                    COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Lemons and Frank
Argued at Norfolk, Virginia


BRUCE ALAN WELCH
                                           MEMORANDUM OPINION * BY
v.   Record No. 1232-98-1                  JUDGE DONALD W. LEMONS
                                              NOVEMBER 16, 1999
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                      Robert W. Curran, Judge

            Karen M. Vannan (Lasris & Vannan, PLC, on
            brief), for appellant.

            Shelly R. James, Assistant Attorney General
            (Mark L. Earley, Attorney General; Ruth M.
            McKeaney, Assistant Attorney General, on
            brief), for appellee.


     The appellant, Bruce Alan Welch, was convicted in a bench

trial of:    (1) the use or display of a firearm while in the

commission of a burglary in violation of § 18.2-53.1;

(2) discharging a firearm within an occupied dwelling in

violation of Virginia Code § 18.2-279; (3) assault and battery

in violation of Virginia Code § 18.2-57; and (4) breaking and

entering in the nighttime with intent to commit assault and

battery while armed with a deadly weapon in violation of

Virginia Code § 18.2-91.




     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     Only two of these four convictions are before this Court on

appeal.   Welch contends there was insufficient evidence to

convict him of using or displaying a firearm in the commission

of a burglary and there was insufficient evidence to convict him

of discharging a firearm in an occupied dwelling.   We disagree

and affirm both convictions.

                          I.   BACKGROUND

     Where the sufficiency of the evidence is an issue on

appeal, an appellate court must view the evidence and all

reasonable inferences fairly deducible therefrom in the light

most favorable to the Commonwealth.    See Cheng v. Commonwealth,

240 Va. 26, 42, 393 S.E.2d 599, 608 (1990) (citations omitted).

Unless that finding is plainly wrong, or without evidence to

support it, it shall not be disturbed on appeal.    See Code

§ 8.01-680; George v. Commonwealth, 242 Va. 264, 278, 411 S.E.2d

12, 20 (1991).

     So viewed, the evidence proved that at some time after

6:00 p.m. on February 5, 1997, Welch took his shotgun and some

shells and drove to the home of his former wife, Fannie Simmons,

and her husband, Timothy Simmons.   He was wearing gloves.     At

approximately 9:50 p.m., Timothy and Fannie Simmons were home

with Jordan Welch, the three-year-old daughter of Fannie and the

appellant.   Fannie looked out of the window at that time and

recognized Welch's truck in the parking lot.



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     A few minutes later, she heard banging against her

apartment door.    The door was dead-bolted and locked, but she

still moved toward the door to hold it shut.   She heard "a

really loud noise" and smelled "something burning" and then,

with "a really loud cracking noise," the door gave way.     At

trial, Fannie demonstrated for the court how Welch was holding

the shotgun when she saw him.   She stated, "He had it like this

(Indicating) when he came through the door . . . ."   She

testified that Welch had one hand on the trigger and the other

toward the barrel and stood approximately one foot from her.

After the incident, there were several holes in the door, as

well as small holes in the living room wall.

     Fannie ran down the hallway toward the master bedroom,

screaming to her husband that Welch had a gun.   Timothy, who had

been in the bedroom, pushed Fannie into the closet and stood

behind the door to the room.    When Welch entered the bedroom,

Timothy kicked the door against him and simultaneously reached

for the shotgun.    A struggle followed, and Timothy shouted at

Welch to stop.    Welch responded by saying that it was all

Timothy's fault that Fannie left him and that "this is what is

going to happen."

     During the struggle, the gun discharged without injury to

Timothy, Fannie, Jordan or Welch.   When the gun discharged,

Timothy was on top of Welch with his right hand on the stock and

left hand on the barrel.   Fannie's hands were nowhere near the

                                - 3 -
trigger.   Both Fannie and Timothy testified that they did not

pull the trigger.

     At trial, the Commonwealth's expert testified that gun

residue was not found on Welch's gloves.        However, he also

testified that such residue might not be on the gloves even if

Welch had pulled the trigger.

       II.        USE OF A FIREARM IN THE COMMISSION OF BURGLARY

     Virginia Code § 18.2-53.1 states, "It shall be unlawful for

any person to use or attempt to use any pistol, shotgun, rifle,

or other firearm or display such weapon in a threatening manner

while committing or attempting to commit . . . burglary,

. . . ."   The evidence supports the finding that Welch displayed

the shotgun "when he came through the door."       It is not

necessary to address arguments that the shotgun was fired

through the door to gain entry.       The elements of burglary

include the requirement of an "entry."       Here the evidence is

sufficient to prove that the shotgun was displayed during the

entry of the premises.

       III.        DISCHARGING A FIREARM IN AN OCCUPIED DWELLING

     Virginia Code § 18.2-279 states in pertinent part:

             If any person maliciously discharges a
             firearm within any building when occupied by
             one or more persons in such a manner as to
             endanger the life or lives of such person or
             persons, . . . the person shall be guilty of
             a Class 4 felony.

              *        *      *      *      *       *      *


                                    - 4 -
           If any such act be done unlawfully, but not
           maliciously, the person so offending shall
           be guilty of a Class 6 felony . . . .

     Viewed in the light most favorable to the Commonwealth, the

evidence reveals that Welch came down the hall with one hand on

the barrel and the other hand on the trigger.      Welch's

statement, "this is all your fault that my wife left me and this

is what is going to happen," indicates intent to discharge the

shotgun.

     Additionally, Timothy Simmons testified that when the

struggle ensued, he had one hand on the stock and one hand on

the barrel.   Fannie Simmons testified that her hands were

"nowhere near the trigger."   Based on this evidence, the trial

court could find that Welch discharged the gun.     Welch's denial

that he pulled the trigger is a question left to the fact

finding function of the trial court.   See Montgomery v.

Commonwealth, 221 Va. 188, 190, 269 S.E.2d 352, 353 (1980)

("[E]ven if [the] defendant's story was not inherently

incredible, the trier of fact need not have believed the

explanation"); Rollston v. Commonwealth, 11 Va. App. 535, 547,

399 S.E.2d 823, 830 (1991) ("[The trier of fact] is not required

to accept in toto, an accused's statement, but may rely upon it

in whole, in part, or reject it completely."). 1


     1
       The lack of gunshot residue on Welch's hands is not
dispositive of the issue. The expert adequately explained that
residue might not be present even if Welch had pulled the
trigger.

                               - 5 -
     We cannot say that the trial judge was plainly wrong or

that the evidence is insufficient to sustain the verdict.

     Finding no error, the convictions are affirmed.

                                                  Affirmed.




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