                             COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Kelsey
Argued at Richmond, Virginia


CLIFFORD HENRY MENEFEE, III
                                                             MEMORANDUM OPINION* BY
v.     Record No. 3188-02-2                                   JUDGE D. ARTHUR KELSEY
                                                                 FEBRUARY 17, 2004
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF ORANGE COUNTY
                                Daniel R. Bouton, Judge

               John R. Maus for appellant.

               Margaret W. Reed, Assistant Attorney General (Jerry W. Kilgore,
               Attorney General, on brief), for appellee.


       The appellant, Clifford H. Menefee, argues that the trial court lacked sufficient evidence

to find him guilty beyond a reasonable doubt of burglary under Code § 18.2-91. Finding the

evidence sufficient to support the conviction, we affirm.

                                                 I.

       On appeal, we review the evidence in the “light most favorable” to the Commonwealth.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003) (citation omitted).

That principle requires us to “discard the evidence of the accused in conflict with that of the

Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and

all fair inferences that may be drawn therefrom.” Kelly v. Commonwealth, 41 Va. App. 250,

254, 584 S.E.2d 444, 446 (2003) (en banc) (citation omitted).



       * Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       On the evening of July 3, 2001, Tonya Hovey and her two young daughters fell asleep

while watching television in the living room of their apartment. Before falling asleep, Hovey

closed and locked all of the windows and doors to the apartment, with the exception of the front

door, which she closed but forgot to lock. Reclined on her couch, Hovey fell asleep clothed in

only a t-shirt and underwear, with a blanket covering her body. Her daughters slept next to her.

Her one-year-old son slept in his crib in an adjacent bedroom.

       Hovey awoke shortly before midnight, sensing that there was “someone looking at me.”

Hovey looked up and saw Menefee “leaning over the back of my couch at waist line.” He was

“standing over top” of Hovey with not “much distance” between them. Smelling and appearing

as if he had been drinking, Menefee asked her “are you going to let me eat that thing?” There

was no food near her. Hovey interpreted Menefee’s statement as a request to perform oral sex.

“No,” Hovey replied.

       Hovey asked Menefee how he entered her apartment. Menefee claimed that he entered

the front door only after Hovey “had gotten up and let him in.” That’s “not true,” Hovey

responded. Menefee then changed his story and claimed Hovey “hollered” to him to “come in.”

After Hovey refuted that assertion, Menefee said, “well somebody did.”

       Hovey demanded to know how long Menefee had been in her apartment. Twenty

minutes, he replied. He then asserted that she “had told him to come in and sit down and wait for

[her] children to go to sleep, and that [she] would be with him.” Hovey then told Menefee that

she “was going to call the police.” She also said she “worked for the sheriff’s office” and knew

that “rape was not something that they considered lightly.” Menefee left. Hovey checked on her

sleeping children and then called the police.

       Officer Randy Burnett of the Town of Orange Police Department interviewed Menefee

shortly after he returned to his apartment. Menefee first said he had been inside his own


                                                -2-
apartment “all night long.” Admitting that he was drunk, Menefee changed his story and told

Burnett that “he’d gone out earlier in the evening” and had stopped to visit a friend at Oakbrook

Apartments. Continuing, Menefee then claimed that he “stopped at two apartments and then he

had stopped at three apartments.” Upon additional questioning, Menefee admitted that the third

apartment he visited was Hovey’s. After Burnett had Hovey identify Menefee, Burnett brought

Menefee to the police station and placed him under arrest for statutory burglary.

       At the police station, Menefee continued to give inconsistent versions of what happened

that night. Menefee again asserted that he had been invited into Hovey’s apartment. He claimed

he entered the apartment and found Hovey and her children asleep. He watched them for “ten

minutes” before Hovey “jumped up and asked him what he was doing there.” According to

Menefee, Hovey told him her “daughter must have told [him] to come in.” Menefee then,

“without being prompted by a question” by Officer Burnett, spontaneously added, “I didn’t touch

her.” During further questioning, Menefee claimed Hovey “woke up” just as he “got up to

leave.” He then explained that he had not “pre-planned” what he was going to do, but “just took

a chance.”

       At trial, Hovey testified that she had seen Menefee around the apartment complex for

“about two years or so.” Menefee had never been a guest at her apartment, Hovey said, nor was

he invited on the night in question. During that two-year period, Menefee had verbally harassed

Hovey by “holler[ing] out” comments about her “butt” or “legs” or “something of that nature.”

“He was constantly doing it,” she explained. She never said anything in reply. Once while

sunbathing at a community pool, Hovey observed Menefee directing a “lewd tongue gesture”

toward her, which she interpreted as a reference to “oral sex.” Hovey also explained that she

would have found any touching by Menefee to be “very offensive.”




                                               -3-
       Menefee took the stand at trial and testified that he knocked on Hovey’s door and heard a

woman’s “voice” telling him to “come in.” He entered the apartment and found Hovey and her

daughters asleep. He did not know where the voice came from. He admitted to being

“intoxicated” and having a “bipolar” mental condition that causes him to hear “voices” urging

him to “do dumb stuff like to hurt somebody.” During this particular time frame, he claimed, he

was experiencing “mental trauma” but did not hear “that kind of voice that night.”

       Menefee also testified that Hovey “jumped straight up in the air” when she first saw him.

After she ordered him out of her apartment, Menefee said he concluded, “maybe, you know,

well, I was wrong” about being invited in, so he left. The whole encounter lasted only “a few

minutes,” he claimed. As for the crude remark about oral sex, Menefee explained: “I’m not

really sure if I said that,” but he “could have.” And even if he did say it, Menefee claimed, “I

don’t know what I would have been talking about.”

       On cross-examination, Menefee testified he could not recall telling Officer Burnett that

he had been in his own apartment all that evening. But “I may have,” Menefee admitted.

Menefee also denied making any lewd tongue gestures to Hovey. “I do lick my lips a lot,” he

admitted.

       Menefee conceded that he had been convicted of two or three felonies and had been twice

found guilty of “crimes involving lying, cheating or stealing.”

       Following the presentation of the evidence, Menefee moved to strike the

Commonwealth’s evidence. The trial court denied the motion and found Menefee guilty of

statutory burglary in violation of Code § 18.2-91. The court explained its reasoning this way:

               The Court has listened very carefully to the evidence in the case.
               The Court carefully observed the demeanor of all of the witnesses
               who testified. The Court observed them on the witness stand, took
               into account their demeanor and their testimony and their
               relationship to the case and evaluated all of the factors that go into
               a credibility analysis. The first observation the Court will make is

                                                -4-
                 that it believes completely and accepts in its entirety all of the
                 testimony that was given by Ms. Hovey regarding the incident.
                 The Court listened to her description of how the matter took place
                 and the Court, without reservation, simply believes everything she
                 said about it. In addition, the Court believes what the officer had
                 to say about his investigation into the incident and about what the
                 defendant said to him regarding the incident itself, and to the
                 extent that the defendant’s testimony differs from or contradicts
                 the testimony that was given by Ms. Hovey and Officer Burnett,
                 the Court simply rejects the testimony of the defendant based on its
                 analysis of the evidence.

          The trial court also noted the evidence concerning Menefee’s “mental state” and the

influence of “voices” urging him to “hurt people.” The court found Menefee’s testimony about

being invited into the apartment to be untruthful, noting that he gave “several versions of his

activities that night, which contradict one another,” and gave “numerous inconsistencies about

what happened regarding the incident with Ms. Hovey.” Assuring Menefee’s counsel that he

was “mindful of the argument made on the question of intent,” the trial judge found Menefee

guilty and sentenced him to a twelve-year prison term, with six years suspended.

                                                   II.

          When faced with a challenge to the sufficiency of the evidence, we “presume the

judgment of the trial court to be correct” and reverse only if the trial court’s decision is “plainly

wrong or without evidence” to support it. Kelly, 41 Va. App. at 257, 584 S.E.2d at 447 (citations

omitted). Under this standard, a trial judge’s factual findings cannot be disturbed on appeal

unless no “rational trier of fact” could have come to the conclusions he did. Id. (quoting Jackson

v. Virginia, 443 U.S. 307, 319 (1979)); Holmes v. Commonwealth, 41 Va. App. 690, 691, 589

S.E.2d 11, 11 (2003); Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387

(2003).

          Under this standard, a reviewing court does not “ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 318-19

                                                  -5-
(emphasis in original and citation omitted). It asks instead whether “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Kelly, 41

Va. App. at 257, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319 (emphasis in original)).

“This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic

facts to ultimate facts.” Id. It also ensures that we remain faithful to our duty “not to substitute

our judgment for that of the trier of fact, even were our opinion to differ.” Crowder, 41 Va. App.

at 663 n.1, 588 S.E.2d at 387 n.1 (citations and internal quotation marks omitted).

        In addition, a trial judge sitting as factfinder is “presumed to know the law and to apply it

correctly in each case.” Crest v. Commonwealth, 40 Va. App. 165, 172 n.3, 578 S.E.2d 88, 91

n.3 (2003); see also Shenk v. Shenk, 39 Va. App. 161, 169, 571 S.E.2d 896, 900 (2002). Unless

that presumption is rebutted, the very fact of a conviction necessarily implies that the trial judge

decided all legally relevant factual disputes against the defendant. It follows, then, that “a

reviewing court ‘faced with a record of historical facts that supports conflicting inferences must

presume — even if it does not affirmatively appear in the record — that the trier of fact resolved

any such conflicts in favor of the prosecution, and must defer to that resolution[.]’” Wright v.

West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326)).

                                                  III.

        The trial court found Menefee guilty under Code § 18.2-91. That statute defines statutory

burglary as, among other things, the commission of “any of the acts mentioned in § 18.2-89 or

§ 18.2-90” (which includes unauthorized entries of a dwelling at night) with “the intent to

commit assault and battery.” See generally Turner v. Commonwealth, 33 Va. App. 88, 92-93,

531 S.E.2d 619, 621 (2000). The actus reas of this particular version of burglary involves an

unlawful entry of a dwelling at night. See generally Roger D. Groot, Criminal Offenses &


                                                  -6-
Defenses in Virginia 107-18 (2004). The mens rea includes the intent to unlawfully enter,

coupled with the then-present intent to commit an assault and battery. Id. Without that coupled

intent, “the act is a trespass only.” 4 William Blackstone, Commentaries on the Law of England

*227 (1769).

                                                 A.

       On the entry issue, Menefee concedes that the evidence proved he entered Hovey’s

apartment without her permission and “contrary” to her will. Robertson v. Commonwealth, 31

Va. App. 814, 821, 525 S.E.2d 640, 644 (2000) (citing Davis v. Commonwealth, 132 Va. 521,

523, 110 S.E. 356, 357 (1922)). He claims he nevertheless had a “good faith claim of right” to

enter her apartment because the trial court expressly accepted as a fact that he heard a “voice”

inviting him into Hovey’s apartment. Menefee finds this alleged factual finding implicit in the

trial judge’s remark that he accepted as true what “the officer had to say about his investigation

into the incident and about what the defendant said to him regarding the incident itself . . . .”

       In our opinion, Menefee’s interpretation of the trial judge’s remark distorts its intended

meaning. In context, the trial judge was not saying he believed Menefee was telling the truth

when he spoke to Officer Burnett — but, rather, that he believed Burnett was telling the truth

“about what” Menefee said to him. And what Menefee told Burnett involved a patent

inconsistency. Menefee first claimed he had been in his own apartment “all night long.” He

later claimed an unidentified woman’s “voice” told him to “come in” the apartment. Both

assertions stand in contrast to his earlier, equally inconsistent, claim (made directly to Hovey)

that she “had gotten up and let him in” and “had told him to come in and sit down and wait for

[her] children to go to sleep, and that [she] would be with him.” The court rejected as untruthful

Menefee’s multiple versions of what happened that night, finding that they “contradict one

another” and contain “numerous inconsistencies.” Menefee’s credibility also suffered from the

                                                 -7-
fact that, by his own admission, he was an “intoxicated” felon experiencing “mental trauma”

caused by his “bipolar” psychiatric condition.

       Under these circumstances, the trial court had ample reason to disbelieve that Menefee

heard any voice — whether real or imagined — inviting him into Hovey’s apartment. In its role

as factfinder, the trial court may discount a defendant’s “self-serving explanation as a mere effort

at ‘lying to conceal his guilt.’” Dugger v. Commonwealth, 40 Va. App. 586, 594 n.2, 580 S.E.2d

477, 481 n.2 (2003) (quoting Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899,

907 (2001)). A factfinder may also find a defendant’s falsehoods “probative to show he is trying

to conceal his guilt, and thus is evidence of his guilt.” Dugger, 40 Va. App. at 594 n.2, 580

S.E.2d at 481 n.2 (citations omitted); see also Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 147 (2000) (recognizing “general principle of evidence law that the factfinder is

entitled to consider a party’s dishonesty about a material fact as ‘affirmative evidence of guilt’”);

Wright, 505 U.S. at 296 (holding that factfinder in criminal cases may consider the accused’s

false explanations as “affirmative evidence of guilt”). These principles naturally follow from the

broader observation that “whenever a witness testifies, his or her credibility becomes an issue.”

Hughes v. Commonwealth, 39 Va. App. 448, 462, 573 S.E.2d 324, 330 (2002) (citation omitted).

                                                 B.

        On the coupled intent issue, two legal principles guide our review of the trial court’s

factfinding. First, by entering Hovey’s apartment without her permission, it can be presumed

that Menefee did so “for an unlawful purpose.” Scott v. Commonwealth, 228 Va. 519, 524, 323

S.E.2d 572, 575 (1984) (citing Ridley v. Commonwealth, 219 Va. 834, 836, 252 S.E.2d 313, 314

(1979)). Second, statutory burglary focuses solely on the defendant’s intent at the time of the

entry, not his purpose once inside. See Bruce v. Commonwealth, 22 Va. App. 264, 270, 469

S.E.2d 64, 67 (1996) (recognizing that burglary requires that “the intent to commit the

                                                 -8-
substantive crime therein is concomitant with the breaking and entering”). If the coupled intent

exists at the time of entry, it makes “no difference that this purpose was not achieved,” 3 W.

LaFave, Substantive Criminal Law § 21.1(e), at 219 (2d ed. 2003), or whether the intended act

“be actually perpetrated or not,” Blackstone, Commentaries *227.

       Guided by these two principles, we turn to the specific coupled intent found by the trial

court: the intent to commit an assault and battery. “An assault and battery is the unlawful

touching of another” that is neither consented to, justified, nor excused. Perkins v.

Commonwealth, 31 Va. App. 326, 330, 523 S.E.2d 512, 513 (2000); see also Gnadt v.

Commonwealth, 27 Va. App. 148, 151, 497 S.E.2d 887, 888 (1998). “The law upon the subject

is intended primarily to protect the sacredness of the person, and, secondarily, to prevent

breaches of the peace.” Banovitch v. Commonwealth, 196 Va. 210, 219, 83 S.E.2d 369, 374

(1954) (citations omitted).

       There is no doubt that, at the moment Menefee entered Hovey’s apartment, shortly before

midnight, he hoped to touch Hovey in a sexual manner. To use his own words, he “just took a

chance” that night. The only issue, then, is whether he entered with the intent to sexually touch

her in a manner that would constitute an assault and battery. We find nothing plainly wrong

about the trial court’s findings on this issue. Menefee and Hovey were not friends. They had

never had a conversation, never been over to each other’s apartments, and never had any social

relationship. Their only prior interactions were the few occasions where he harassed her with

lewd gestures and remarks. Menefee entered her apartment, drunk and uninvited, in the middle

of the night while she and her children slept. Hovey awoke and found him standing over her

crotch in a menacing position. Menefee’s first words were sexual and, under the circumstances,

no doubt intimidating to Hovey. He left her apartment only after she threatened to call the police

and warned him of the consequences of raping her. Then, when questioned by the police,


                                               -9-
Menefee gave a series of prevaricating stories that further underscored his guilt. Compounding

all of this is the fact that Menefee, according to his own testimony, heard voices urging him to

“hurt” people. These facts, in aggregate, provide a rational basis for concluding that Menefee

entered Hovey’s apartment with the intent to commit an assault and battery.

                                                IV.

       The trial court did not err in finding that Menefee unlawfully entered Hovey’s apartment

at night with the intent to commit an assault and battery. We thus affirm his conviction for

statutory burglary under Code § 18.2-91.

                                                                                         Affirmed.




                                              - 10 -
