                        COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia


FRANK WILLIAM FREEMAN
                                            MEMORANDUM OPINION * BY
v.   Record No. 0796-02-3                JUDGE JEAN HARRISON CLEMENTS
                                                 JUNE 10, 2003
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
                       Joseph W. Milam, Jr., Judge

             S. Jane Chittom, Appellate Defender (Public
             Defender Commission, on briefs), for
             appellant.

             Kathleen B. Martin, Assistant Attorney
             General (Jerry W. Kilgore, Attorney General,
             on brief), for appellee.


     Frank William Freeman was indicted for burglary, in violation

of Code § 18.2-89, and grand larceny, in violation of Code

§ 18.2-95.    He was convicted in a bench trial of trespass, in

violation of Code § 18.2-119, and grand larceny, as charged.      On

appeal, Freeman contends the trial court erred in (1) convicting

him of statutory trespass on an indictment charging burglary and

(2) finding the evidence sufficient to prove grand larceny.

Finding no error, we affirm Freeman's convictions.

     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, this opinion recites only those facts and incidents of the

proceedings as are necessary to the parties' understanding of the

disposition of this appeal.

                           I.   BACKGROUND

       Under familiar principles of appellate review, we view the

evidence and all reasonable inferences fairly deducible from

that evidence in the light most favorable to the Commonwealth,

the party that prevailed below.    See Dowden v. Commonwealth, 260

Va. 459, 461, 536 S.E.2d 437, 438 (2000).

       So viewed, the evidence establishes that Glostrice Deshazor

lived with her daughter, Jada Walton, and Walton's

four-and-one-half-year-old son, Sydney, in Apartment 2B of

Southside Gardens Apartments at 145 Levelton Street in the City

of Danville.   Freeman was employed as a maintenance man for the

apartment complex and had a master key.

       Prior to going to bed at approximately 8:30 p.m. on

November 2, 2001, Deshazor placed $268 in her purse.      The purse

was on a chair under the kitchen table.      Walton had given her

mother the money that day as reimbursement for Walton's portion

of the month's rent.   Deshazor saw three bottles of her

medications on the kitchen table that evening before going to

bed.   The front door of the apartment was locked.

       Upon entering the apartment, the living room was to the

left and the kitchen was to the right.       The bedroom was to the

rear of the apartment beyond the living room-kitchen area.

                                - 2 -
Sydney's tricycle had been left near the front door of the

apartment.

     Shortly after midnight on November 3, 2001, all three

residents of the apartment were in the bedroom.   Deshazor and

Sydney were asleep in bed, and Walton was lying at the foot of

the bed watching television.   At that time, Walton heard the

tricycle rattle as the front door opened.   Walton asked who was

there, and Freeman responded, "Frank, the maintenance man."

Freeman had used his key to gain entry into the locked

apartment.   Although Walton and Deshazor had had some problems

in the past with their smoke alarm, neither had requested any

maintenance work that required Freeman to be at their apartment

in the middle of the night.

     Freeman went into the bedroom, dangled his keys in

Deshazor's face and called her name.    Deshazor, awakened by

Walton, sat up on the bed.    Freeman said, "We're family.

Today's my birthday."   Freeman then asked Deshazor for money.

Deshazor had no money with her.   Walton went to the hall closet,

got $5, gave it to Freeman, and told him "to get the hell out of

[her] apartment."

     After Freeman left, Walton relocked the front door.     She

then called Freeman's wife, Walton's co-worker at a local store,

and told her what had happened.   Walton then called the police,

and a uniformed officer responded.



                                - 3 -
     At approximately 7:00 a.m. that morning, Deshazor

discovered that the $268 in cash had been taken from her purse

and her medications on the kitchen table were missing.      Deshazor

and Walton again called the police.

     Tammy Surratt, manager of the Southside Gardens Apartments,

testified that, in addition to Freeman, the maintenance

supervisor and a painter who worked for the company also had

master keys.   All three were authorized to work at night on

Apartment 193 on the other side of the complex, but only after

notifying her.   No one had reason to go to the victims'

apartment after midnight unless called by the residents for an

emergency, Surratt said.

     Freeman was indicted for burglary, in violation of Code

§ 18.2-89, and grand larceny, in violation of Code § 18.2-95.    He

was convicted in a bench trial of trespass, in violation of Code

§ 18.2-119, and grand larceny, as charged.

     This appeal followed.

                      II.   TRESPASS CONVICTION

     Freeman contends his trespass conviction is invalid because

trespass, in violation of Code § 18.2-119, is not a

lesser-included offense of common-law burglary under Code

§ 18.2-89.   Relying on Lowe v. Commonwealth, 33 Va. App. 583, 535

S.E.2d 689 (2000), Freeman further claims his failure to object to

the trial court's sua sponte ruling does not preclude him from

raising this issue for the first time on appeal.

                                - 4 -
     It is well settled that, "[u]nless an indictment is amended

to conform to the proof or an accused acquiesces in being found

guilty of an offense other than the one charged, a trial court

lacks the authority to find an accused guilty of an offense

other than the one charged or a lesser included offense." 1

Fontaine v. Commonwealth, 25 Va. App. 156, 165, 487 S.E.2d 241,

245 (1997).    "The lack of authority of the trial court to render

the judgment that it did may be raised at any time and by this

Court on its own motion."   Id.

     The Commonwealth conceded at oral argument that statutory

trespass, in violation of Code § 18.2-119, is not a

lesser-included offense of common-law burglary under Code

§ 18.2-89.    The Commonwealth contends, however, that Freeman

acquiesced in his conviction of trespass.   The trial court's

action of reducing the burglary charge to trespass was not done

sua sponte, the Commonwealth argues, but rather in response to

Freeman's agreement in a discussion with the Commonwealth and

trial court during closing argument that, if the court did not

believe the evidence was sufficient to convict Freeman of the

charged offense of burglary, he could still be found guilty of

trespass.    Moreover, the Commonwealth continues, when the trial

court found Freeman guilty of trespass, Freeman did not object.


     1
       The Commonwealth does not suggest on appeal, nor does the
record show, that Freeman's indictment for burglary was amended
by the trial court to reflect the offense of trespass.


                                  - 5 -
     Freeman claims that, throughout the trial, he argued merely

that the evidence was insufficient to prove beyond a reasonable

doubt the charges of burglary and larceny.    He did not, he

asserts, ask that the burglary charge be reduced to trespass or

tell the trial court it was proper to do so.    The trial court's

decision to reduce the burglary charge to trespass, he argues,

occurred sua sponte.   Alternatively, Freeman maintains, if anyone

suggested to the trial court that the charge could be reduced, it

was the attorney for the Commonwealth alone who did so.

     The record in this case establishes that prior to ruling on

the issue of Freeman's guilt, the trial court expressed doubts

about the sufficiency of evidence to prove both of the charged

offenses.   The trial judge also stated his concern that "it would

be irreconcilably incongruent to convict on one and not on the

other."   The following colloquy then occurred:

            THE COURT: [I]f I believe that the defendant
            was guilty of the entering with the . . .

            [PROSECUTOR]: Well, Judge, actually I think
            the burglary . . .

            [DEFENSE COUNSEL]:   That's two separate
            things.

            [PROSECUTOR]:   . . . hinges . . . hinges on
            the larceny.

            [DEFENSE COUNSEL]:   Larceny.

            [PROSECUTOR]: If you believe that he
            committed the larceny, then . . .

            [DEFENSE COUNSEL]: You can say . . . and for
            the burglary, but you've got to . . .

                                 - 6 -
[PROSECUTOR]: . . . you have . . . you would
have to convict him of the burglary.

THE COURT:   Right.

[PROSECUTOR]: If you don't believe he
committed the larceny . . .

[DEFENSE COUNSEL]: Larceny . . . proof
beyond a reasonable doubt.

[PROSECUTOR]: . . . then it falls back to
misdemeanor trespass.

[DEFENSE COUNSEL]: And that's why . . . it
could be a trespass, and still not be a grand
larceny . . . it's proof beyond a reasonable
doubt.

THE COURT:   Right.   I understand.

[DEFENSE COUNSEL]:    Circumstantial evidence.

THE COURT:   Let me think about it.

[DEFENSE COUNSEL]:    Yes sir.

THE COURT:   Give me . . . give me just a few
minutes.

[PROSECUTOR]:   Okay.

THE COURT: (After a brief pause, the cases
continued, as follows) All right, I'm ready.
Here's what I'm going to do . . . I'm going
to . . . after considering the evidence . . .
here's what I've decided on the reasonable
doubt aspect. I am going to find the
defendant guilty of grand larceny as charged
in Indictment No. 2, and I am going to find
him guilty of trespass on Indictment No. 1.
And the reason is, is because there is a
possibility that he did not have the intent
to commit larceny when he came in . . . that
he had the intent to borrow money or ask for
money, and then when he saw the pocketbook on




                        - 7 -
            the way out, he took the money, and that's
            . . . and I'm convinced he took the money.

            [DEFENSE COUNSEL]:   Thank you, Your Honor.

     "Acquiescence requires something more than a mere failure to

object."    Lowe, 33 Va. App. at 589, 535 S.E.2d at 692.   Likewise,

a mere statement or question to the judge seeking to clarify that

one's conviction is for a misdemeanor rather than a felony for

which he was indicted does not constitute acquiescence.    See

Fontaine, 25 Va. App. at 165, 487 S.E.2d at 244.    However,

"[w]here the defendant asks for a reduced or less serious

disposition of a felony charge, a different result will obtain."

Id. at 163, 487 S.E.2d at 244.

     Here, it is clear the trial judge had concerns about whether

the Commonwealth's evidence was sufficient to prove the burglary

and grand larceny charges.   It is also clear that, in injecting

the offense of trespass into the brusquely flowing, fast-moving

discussion, the Commonwealth and Freeman led the trial court to

believe that, if the evidence was not sufficient to convict

Freeman of burglary, the court could properly convict him of

trespass.   Freeman's participation in that discussion manifested a

willingness to be convicted of trespass.    Indeed, following the

Commonwealth's reference to "misdemeanor trespass," Freeman's

counsel agreed that "it could be a trespass."    Relying on the

option it believed had been proposed by both parties, the trial

court found Freeman guilty of trespass and grand larceny.      At that


                                 - 8 -
point, rather than raising a specific objection to the court's

ruling and clarifying its position, the defense, willing to accept

a gift to which it was not entitled, merely thanked the court and

asked that its exception to the court's overall ruling be noted.

     We conclude that, by suggesting to the trial court that he

could be found guilty of a less serious crime than the felony for

which he was charged, Freeman invited the trial court's action.

Furthermore, once the trial court took the action it had been

invited to take, Freeman assented to it.    "'The defendant, having

agreed upon the action taken by the trial court, should not be

allowed to assume an inconsistent position.'"    Manns v.

Commonwealth, 13 Va. App. 677, 679, 414 S.E.2d 613, 615 (1997)

(quoting Clark v. Commonwealth, 220 Va. 201, 214, 257 S.E.2d 784,

792 (1979)).

     We hold, therefore, that Freeman acquiesced in his conviction

for trespass.   Thus, the trial court had authority to find Freeman

guilty of statutory trespass and did not err in doing so.

                   III.    GRAND LARCENY CONVICTION

     When the sufficiency of the evidence is challenged on appeal,

we view 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).    "In so doing, we must discard

the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence

                                 - 9 -
favorable to the Commonwealth and all fair inferences that may be

drawn therefrom."   Watkins v. Commonwealth, 26 Va. App. 335, 349,

494 S.E.2d 859, 866 (1998).   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."    Crawley v. Commonwealth, 29

Va. App. 372, 375, 512 S.E.2d 169, 170 (1999).   We will 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).

     Freeman contends the Commonwealth failed to prove beyond a

reasonable doubt that he was guilty of grand larceny.

Specifically, he argues the evidence presented at trial was

insufficient to show he took or carried away money from Glostrice

Deshazor's purse that was on a chair under the kitchen table or

three bottles of her medications that were on the kitchen table.

Furthermore, he adds, no stolen goods were found in his possession

and he made no confession or incriminating statements.   Freeman

further contends the Commonwealth's evidence was circumstantial

and merely showed that he had the opportunity to commit larceny.

The evidence did not, he asserts, exclude every reasonable

hypothesis except that of guilt, specifically, the "reasonable

possibility" that someone else who had access to the apartment

committed the larceny.



                                - 10 -
     To convict Freeman of grand larceny, the Commonwealth had to

prove that he unlawfully took property valued at over two hundred

dollars belonging to Glostrice Deshazor with the intent to

permanently deprive her thereof.   See Code § 18.2-95(ii).   Motive,

time, place, means, and conduct must establish beyond a reasonable

doubt that Freeman was the perpetrator of the crime.   See Inge v.

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 568 (1976).

     Viewed in the light most favorable to the Commonwealth, the

evidence in this case showed that Freeman used his master key to

enter the victims' locked apartment shortly after midnight.

Although he was a maintenance man at the apartment complex,

neither Deshazor nor Walton had made any maintenance requests

that required his presence at that hour.    Freeman gave the two

women no maintenance-related reason for his entry.     Indeed,

Freeman did not identify himself until Walton, who had heard his

unauthorized entry, asked who was there.    After walking into the

bedroom, Freeman made some incoherent statements and demanded

money.   After obtaining $5, Freeman left when Walton ordered him

to get out of the apartment.   Walton then relocked the door.

Money in a purse on a kitchen chair and three bottles of

medications that had been on the kitchen table at 8:30 in the

evening, were discovered missing at 7:00 a.m. the next morning.

The kitchen was located to the right of the front entrance, and

the bedroom to the rear of the apartment.



                               - 11 -
     The trial court, which had the opportunity to hear and

observe the witnesses on the stand and weigh the evidence

accordingly, could reasonably infer from this evidence that

Freeman was responsible for the larceny of the money and

medications.

     As to Freeman's argument that the Commonwealth's evidence

was purely circumstantial and that it merely showed he had the

opportunity to steal the money and medications but failed to

exclude every reasonable hypothesis of innocence, our review of

the record convinces us that this contention is without merit.

"Circumstantial evidence is as competent and is entitled to as

much weight as direct evidence, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of

guilt."   Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d

864, 876 (1983).   "However, '[t]he Commonwealth need only

exclude reasonable hypotheses of innocence that flow from the

evidence, not those that spring from the imagination of the

defendant.'    Whether an alternative hypothesis of innocence is

reasonable is a question of fact and, therefore, is binding on

appeal unless plainly wrong."    Archer v. Commonwealth, 26

Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997) (citation omitted)

(quoting Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433

S.E.2d 27, 29 (1993)).

     Freeman argues that another maintenance man and a painter

who worked for the apartment complex both had master keys and,

                                - 12 -
therefore, had access to the apartment and the stolen items.

However, there was no evidence that either person entered the

locked apartment between 8:30 p.m. and 7:00 a.m., the period of

time during which the property was stolen.   The trial court also

considered and discounted Freeman's hypothesis that Walton

herself had stolen the property from her mother.   The trial

court found it probative that the two women would call the

police immediately after Freeman left, corroborate it further by

a phone call to Freeman's wife, but not report the theft until

the next day.   We conclude from this evidence, as did the trial

court, that the only reasonable hypothesis flowing from the

evidence in this case is that Freeman took the $268 from

Deshazor's purse and her medications from the table during his

unlawful midnight entry into the victims' apartment.

     For these reasons, we hold that the evidence presented in

this case sufficiently supports Freeman's conviction of grand

larceny and that the conviction is not plainly wrong.

     Accordingly, we affirm Freeman's convictions of statutory

trespass and grand larceny.

                                                        Affirmed.




                              - 13 -
