Criminal – Breaking & Entering – Unoccupied Dwelling

Although defendant broke into the apartment after the occupants had left upon hearing defendant’s threats, the fact that the apartment was unoccupied when defendant entered does not preclude defendant from being convicted under Va. Code § 18.2-92 for breaking and entering with intent to commit a misdemeanor.

Defendant asserts that the phrase “while said dwelling is occupied” in Va. Code § 18.2-92 creates an additional element for the offense, namely that at least one occupant must be physically present in the dwelling house at the time of the breaking and entering. We disagree.

In this commonwealth, there is no distinction between burglary of a dwelling whose occupants are present and one whose occupants are temporarily absent. In Rash v. Commonwealth, 9 Va. App. 22 (1989), we held that the term “dwelling house” means “a place which human beings regularly use for sleeping” and that a “house remains a dwelling house so long as the occupant intends to return [to it for that purpose].'” Thus, we concluded that Code § 18.2-89 is applicable to dwelling houses even though the occupants are temporarily absent at the time of the unlawful entry. This analysis is equally applicable to the provisions of Code § 18.2-92.

We hold that the phrase “while said dwelling is occupied” in Code § 18.2-92 is not an element of the crime requiring the physical presence of the occupant at the time of the unlawful entry. Rather, it is language intended by the legislature to emphasize the character of the use of the dwelling as a place of current habitation rather than a dwelling that is temporarily vacant.

Further, there was sufficient evidence to convict defendant of the crime where defendant was present at the scene of the break-in and he was inside the apartment immediately following the break-in. Although a witness’s testimony was not conclusive as to what door–the main door of the apartment building or the interior apartment door–she saw defendant push against, the trier of fact was privileged to weigh this evidence and determine whether or not defendant committed an act of breaking.

Moreover, the commonwealth was not required to show that defendant was the principal housebreaker. The evidence was sufficient to show that he acted as a principal in the second degree; circumstances surrounding his presence and his subsequent entry into the dwelling are sufficient to establish that he shared the criminal intent to break into the apartment. Further, defendant’s presence in the midst of various acts of vandalism and larceny is consistent with the trial court’s finding that he possessed a guilty intent upon entry into the home. We cannot say that the trial court’s finding that defendant possessed the necessary intent was clearly wrong.

Conviction affirmed.

Benton, J.: If in interpreting Code § 18.2-92, we use the term “dwelling house” in the manner consistent with the holding in Rash, the word “occupied” must be limited to actual physical presence. To do otherwise is to create a redundancy or to read out of the statute the word “occupied.” When interpreting Code § 18.2-92, we may not do either because we have a duty to give full force and effect to every word of the statutes.

The evidence did not prove that defendant entered the dwelling house while said dwelling was occupied. No evidence proved that anyone was present within the dwelling. Indeed, the evidence provided that the three people who were in the apartment locked the door, got into an automobile and drove away. After they left the apartment, defendant and his companions entered the apartment. I would hold that the dwelling was not occupied and reverse the conviction.

Johnson v. Commonwealth (Koontz) No. 1069-92-3, May 31, 1994 Danville Cir.Ct. (Ingram) Gregory T. Casker for appellant; H. Elizabeth Shaffer, AAG, for appellee. VLW 094-7-294, 13 pp.