Burglary Partially Complete Before Firearm Use

A defendant already had gained entry to a restaurant when a restaurant employee saw him and recognized him as a customer, before seeing the gun defendant was pointing at the two employees prior to demanding money from the cash register and leaving through the back door, and the Supreme Court of Virginia says defendant cannot be convicted for use of a firearm in the commission of a burglary.

Virginia Code § 18.2-53.1 makes it unlawful for any person to use or attempt to use any firearm or display such weapon in a threatening manner while committing or attempting to commit burglary.

Defendant’s argument hinges on the word “while” in Code § 18.2-53.1. Defendant asserts that “while” is synonymous with “during” and does not include acts subsequent to the commission of the relevant felony. Defendant asserts he cannot be convicted under § 18.2-53.1 for use of a firearm in the commission of a burglary because he did not display or use a firearm until after he had committed the burglary. We agree.

Since 1937, this court has stated that a burglary is complete when the defendant has completed all the elements of the crime. In the instant case, the burglary was complete upon defendant’s entry into the restaurant with the intent to commit robbery.

This court has used “while” interchangeably with “during,” indicating that the terms are synonymous. Thus, the qualifier “while” limits the applicability of Code § 18.2-53.1 to use of a firearm “during” a burglary.

Once a perpetrator enters at nighttime, with or without breaking, with the requisite intent, the crime of burglary is complete. Although the perpetrator remains criminally responsible for any illegal acts performed after the burglary, the crime of burglary does not continue until the perpetrator vacates the premises. To extend the application of Code § 18.2-53.1, as it relates to burglary, to all actions undertaken after a burglary until the perpetrator vacates the premises would be to expand the scope of the penal statute beyond that clearly stated by the General Assembly. We decline to do so.

Here, there is no evidence that defendant used or displayed the firearm when gaining entry to the restaurant. Neither witness observed defendant’s entry. The first time either of the witnesses noticed defendant was when one of the employees turned around to find defendant pointing a gun at him. By that time, defendant had already entered the restaurant with the intent to commit robbery therein. The burglary had been completed. The evidence is insufficient to support a conviction of use or display of a firearm during the commission of the burglary.

The Court of Appeals erred when it held that the evidence was sufficient to support defendant’s conviction for use of a firearm in the commission of a burglary.

Reversed, vacated and dismissed.

Rowland v. Commonwealth (Goodwyn) No. 101003, March 4, 2011; Va.Ct.App. Catherine French, APD; Erin M. Kulpa, AAG; Kenneth T. Cuccinelli II, AG. VLW 011-6-045, 9 pp.