Virginia Lawyers Weekly VA Lawyers Weekly
Where the appellant was seen walking back and forth on the theft victim’s porch and the victim came home to an open door, this was sufficient evidence of an actual breaking for purposes of a burglary conviction. Further, there was sufficient evidence of the value of a stolen video game console and video games to sustain a grand larceny conviction.
Overview
When Sawyer and her children left their home, she shut and locked the front door. When Sawyer’s sone returned later in the day, a video gaming console was missing. When Sawyer returned, she discovered more than two dozen games were missing.
Sawyer called the police. “According to an eyewitness, the neighbor’s sister, a male later identified as [appellant] Briley was seen walking back and forth on Sawyer’s porch around 9:50 a.m. that morning.”
Sawyer and a video game store manager testified about the value of the stolen items. “In addition to selling games, the manager testified that GameStop also accepts trade-in devices and games.
“Approved trade-in transactions are entered into the store’s pawn tracking system that law enforcement can access. Detective Alexander used this tracking system to trace Sawyer’s Switch to GameStop.
“Briley was later identified, on store surveillance video, as the individual who sold the Switch and four games on the same day as the burglary[.] …
“Briley denied selling the items, but he later confessed. On cross-examination, Briley sought to elicit testimony from Detective Alexander about the excluded portion of his earlier statement that he had received the games from 7-Eleven. The trial court sustained the Commonwealth’s objection and did not allow the evidence.
“The trial court granted Briley’s motion to strike for obtaining money by false pretense; however, it denied Briley’s other motions to strike. The trial court found that the evidence was sufficient to prove the burglary and larceny offenses.” Briley appealed.
Legal standards
“‘To sustain a conviction for statutory burglary under Code § 18.2-91, the Commonwealth must prove: (1) the accused … broke and entered the dwelling house in the daytime; and (2) the accused entered with the intent to commit any felony other than murder, rape, robbery or arson.’ … Breaking ‘may be either actual or constructive.’ …
“An actual breaking is the use of force, however slight, to enter. … ‘Merely pushing open a door, turning the key, lifting the latch, or resort to other slight physical force is sufficient to constitute this element of [burglary],’ so long as those acts ‘resulted in an entrance contrary to the will of the occupier of the [property].’”
Breaking
“Briley contends that the evidence was insufficient to prove an actual breaking to enter Sawyer’s home because the door was previously broken and open when she arrived home. In support of his contention, Briley relies on Sawyer’s testimony about the door.
“Sawyer testified that she ‘shut the door’ and locked it when she and her children left for school at 7:45 a.m. However, she admitted that ‘the doorknob locks, but if you shook it hard enough, the door would open.’ Sawyer also testified the door was open when she arrived in the afternoon – despite her children having come home earlier. …
“Sawyer’s testimony that she shut and locked the door, coupled with the eyewitness evidence that Briley was observed on the porch that morning after Sawyer left, is sufficient evidence to prove the element of breaking.
“Despite Briley’s contention, a rational fact-finder could find that a breaking had occurred, although there was evidence the door had not functioned properly and was already open upon Sawyer’s arrival home.
“On cross-examination, Briley elicited testimony from Sawyer that the door did not seal shut but opened if enough force was applied.
“Even if the evidence supported Briley’s argument that the door was open, the evidence was sufficient to permit the trial court to find that a breaking had occurred when the door was opened even more. The force involved may indeed be very slight.”
Value
“Briley challenges his convictions for grand larceny and larceny with the intent to sell or distribute, alleging that the evidence was insufficient to prove that the value of the stolen property was $500 or more.”
The evidence supports the trial court’s valuation of the stolen property was $728. This is more than the $500 threshold for grand larceny.
“It was within the province of the trial court to consider and determine the credibility of Sawyer’s market-value testimony. Accordingly, the evidence sufficed for a reasonable trier of fact to find that the value of the stolen items satisfied the statutory requirement.”
Affirmed.
Briley v. Commonwealth, Record No. 1151-21-1, Aug. 2, 2022. CAV (Chaney) From the Circuit Court of the City of Chesapeake (Banks Jr.) Samantha O. Thames for appellant. Rosemary V. Bourne, Jason S. Miyares for appellee. VLW 022-7-294, 10 pp. Unpublished opinion.
