                  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.


     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


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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.


                               - 4 -
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

                                - 5 -
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

                                 - 6 -
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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