Sumner v. Commonwealth, Record No. 0520-16-2

• Decision Date: 23 May 2017
• Docket Number: Record No. 0520-16-2
• Court: Virginia Court of Appeals
• Parties: JAMAL RYAN SUMNER v. COMMONWEALTH OF VIRGINIA

JAMAL RYAN SUMNER v. COMMONWEALTH OF VIRGINIA

Record No. 0520-16-2

COURT OF APPEALS OF VIRGINIA

MAY 23, 2017

UNPUBLISHED

Present: Chief Judge Huff, Judges Petty and Beales

Argued by teleconference

MEMORANDUM OPINION^* BY JUDGE WILLIAM G. PETTY

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

Beverly W. Snukals, Judge

Jennifer M. Newman (Nancy M. Newman; Jennifer M. Newman, Esq., P.C., on brief), for appellant.

Benjamin H. Katz, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Jamal Ryan Sumner argues on appeal that the trial court erred in convicting him of breaking and entering in violation of Code § 18.2-91¹ because there was insufficient evidence to prove the elements of the crime. Because we find sufficient evidence to support each element of the crime, we affirm the trial court's decision.

BACKGROUND

Because the parties are fully conversant with the record in this case and this memorandum opinion carries no precedential value, we recite below only those facts andincidents of the proceedings as are necessary to the parties' understanding of the disposition of this appeal.

"As an appellate court, '[w]e may not "substitute our judgment for that of the trier of fact," nor may we "reweigh the evidence," because we have no authority "to preside de novo over a second trial."'" Jones v. Commonwealth, 65 Va. App. 274, 279, 777 S.E.2d 229, 231 (2015) (alteration in original) (quoting Ervin v. Commonwealth, 57 Va. App. 495, 503, 704 S.E.2d 135, 138-39 (2011)). Accordingly, the facts on appeal are not "in dispute." Rather, "[u]nder well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party in the circuit court." Porter v. Commonwealth, 276 Va. 203, 215-16, 661 S.E.2d 415, 419 (2008). "Viewing the record through this evidentiary prism requires [the Court] to 'discard the evidence of the accused in conflict with that of the Commonwealth . . . .'" Bryant v. Commonwealth, 67 Va. App. 569, 579, 798 S.E.2d 459, ___ (2017) (quoting Cooper v. Commonwealth, 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009)).

Sumner contacted K.T., his ex-girlfriend and the mother of his child, by text message. He then went to K.T.'s home. At the time, K.T. had a male houseguest and a female houseguest. Sumner pushed his way into the home, and the male houseguest pushed him back outside. While Sumner was outside, he fired several shots through the door, hitting the female houseguest. Sumner then reentered the house and battered the male houseguest, who was lying on the floor.

ANALYSIS

Code § 18.2-91 provides in pertinent part, "If any person commits any of the acts mentioned in Code § 18.2-90 . . . with intent to commit assault and battery, he shall be guilty of statutory burglary . . . ." Code § 18.2-90 provides that a person "shall be deemed guilty of statutory burglary" when that "person in the nighttime enters without breaking . . . or at any timebreaks and enters" a dwelling. Sumner argues the trial court erred in finding the evidence sufficient to support his conviction of statutory burglary because the Commonwealth did not prove:

(1) That Sumner committed a breaking into the apartment; (2) That Sumner entered the apartment contrary to the will of [K.T.]; (3) that Sumner entered the apartment with the specific intent to commit a felony or assault and battery at the time he entered the home; (4) and that Sumner committed an overt act towards completing a felony or assault and battery.

"When considering the sufficiency of the evidence, we will only reverse when the trial court's judgment was plainly wrong or without evidence to support it." Brittle v. Commonwealth, 54 Va. App. 505, 511, 680 S.E.2d 335, 338 (2009). Further, a fact finder's resolution of conflicting facts, as well as competing inferences, receives "the highest degree of appellate deference." Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006); Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995) ("The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented.").²

I. SUMNER COMMITTED A BREAKING

Sumner first argues that the Commonwealth failed to show there had been a "breaking."³

To establish a breaking for the purposes of burglary, the Commonwealth need only "show the application of some force, slight though it may be, whereby the entrance is [achieved].

Merely pushing open a door . . . is sufficient to constitute this element of [burglary], so long as those acts resulted in an entrance contrary to the will of the occupier of the [property]."

Beck v. Commonwealth, 66 Va. App. 259, 269, 784 S.E.2d 310, 315 (2016) (quoting Finney v. Commonwealth, 277 Va. 83, 88, 671 S.E.2d 169, 172 (2009) (alterations in original)).

Here, testimony from the houseguests and K.T. showed Sumner did break and enter the dwelling. After Sumner had been pushed out of the house by the male houseguest, the door was partially closed behind him. Sumner fired several shots through the door into the dwelling. He then reentered the home through the partially closed door to attack the male houseguest.⁴ The evidence supports the trial court's finding that Sumner committed a breaking when he entered through the partially closed front door.

II. SUMNER DID NOT HAVE K.T.'S CONSENT TO ENTER

Sumner argues that the Commonwealth did not prove he entered the dwelling without K.T.'s consent. "'The presence of consent is a factual question to be determined by the trier of fact' based on the totality of the circumstances, and we reverse a trial court's decision regarding the presence of consent only when it is plainly wrong." Hawkins v. Commonwealth, 65 Va. App. 101, 107, 774 S.E.2d 492, 495 (2015) (quoting Jean-Laurent v. Commonwealth, 34 Va. App. 74, 79, 538 S.E.2d 316, 318 (2000)).

Here, although Sumner argues that K.T. gave consent for him to enter the dwelling when he first arrived, he does not argue from the evidence that K.T. gave him consent to enter the home the second time, after he had fired into the dwelling. The door was at least partially closed when Sumner fired several shots through the door. Sumner did not produce evidence that K.T. gave consent for his reentry into the home. On the contrary, K.T., who was called as a defensewitness, testified during cross-examination that she and the female houseguest were trying to close the door after the male houseguest pushed Sumner outside. K.T. testified that she struggled to get the door closed because a shoe was caught in the doorway, preventing her from closing the door all the way. Accordingly, the court did not err in rejecting Sumner's argument that K.T. gave Sumner consent to re-enter her home.

III. SUMNER INTENDED TO COMMIT ASSAULT AND BATTERY

Sumner next argues that the Commonwealth failed to show that he entered the dwelling with the intent to commit assault and battery. "Whether the required intent exists is generally a question of fact for the trier of fact." Becker v. Commonwealth, 64 Va. App. 481, 491, 769 S.E.2d 683, 688 (2015) (quoting Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977)). "Intent in fact is the purpose formed in a person's mind and may be, and frequently is, shown by circumstances." Id. (quoting Abdo v. Commonwealth, 64 Va. App. 468, 475, 769 S.E.2d 677, 680 (2015)). "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, 20 Va. App. at 138, 455 S.E.2d at 732.

Here, Sumner again focuses his argument on his first entry into the home. Regardless of whether there was the requisite intent shown for Sumner's first entry into the home, the evidence was sufficient to show...