Green v. Commonwealth

• Citation: 843 S.E.2d 389,72 Va.App. 193
• Decision Date: 16 June 2020
• Docket Number: Record No. 0589-19-1
• Parties: Isaiah A. GREEN v. COMMONWEALTH of Virginia
• Court: Court of Appeals of Virginia

72 Va.App. 193

843 S.E.2d 389

Isaiah A. GREEN

v.COMMONWEALTH of Virginia

Record No. 0589-19-1

Court of Appeals of Virginia.

JUNE 16, 2020

Ronilee Gomez, Deputy Public Defender, for appellant.

Zachary R. Glubiak, John Marshall Fellow (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Chief Judge Decker, Judges Beales and Russell

OPINION BY CHIEF JUDGE MARLA GRAFF DECKER

Isaiah Green appeals his convictions for burglary and violation of a protective order, in violation of Code §§ 16.1-253.2 and 18.2-92. He argues that the trial court erred by finding him guilty of burglary after it had accepted his guilty plea to common law trespass, which is excluded from the burglary statute, as a basis for the break-in. The appellant also contends that the evidence is insufficient to support his conviction for violation of a protective order because the Commonwealth failed to prove that he made a "contact" with the subject of the order. For the reasons that follow, we affirm the challenged convictions.

I. BACKGROUND¹

The appellant's convictions arose from a series of events that began May 8, 2018. On that day, he arrived at the apartment of Starr Catrone, the mother of his son, to pick up the child. Catrone told him to wait outside, but he followed her into the apartment. She urged him to leave, but instead he started screaming at her partner, Amanda Andrades.

Catrone tried to defuse the situation and guided him outside as he continued yelling. In the process, the appellant hit Catrone's hand. Andrades managed to close the door and lock the appellant outside. He banged on the door and demanded that Catrone give him their son. She went outside to speak with him. The appellant, who was still agitated, grabbed a sweater from her hand. Catrone immediately "heard a pop," and she believed that he broke her finger. Knowing that the appellant would not stop asking for their son, she took the child to the appellant.

Catrone returned to her apartment. A few minutes later, the appellant began banging on the window and repeatedly calling her on her phone. Andrades called the police, but the appellant left before the officers arrived. Catrone and Andrades left the apartment and spent the night at a hotel.

When Catrone returned to the apartment the next evening, she noticed the appellant's car parked outside. Before entering the apartment, Catrone called the police. She then opened the door to her apartment and saw the appellant inside. Catrone ran and alerted the police, who had just arrived, that the appellant was there. The appellant fled through the back door. When Catrone went inside, she saw that "[e]verything was torn up." She found two damaged photographs, clothing thrown on the floor, and urine and feces on some of her and Andrades’ things. A back door to the residence was damaged, and a previously locked window was unlocked.

On May 29, 2018, Catrone obtained a preliminary protective order. The appellant was ordered, in relevant part, to "have no contact of any kind" with Catrone.

Three days later, on June 1, the appellant posted a message to his Twitter account.² The message was "Someone tell my BM she was a bird for me." On June 5, after someone notified her about it, Catrone read the message. At trial, she explained that "BM" was an abbreviation for "baby mama," meaning her. Catrone also testified that "a bird for you" can mean either that someone has "gone off with the wind" and is "nothing" or that person is a "ho." The message made Catrone feel intimidated and "a little shocked."

The appellant entered a guilty plea for trespassing, which the trial court accepted. Subsequently, the court also convicted the appellant of statutory burglary and violation of a protective order.³ He received a sentence of twelve months for trespass, twelve months for violation of a protective order, and five years for statutory burglary, with four years and eighteen months suspended.

II. ANALYSIS

The appellant presents two challenges. First, he asserts that the trial court erred by finding him guilty of burglary after it had accepted his guilty plea to trespass. Second, he contends that the Commonwealth failed to prove that he contacted Catrone in violation of the protective order.

A. Burglary

The appellant argues that the trial court erred by finding him guilty of burglary "after he had entered a guilty plea and been found guilty of common law trespass" committed "on or about" the same day. In support of his argument, he points out that the burglary statute prohibits entering a dwelling with the intent to commit a misdemeanor except assault or trespass.

The appellant reasons that because he was convicted of trespass, he could not lawfully be convicted of burglary in light of the express exclusion of trespass as an underlying offense in the burglary statute. In other words, he argues that his intent to commit trespass, which cannot constitute the requisite intent element for burglary under the statute, precludes a burglary conviction altogether. This sufficiency challenge rests on the principle of legal impossibility.⁴

"Legal impossibility occurs when a defendant's actions would not constitute a crime, even if they were carried out fully and exactly as he intended." Masika v. Commonwealth, 63 Va. App. 330, 335, 757 S.E.2d 571 (2014). In Masika, this Court held that the defendant could not be convicted for failure to return leased property in violation of Code § 18.2-118 when he did not return a rental vehicle by the designated date. Id. at 340, 757 S.E.2d 571. The Court reasoned that Code § 18.2-118 specifically excluded leased vehicles from its scope. Id. at 339, 757 S.E.2d 571.

Similar to the statute at issue in Masika, the burglary statute contains some limiting language, specifically excluding from its scope entering a dwelling with the intent to commit a trespass. Compare Code § 18.2-92 (statutory burglary), with Code § 18.2-118 (fraudulent conversion of leased property). However, this case differs from Masika in a critical respect. In Masika, no evidence indicated that the defendant committed an act that was not excluded by the statute. The question here, by contrast, is whether the evidence supports a finding that the appellant entered the residence with an intent to commit a misdemeanor in addition to the excluded offense of trespass. Therefore, our analysis turns to the sufficiency of the evidence with regard to whether some other misdemeanor not excluded by the statute permits the appellant's burglary conviction.

In determining whether the evidence was sufficient to support a criminal conviction, the appellate court views the facts in the "light most favorable" to the Commonwealth. See, e.g., Commonwealth v. Moseley, 293 Va. 455, 463, 799 S.E.2d 683 (2017) (quoting Bowman v. Commonwealth, 290 Va. 492, 494, 777 S.E.2d 851 (2015) ). In conducting this review, the Court defers to the trial court's findings of fact unless they are plainly wrong or without evidence to support them. See Ramsey v. Commonwealth, 65 Va. App. 694, 697, 780 S.E.2d 624 (2015). This deferential standard "requires us to ‘discard the evidence of the accused in conflict with that of the Commonwealth[ ] and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn’ " from that evidence. Vasquez v. Commonwealth, 291 Va. 232, 236, 781 S.E.2d 920 (2016) (quoting Bowman, 290 Va. at 494, 777 S.E.2d 851 ). This standard "applies not only to the historical facts themselves, but [also to] the inferences from those facts." Clanton v. Commonwealth, 53 Va. App. 561, 566, 673 S.E.2d 904 (2009) (en banc ) (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663 n.2, 588 S.E.2d 384 (2003) ). "These principles apply ‘with equal force’ to bench trials no differently than to jury trials." Moseley, 293 Va. at 463, 799 S.E.2d 683 (quoting Vasquez, 291 Va. at 249, 781 S.E.2d 920 ).

Code § 18.2-92 provides, in pertinent part, that it is a Class 6 felony for a person to "break" into "and enter a dwelling house ... with the intent to commit any misdemeanor except assault and battery or trespass." Intent is typically proved by circumstantial evidence. Secret v. Commonwealth, 296 Va. 204, 229, 819 S.E.2d 234 (2018). This category of evidence "is as competent and is entitled to as much weight as direct evidence." Breeden v. Commonwealth, 43 Va. App. 169, 177, 596 S.E.2d 563 (2004) (quoting Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864 (1983) ).

In this case, the evidence clearly supports a finding that the appellant broke into the residence with the intent to commit a misdemeanor in addition to a trespass. It supports the finding that he entered the apartment with the intent to damage property in violation of Code § 18.2-137. In fact, the appellant was convicted of property damage for destruction that he caused after he broke into the apartment. The fact that the appellant entered the property intending to commit a trespass simply does not preclude the conclusion that he additionally intended to commit another misdemeanor, namely damaging property within the apartment. See, e.g., Moody v. Commonwealth, 28 Va. App. 702, 708, 508 S.E.2d 354 (1998) (holding that the defendant could act with more than one intent).

The day after an angry outburst, the appellant forced entry into Catrone's apartment and damaged personal property inside, including urinating and defecating on clothes and in a suitcase. This record supports the trial court's finding that the appellant entered the residence with the intent to trespass and commit another misdemeanor, specifically, destruction of property. The trial court did not err in reaching that conclusion.

B. Violation of the Protective Order

The appellant argues that the evidence is insufficient to support his conviction for violation of a protective order because he did not "contact" Catrone in contravention of the order. He suggests that the message that he posted on Twitter was not a contact ...