Corbet L. Banks, etc. v. Commonwealth ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Overton
Argued at Richmond, Virginia
CORBET L. BANKS, S/K/A
CORBETT BANKS
MEMORANDUM OPINION * BY
v. Record No. 2640-95-2 JUDGE JAMES W. BENTON, JR.
JANUARY 7, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY
Buford M. Parsons, Judge
Stephen T. Harper (Bradford F. Johnson;
Johnson & Walker, P.C., on brief), for
appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Corbett Banks appeals from his convictions for attempted
breaking and entering with the intent to commit assault and
battery while armed, see Code §§ 18.2-26 and 18.2-91, and for use
of a firearm in the commission of the felony. See Code
§ 18.2-53.1. He contends that the evidence was insufficient to
prove the offenses beyond a reasonable doubt and that his
sentence of twenty years for the attempted statutory burglary
offense exceeded the allowable range. For the reasons that
follow, we uphold the convictions and remand for resentencing.
I.
When the evidence is viewed in the light most favorable to
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the Commonwealth, see Higginbotham v. Commonwealth, 216 Va. 349,
352, 218 S.E.2d 534, 537 (1975), the evidence proved that Mario
Peagram and several of his friends fought with Corbett Banks'
brother. The next day, Banks and his brother approached Rodney
Daniel and Joyce Mosley at Mosley's apartment and asked if they
had seen Peagram. Banks told Daniel that Peagram had beaten his
brother and that something bad would happen to Peagram.
Later, when Peagram got off the school bus, he saw Banks and
his brother in the parking lot approximately fifty feet away. He
also noticed that Banks and his brother both had guns that were
visible. Peagram ran to a place where he had hidden a gun.
Peagram retrieved the gun and put it in his waistband.
Shortly after Peagram armed himself, he saw Banks and his
brother approaching him from approximately thirty to forty feet.
When Banks displayed his gun, Peagram ran into Mosley's
apartment. Daniel, who was standing outside Mosely's apartment,
saw Peagram run into the apartment and observed Banks approaching
with a gun. Daniel then gathered children into the apartment and
closed the door. Banks ran to the closed door and kicked it
eight or nine times while yelling, "Let me in, let me in, open
the door." Mosley called the police. After Daniel yelled two or
three times to Banks that they had called the police, Banks ran
away.
II.
If any person in the daytime breaks and enters a dwelling
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house with the intent to commit assault and battery, that person
shall be guilty of statutory burglary. See Code §§ 18.2-90,
18.2-91. "[I]f the person was armed with a deadly weapon at the
time of such entry, [that person] shall be guilty of a Class 2
felony." Code § 18.2-91. "An attempt . . . is an unfinished
crime . . . composed of . . . the intent to commit the crime and
the doing of some direct act toward its consummation, but falling
short of the accomplishment of the ultimate design." Johnson v.
Commonwealth, 209 Va. 291, 293, 163 S.E.2d 570, 573 (1968).
"Intent . . . may . . . be inferred from the surrounding facts
and circumstances." Ridley v. Commonwealth, 219 Va. 834, 836,
252 S.E.2d 313, 314 (1979).
The record contains sufficient evidence to prove beyond a
reasonable doubt that Banks attempted to break and enter the
residence. Although Banks testified that he did not kick the
door with the intent to enter the apartment, the trier of fact
was not required to believe his testimony. See Stegall v.
Commonwealth, 208 Va. 719, 722, 160 S.E.2d 566, 568 (1968). The
trier of fact is the judge of the credibility of witnesses, see
Barker v. Commonwealth, 230 Va. 370, 373, 337 S.E.2d 729, 732
(1985), and thus, "is not required to accept, in toto," the
testimony of any witness. Belton v. Commonwealth, 200 Va. 5, 9,
104 S.E.2d 1, 4 (1958).
The evidence proved that Banks displayed his gun when he
chased Peagram into the apartment. Banks kicked the door during
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the pursuit. Moreover, Banks stated to a police officer that
when he hit the door, he was trying to get into the apartment.
Banks' conduct and his statement were sufficient to prove beyond
a reasonable doubt that he kicked the door in an attempt to
enter.
In addition, the evidence was sufficient to prove beyond a
reasonable doubt that Banks was armed and intended to commit
assault and battery upon Peagram. The evidence proved that Banks
was armed when Peagram got off of the bus. He then pursued
Peagram. The evidence further proved that Banks had earlier
threatened to harm Peagram. From this evidence, the trier of
fact could have inferred beyond a reasonable doubt that when
Banks chased Peagram he did so with the intent to commit assault
and battery. Thus, the evidence was sufficient to prove each
element of the offense beyond a reasonable doubt.
III.
The criminal offense of attempted breaking and entering with
the intent to commit assault and battery while armed with a
deadly weapon is punishable as a Class 4 felony. Code §§ 18.2-91
and 18.2-26. The authorized punishment "[f]or Class 4 felonies
. . . [is] a term of imprisonment of not less than two years nor
more than ten years and . . . a fine of not more than $100,000."
Code § 18.2-10(d). The trial judge sentenced Banks to twenty
years in prison with twenty years suspended.
The Commonwealth agrees that the trial judge erred in
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sentencing Banks. "Because we cannot summarily reduce [Banks']
sentence, we remand the case to the trial court for
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resentencing." Bell v. Commonwealth, 11 Va. App. 530, 534, 399
S.E.2d 450, 453 (1991).
Affirmed in part, reversed
in part, and remanded.
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