                     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 -
