and no reason to know that there's somebody else there that can tell me that I can't do that, then I feel like I have the right to do what — what I was granted permission to do in the first place, and that is to go in for whatever reason.
Based on this exchange and the discussion that followed, we
are able to conclude that the argument presented to the trial
court is the same argument Seal makes on appeal. Thus, the trial
court and the Commonwealth were given the opportunity to
intelligently address, examine, and resolve this issue in the
trial court. See Lee v. Lee, 12 Va. App. 512, 514, 404 S.E.2d
736, 737 (1991) (en banc).
The Commonwealth contends, however, that Seal subsequently
waived his argument in the following exchange between the trial
judge and Seal's attorney:
THE COURT: [B]ut do you have the right to say, "Well, Erin says it's okay for me to come in; but this guy says I can't; so I'm going to push my way in." Does he have the right to do that?
- 3 - COUNSEL: No, Judge. I don't think necessarily you do . . . .
We find, based upon our review of the entire exchange between
the court and counsel for Seal, that Seal's counsel, in this
particular portion of the discussion, is merely conceding that the
assault described by the judge would not be legally justified. We
do not construe counsel's comments to be a waiver of Seal's
present claim that he cannot be convicted of burglary because he
was given permission by McCrea to enter the residence. Thus, the
issue of whether the evidence presented was sufficient to prove
beyond a reasonable doubt that Seal's entry of the residence was
illegal is properly before us on appeal. See Cottee v.
Commonwealth, 31 Va. App. 546, 559-60, 525 S.E.2d 25, 31-32
(2000).
The evidence proved that, at the time of the subject
incident, Plouffe lived in a townhouse at 430 Falling Lane in
Virginia Beach with McCrea. Each had a separate lease for and
access to the entire townhouse. Plouffe admitted he did not need
McCrea's permission to have guests come to the residence, but, as
a common courtesy, he had guests over without her permission only
when he was there.
At approximately midnight on November 13, 1996, Seal came to
the residence and knocked on Plouffe's door. McCrea was not home.
When Plouffe opened the door, Seal told him that Seal's
girlfriend, Elizabeth, had just been in a car accident on the
- 4 - street. Seal asked to use Plouffe's phone. Plouffe had never met
Seal and did not know him. Because Plouffe smelled alcohol on
Seal, Plouffe told Seal he could not come in. Seal did not tell
Plouffe that McCrea had given him permission in the past to come
in whenever he wanted. When Plouffe began to shut the door, Seal
pushed it open, shoved Plouffe aside, and entered the residence.
As he came in, Seal called out to his cousin, Michael Smith,
who had been parking the car, "Mike, he's here." Seal then
attacked Plouffe, forcing Plouffe to defend himself. At that
point, Smith entered the residence and pulled Plouffe off Seal.
Seal and Smith then threw Plouffe onto the couch and repeatedly
punched him in the face and head. The two assailants fled, and
Plouffe called 911. Later that night, Plouffe identified Seal and
Smith to the police as his attackers.
Smith testified for the Commonwealth. He claimed he and Seal
had gone to McCrea's house to "[b]asically go to talk to Jacques."
While Smith parked the car, Seal went to the door. Smith saw the
two men arguing and then "disappear[ ] inside the house." Smith
further claimed that, when he entered the townhouse, Plouffe was
holding Seal against a wall. Smith grabbed Plouffe only to pull
him off Seal and "break it up." Smith further testified that, in
the past, McCrea had given him permission to go to her home
regardless of whether she was there. He did not need permission
every time he went to the townhouse, Smith stated. Smith admitted
- 5 - that Seal and he had not been given specific permission to go to
the townhouse that night.
Testifying for the defense, McCrea stated there were no
restrictions in her lease regarding whom she could invite to her
townhouse or when visitors could come. Seal, a friend of hers,
had permission to be at her home any time he wanted, McCrea said,
even when she was not there. At trial, McCrea stated she no
longer lived with Plouffe, disliked him, and found him to be
untruthful.
Under Code § 18.2-91, a person who commits an act proscribed
by Code § 18.2-90 with the intent to commit assault and battery is
guilty of statutory burglary. Code § 18.2-90 provides, in
relevant part, that an unlawful act is committed by one who "in
the nighttime enters without breaking . . . a dwelling house." In
construing these statutes, we have said that "Code §§ 18.2-90 and
18.2-91 expand traditional burglary to include entry without
breaking in the nighttime." Turner v. Commonwealth, 33 Va. App.
88, 92, 531 S.E.2d 619, 621 (2000) (footnote omitted).
Here, the evidence proved that Seal entered Plouffe's home at
approximately midnight. Thus, because Seal entered Plouffe's
dwelling house in the nighttime, the Commonwealth was not required
to prove that Seal broke into the residence.
Whether Seal's entry was made with permission from McCrea,
the co-tenant, is a question for the fact finder. See Snyder v.
Commonwealth, 220 Va. 792, 793, 263 S.E.2d 55, 59 (1980). Plouffe
- 6 - testified that he felt it was common courtesy to be home when he
invited guests to the house without McCrea's knowledge or
permission. Neither McCrea nor Seal told Plouffe that Seal had
been given "blanket permission" by McCrea to come in whenever he
wanted. McCrea was not home that night, and she had not given
Seal specific permission to come inside the house at midnight in
her absence. Moreover, Seal was not there to visit McCrea, but to
confront Plouffe, who did not know him. Seal even went so far as
to concoct a false story in his effort to gain entry into
Plouffe's home.
The trier of fact is not required to accept a party's
evidence in its entirety, but is free to believe or disbelieve in
part or in whole the testimony of any witness. Rollison v.
Commonwealth, 11 Va. App. 535, 547, 399 S.E.2d 823, 830 (1991).
Thus, the trial court was not required to accept the testimony of
Smith and McCrea that Seal had permission to enter Plouffe's
residence at will. Indeed, the record clearly reveals that the
trial court found McCrea's testimony that Seal had her permission
to truly enter the house any time he wanted, including, as the
court pointed out, in the middle of the night while she was asleep
or when she was not there, implausible. See Legions v.
Commonwealth, 181 Va. 89, 92, 23 S.E.2d 764, 765 (1943) (noting
that judges are not required to believe that which they know from
their common sense, knowledge of human nature, and knowledge of
human experience is inherently incredible). Moreover, such
- 7 - testimony by Smith and McCrea was inconsistent with Seal's
concoction of a story to gain entry into the house and his failure
to tell Plouffe he had McCrea's permission to enter. Thus, the
trial court was entitled to question the veracity of that
testimony. See Bridgeman v. Commonwealth, 3 Va. App. 523, 528,
351 S.E.2d 598, 601 (1986) (noting that, when the testimony of an
unimpeached witness conflicts with other evidence, the weight
given to the evidence and the credibility of the witness are
questions for the fact finder to determine). Based on our review
of the record, we cannot say the trial court's determination was
plainly wrong or without credible evidence to support it. We
hold, therefore, that the evidence was sufficient to support the
trial court's finding that, under the circumstances presented,
Seal did not have permission to enter Plouffe's dwelling house
that night.
Seal's further argument that the legislature did not intend
to eliminate the defense of consent or lack of trespassory conduct
is likewise without merit under the circumstances of this case.
The resolution of this question is controlled, we conclude, by our
decision in Clark v. Commonwealth, 22 Va. App. 673, 472 S.E.2d 663
(1996), aff'd en banc, 24 Va. App. 253, 481 S.E.2d 495 (1997), the
facts of which are analagous to this case. In Clark, the accused
was convicted of statutory burglary for entering a store in the
nighttime during business hours and subsequently committing
robbery. Addressing Clark's claim that he entered the store with
- 8 - permission, we noted that "'[i]t would be an impeachment of the
common sense of mankind to say that . . . a thief who enters the
store with intent to steal does so with the owner's consent and
upon his invitation.'" Id. at 677, 472 S.E.2d at 665 (alteration
in original) (quoting Johns v. Comomnwealth, 10 Va. App. 283, 287,
392 S.E.2d 487, 489 (1990) (internal quotations omitted)). We
held that, "under Code § 18.2-90, a person who enters a store
intending to commit robbery therein, enters the store unlawfully."
Id. at 674, 472 S.E.2d at 663; see also Davis v. Commonwealth, 132
Va. 521, 524, 110 S.E. 356, 357 (1922) (citing with approval cases
holding that if a person who is "fully authorized to enter for
purposes within the scope of the employment or trust enters . . .
to commit [robbery], he will be guilty of burglary"). Applying
the same rationale to this case, we hold that, because Seal
entered the dwelling house of Plouffe in the nighttime with the
intent to assault and batter him, his entry was unlawful.
Seal also contends the evidence was not sufficient to prove
beyond a reasonable doubt that he entered Plouffe's residence with
the intent to assault and batter Plouffe. Likewise, he adds, the
evidence was not sufficient to convict him of assault and battery
because there was no evidence that he started the fight. We
disagree with both claims.
The evidence established that Seal and his codefendant,
Smith, went to Plouffe's home at midnight specifically to confront
Plouffe. Seal, who had been drinking, concocted a story to gain
- 9 - entry. When told he could not enter the house, Seal pushed the
door open and shoved Plouffe aside, thus gaining his entry. Seal
hollered to his cohort, "Mike, he's here," and then attacked
Plouffe, who was forced to defend himself. When Smith rushed in
the home, he and Seal proceeded to throw Plouffe onto the couch
and repeatedly punch him in the face and head.
We hold the trial court, as the trier of fact, could
reasonably infer from this evidence that Seal entered Plouffe's
dwelling house in the nighttime with the intent to assault and
batter him and that Seal did, in fact, assault and batter his
victim. The convictions are not plainly wrong.
B. STANDARD OF PROOF
Seal contends the trial court erroneously applied a
standard of proof of "likelihood" in convicting him of assault
and battery. In making this argument, Seal relies on the
following exchange between the trial court and Seal's attorney:
THE COURT: But it appears — and again, it appears from the evidence that there is a likelihood that something happened in that townhouse that night.
COUNSEL: May very well have, Judge. I'm not arguing that point. Something may have happened.
The court's statement, Seal argues, indicates that the court
applied a lesser standard of proof than "beyond a reasonable
doubt." Seal also asserts the trial court applied an unlawful
standard of proof as to the element of intent in the burglary
- 10 - conviction. As the basis for this argument, Seal relies on the
trial court's stated finding "that this defendant was in this
house and they were having a fight, and Erin wasn't there to let
him in." The mere finding by the court that a fight occurred,
Seal argues, is not, by itself, sufficient to convict Seal of
assault and battery.
The Commonwealth contends that Seal's arguments were not
properly preserved for appeal in accordance with Rule 5A:18. We
agree with the Commonwealth.
"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);
see also Rule 5A:18. The purpose of this rule is to insure that
the trial court and opposing party are given the opportunity to
intelligently address, examine, and resolve issues in the trial
court, thus avoiding unnecessary appeals. See Lee, 12 Va. App.
at 514, 404 S.E.2d at 737; Kaufman v. Kaufman, 12 Va. App. 1200,
1204, 409 S.E.2d 1, 3-4 (1991).
At trial, in his motion to strike and his renewed motion to
strike, Seal challenged the sufficiency of the evidence but did
not raise the standard of proof arguments he makes before us.
Because these arguments were not raised in the trial court,
Seal's arguments on appeal are procedurally barred by Rule
5A:18. Furthermore, our review of the record in this case does
- 11 - not reveal any reason to invoke the "good cause" or "ends of
justice" exceptions to Rule 5A:18.
Accordingly, we affirm Seal's convictions.
Affirmed.
- 12 - Benton, J., concurring, in part, and dissenting, in part.
I would affirm the assault and battery conviction for the
reasons stated in the majority opinion. However, I would
reverse the burglary conviction.
The Commonwealth's evidence proved that Jacques Plouffe and
Erin McCrea leased the residence. Each had an individual lease
for the entire residence and had access to the entire residence.
No evidence proved that the lease restricted Plouffe's or
McCrea's authority to use the residence or to permit their
guests to enter the residence. As tenants in common, each had a
separate, distinct, and undivided interest in the property and
had a right of entry to an undivided portion of the whole.
Braxton v. Phipps, 183 Va. 771, 773, 33 S.E.2d 650, 651 (1945);
In re Estate of Rogers, 473 N.W.2d 36, 40 (Iowa 1991).
Furthermore each had a right to "'use the premises for any
lawful purpose consistent with the character of the premises.'"
Branner v. Kaplan, 138 Va. 614, 619, 123 S.E. 668, 669 (1924)
(citation omitted). That right included each tenant's common
authority to permit access and entry by third persons to the
premises. "As a tenant in common of [real property, a person's]
right to use and occupy the premises clearly includes the right
to grant a license to his guests to [enter and] use the
premises." Race v. Meyer, 640 N.Y.S.2d 664, 667 (N.Y. App.
1996). Moreover, as the United States Supreme Court has more
broadly recognized, the mutual use of property by persons having
- 13 - joint access and control is a sufficient basis to conclude that
any one such person has the right to permit a third person
lawfully to enter the premises. United States v. Matlock, 415
U.S. 164, 171 n.7 (1974). See also United States v. Mitchell,
209 F.3d 319, 324 (4th Cir. 2000).
In a prosecution for burglary, the Commonwealth bears the
burden of proving beyond a reasonable doubt that the entry by
the accused was unauthorized. Davis v. Commonwealth, 132 Va.
521, 524, 110 S.E. 356, 356 (1922). See also Johnson v.
Commonwealth, 221 Va. 872, 876, 275 S.E.2d 592, 595 (1981);
Snyder v. Commonwealth, 220 Va. 792, 798-99, 263 S.E.2d 55, 59
(1980); Clark v. Commonwealth, 22 Va. App. 673, 678-84, 472
S.E.2d 663, 665-68 (1996) (Benton, J., dissenting). No evidence
in this case proved the lease prohibited McCrea from authorizing
third persons to enter her residence. Moreover, McCrea
testified that she had expressly given Billy Ray Seal "blanket
permission" to enter her residence at "any time he wanted." In
addition, Michael Smith, the Commonwealth's witness who
accompanied Seal to the residence, testified that McCrea
previously had authorized him to enter her residence even if she
was not present and that he had entered the residence on other
occasions.
The evidence, therefore, was uncontradicted that McCrea had
given both Seal and Smith permission to enter the apartment even
if she was not present.
- 14 - While . . . a judge trying a case without a jury . . . [is] the [judge] of the weight of the testimony and the credibility of witnesses, [a judge] may not arbitrarily disregard uncontradicted evidence of unimpeached witnesses which is not inherently incredible and not inconsistent with the facts appearing in the record, even though such witnesses are interested in the outcome of the case.
Hodge v. American Family Life, 213 Va. 30, 31, 189 S.E.2d 351,
353 (1972). McCrea could not have been clearer when she
testified that Seal "was a good friend . . . [and] had
permission to be at my house any time." Similar to the
testimony in Hodge, McCrea's testimony "was uncontradicted; it
was not inherently incredible; and it constituted the only facts
appearing in the record" on this issue. Id. at 32, 189 S.E.2d
at 353. Indeed, her testimony was substantially corroborated by
the Commonwealth's witness, who testified he had also been given
similar permission by McCrea. As the Supreme Court ruled in
Hodge, "[e]ven though the trial judge did not believe [the
witness'] testimony, [the judge's] mere belief or speculation is
not sufficient to disregard the evidence." Id. See also Phelps
v. State Farm Mutual Auto Ins. Co., 245 Va. 1, 10, 426 S.E.2d
484, 489 (1993). Simply put, because the evidence proved that
McCrea had given Seal permission to enter her residence, the
Commonwealth failed to prove Seal's entry was unauthorized.
For these reasons, I would hold that Seal had McCrea's
permission to enter the residence. He was not privileged,
- 15 - however, to assault Plouffe when he entered. Thus, I would
affirm the assault and battery conviction, but I would hold that
the evidence was insufficient to prove beyond a reasonable doubt
the burglary offense. I would reverse the burglary conviction
and dismiss the indictment.
- 16 -