Home / Fulltext Opinions / Virginia Court of Appeals / MAYO v. COMMONWEALTH OF VIRGINIA




NOVEMBER 25, 1997
Record No. 0293-97-2





James E. Kulp, Judge
Present: Judges Benton, Willis and Annunziata
Argued at Richmond, Virginia

Andrew W. Wood (Law Office of Wood & Wood, on brief), for

Daniel J. Munroe, Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellee.

Terrell R. Mayo was tried and convicted of grand larceny and
of breaking and entering a dwelling with the intent to commit
larceny. He appeals only from the statutory burglary conviction
and contends that the evidence was insufficient to support the
conviction. We agree and reverse the burglary conviction.

The evidence proved that Terrell R. Mayo was living on a
temporary basis with his sister, Devoni Thompson. Thompson lived
in an apartment with her two children, and Thompson had given
Mayo permission to sleep on the sofa in her apartment. As of
September 11, 1996, Mayo had spent the prior four days at
Thompson’s apartment and had been living with Thompson "off
and on" for three weeks. Because Mayo had no other home,
Thompson allowed him to stay "until he [got] his own
place." Thompson testified that she had to be home before
Mayo could get into the apartment because only Thompson and her
mother had keys to the apartment. However, whenever Mayo went
out, Thompson did not require Mayo to return to the apartment at
any certain time.

On the night of September 11, Thompson took Mayo to a hotel at
4:00 p.m. to visit a friend. Thompson returned home at
11:00 p.m. and locked the deadbolt on her front door. She
did not remember locking the other lock on that door, a doorknob
lock. All windows and the patio doors were locked. The following
morning, when Thompson was leaving her apartment, she noticed her
television and videotape recorder were missing. Thompson also
noticed that the front door deadbolt was unlocked.

The police questioned Mayo concerning the missing electronic
equipment. Mayo responded that he felt responsible because he
"left the door open." Mayo also said that he "just
took the stuff and gave it to a guy."

On this evidence, the trial judge convicted Mayo of grand
larceny and statutory burglary in violation of Code ? 18.2-91. Mayo appeals only
from the statutory burglary conviction.

To convict an accused of statutory burglary under Code ? 18.2-91, the
Commonwealth must prove an entry to the dwelling of another
either at nighttime without breaking or at anytime by breaking. See
Code ?
18.2-90. The indictment charged that "Mayo, unlawfully and
feloniously did break and enter . . . the dwelling of . . . [his
sister], with intent to commit larceny" in violation of Code
? 18.2-91. Therefore,
the Commonwealth was not required to prove the time of the
offense because "breaking and entering of a dwelling, at any
time, is the essential element of the offense" as charged. Griffin
v. Commonwealth
, 13 Va. App. 409, 412, 412 S.E.2d 709, 711
(1991). The Commonwealth had to prove, however, that both a
breaking and an entering occurred. "Like any other elements
of a crime, each of these must be proved beyond a reasonable
doubt and not left to speculation." Caminade v.
, 230 Va. 505, 510, 338 S.E.2d 846, 849 (1986).

The evidence, however, leaves to speculation whether Mayo
entered the apartment by breaking. The evidence proved that the
locked windows and patio doors had not been opened. Thompson
testified that on the morning when she discovered her property
missing the deadbolt lock that she had locked the night before
was unlocked. From that evidence the trier of fact could have
inferred that Mayo entered the apartment through the front door.

Thompson had not told Mayo that he could not return to the
apartment. Mayo temporarily resided in the apartment, slept on
the sofa, and had clothing in the apartment. Moreover, the
evidence proved that Thompson’s children, whose ages were not
proved, had bedrooms near the front of the apartment. The
evidence also proved that Thompson’s mother had a key to the

No evidence proved that Mayo used force or a device of some
kind to open the door. The inference that Mayo somehow broke into
the apartment is no more reasonable than the inference that one
of the children or the mother opened the door to give him entry
to the apartment. Cf. Davis v. Commonwealth, 132
Va. 521, 110 S.E. 356 (1922). The principle is well established
"that where the evidence leaves it indefinite which of
several hypotheses is true, or establishes only some finite
probability in favor of one hypothesis, such evidence cannot
amount to proof [beyond a reasonable doubt], however great the
probability may be." Massie v. Commonwealth, 140 Va.
557, 565, 125 S.E. 146, 148 (1924). See also Williams
v. Commonwealth
, 12 Va. App. 912, 918, 407 S.E.2d 319, 323

We need not address Mayo’s other issues because, on the
evidence in this record, the trier of fact could only speculate
concerning Mayo’s means of entry. The evidence failed to prove
beyond a reasonable doubt that a breaking occurred. Accordingly,
we reverse the conviction and dismiss the indictment.

Reversed and dismissed.




[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.