Although the occupant of a home had moved out of their “second home” so her husband could perform renovations, the home still satisfied the legal definition of a “dwelling house” and the Court of Appeals affirms defendant’s conviction for burglary of a dwelling house.
Evidence showed the house was a “second dwelling” for the family. The wife had lived there for over a year and had left a few months earlier so the home could be renovated; she intended to resume her residence when the renovations were finished. All of the wife’s furniture, family pictures and personal belongings remained in the home, and utility service to the home (electricity, water and gas) remained available during the renovations.
There also was sufficient evidence to prove defendant entered the home with intent to commit larceny. After breaking through the back door, he stole a bag of pennies found in the home and also stole a bag of copper pipe, which he admitted he intended to resell. Defendant left the premises only because he cut his hand during the break-in. These circumstances are more than sufficient to satisfy the specific intent requirement alleged in the statutory burglary indictment.
The trial court did not err in granting the commonwealth’s motion to exclude any mention of the fact that the home was condemned. The trial court allowed evidence that the owner had personally turned off most of the electricity to the house, but found that it would be irrelevant and misleading to also mention the condemnation of the house based on that “technicality.” By allowing the jury to consider the factual basis for the condemnation, but excluding any mention of condemnation, the trial court eliminated the possibility that the jury would have speculated that there must have been some reason or the condemnation other than the counterintuitive, but wholly uncontested, fact that the owner voluntarily shut off the power.
Defendant also contends the jury rendered inconsistent verdicts when it convicted him of petit larceny and grand larceny with intent to sell or distribute. He suggests that when the jury convicted him of petit larceny, it was simultaneously finding him not guilty of grand larceny of the copper pipe. We do not share this assumption, it would not matter if we did. In Virginia, it is permissible for juries to reach inconsistent verdicts.
We affirm defendant’s convictions for statutory burglary, petit larceny and grand larceny with intent to sell or distribute.
Yaconis v. Commonwealth (Kelsey) No. 1363-13-1, July 29, 2014; Portsmouth Cir.Ct. (Hawks) W. McMillan Powers, APD, for appellant; Eugene Murphy, Sr. AAG, for appellee. VLW 014-7-243(UP), 11 pp.