Dalton v. Com.

• Decision Date: 02 June 1992
• Docket Number: No. 1994-90-2,1994-90-2
• Parties: Jeffrey Glenn DALTON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 563

418 S.E.2d 563

14 Va.App. 544

Jeffrey Glenn DALTON v. COMMONWEALTH of Virginia.

Record No. 1994-90-2.

Court of Appeals of Virginia.

June 2, 1992.

John N. Clifford (Clifford & Duke, P.C., on brief), for appellant.

Eugene Murphy, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BRAY and ELDER, JJ.

KOONTZ, Chief Judge.

In a jury trial, Jeffrey Glenn Dalton, appellant, was convicted of statutory burglary and attempted grand larceny. On appeal, Dalton contends that his conviction for statutory burglary should be reversed because the structure he is charged with breaking and entering is not a "storehouse" under Code §§ 18.2-90 and 18.2-91. We disagree and affirm his conviction for statutory burglary.

On the evening of August 11, 1990, the Chesterfield police responded to a silent alarm that was activated at the business of Chester Marine and Tractor Company (Chester Marine). Upon arrival, the police observed Dalton and another man on the property at Chester Marine. A pickup truck had been backed up to a structure that was used to store lawn mowers that had been serviced and were ready to be delivered. The police observed Dalton and his confederate removing lawn mowers from the structure and loading them onto the back of the pickup truck. After Dalton and the other individual observed the police, they fled from the area and a chase ensued. Both men were eventually apprehended.

The structure from which Dalton removed the lawn mowers consisted of a rectangular area enclosed on three sides by an eight foot chain link fence. The fourth side of the structure was the side of a building, and the fence was attached to the side of this building. The enclosed area was described as "a continuation of that building." The metal roof of the building extended from the back wall to cover the enclosed, rectangular area. This roof was supported by posts anchored in the ground by cement. The fence did not reach the roof, leaving a five to six foot gap between the top of the fence and the roof. One side of the fence had a gate that was closed but not locked on the night of August 11, 1990.

The entire property at Chester Marine was enclosed by a perimeter chain link fence. Wayne Bowles, general manager of Chester Marine, testified that this fence was secured on the evening of August 11, 1990. The police discovered a three foot hole in the perimeter fence. Also, a chain used to lock the gate of the perimeter fence was cut.

The indictment charged Dalton with breaking and entering "the storehouse of Chester Marine and Tractor Company" with the intent to commit larceny or a felony therein in violation of Code § 18.2-91. Code § 18.2-91 defines burglary as the breaking and entering of any of the structures listed in Code § 18.2-90 with the intent to commit larceny or any felony except murder, rape or robbery. Code § 18.2-90 lists, in pertinent part, the structures subject to burglary: "any office, shop, storehouse, warehouse, banking house, or other house."

Dalton argues that the trial court erred in refusing to grant his Motion to Strike the Evidence and Motion to Set Aside the Verdict because the storage area was not a "storehouse" within the meaning of the burglary statute. He also asserts that the trial court erred in refusing to instruct the jury that a storehouse is a "structure, enclosed with walls from the ground to the roof, and permanently attached to the realty." These assignments of error require us to decide whether the structure Dalton was charged with breaking and entering is a "storehouse" within the meaning of Code § 18.2-90.

Whether or not the storage area at Chester Marine is a "storehouse" is a factual question, and the trial court's determination will not be reversed if it is supported by the evidence. See Crews v. Commonwealth, 3 Va.App. 531, 536, 352 S.E.2d 1, 4 (1987). Dalton contends that the structure cannot be the subject of burglary because it is merely a fenced-in area that is neither affixed to the realty nor enclosed with walls and a roof. TheCommonwealth contends that the structure is a "storehouse" because it is permanently affixed to the ground and to the adjacent building so as to become a part of the realty.

We begin our analysis by recognizing that the statute in question does not define the term "storehouse." The word "storehouse," in plain terms, means a "structure in which things are stored." Black's Law Dictionary 1420 (6th ed. 1990). Although the parties agree that the structure in question was used for the storage of lawn mowers, this fact does not end our analysis. The pertinent language in Code § 18.2-90 has been interpreted in several cases, and we turn to these cases for guidance.

In Compton v. Commonwealth, 190 Va. 48, 54, 55 S.E.2d 446, 449 (1949), the Supreme Court held that a chicken house fell within the definition of "other house" under the burglary statute. In reaching this conclusion, the Court noted that the chicken house, although a small building, was tall enough to stand up in and had walls and a roof. Id. at 54, 55 S.E.2d at 449. Consequently, the Court held that this particular chicken house could be the subject of burglary.

In a later case, Graybeal v. Commonwealth, 228 Va. 736, 324 S.E.2d 698 (1985), the Court addressed the question of whether mobile homes or trailers, used for resale or display, came within the language of "other house" under Code § 18.2-90. In construing the meaning of "other house," the Court found that the structures listed in the statute share the common element of being permanently affixed to the ground and, thus, constitute "realty." Id. at 740, 324 S.E.2d at 700. Because the trailers were not affixed to the ground, the Court held that they were not included within the definition of "other house."

Finally, in Crews v. Commonwealth, 3 Va.App. 531, 352 S.E.2d 1 (1987), we considered whether a converted school bus used solely for storage was a "storehouse," "warehouse" or "other house" under Code § 18.2-90. There, we stated that the controlling factor was whether the school bus was affixed to the ground so as to become part of the realty. Id. at 536, 352 S.E.2d at 3-4. Finding that a "school bus is not presumptively realty," we held that the Commonwealth was required to prove that it had been transformed into realty. Id. at 536, 352 S.E.2d at 4. Although there was no dispute that the school bus was used for storage, the evidence failed to show that the vehicle had been affixed to the ground. For this reason, we held that the converted school bus did not fall within the language of Code § 18.2-90. Id. at 537, 352 S.E.2d at 4.

From this review of the case law, it is clear that in order for a structure to be the subject of burglary, the structure must be permanently affixed to the ground so as to become a part of the realty at the time of the unlawful entry. Graybeal, 228 Va. at 740, 324 S.E.2d at 700; Crews, 3 Va.App. at 536, 352 S.E.2d at 3-4. ¹ The evidence shows that the storage area at Chester Marine is a part of the realty. The roof, which extends from the Chester Marine building and covers the entire storage area, is supported by posts anchored into the ground by cement. Also, the fence is attached to the wall of the Chester Marine building. From this evidence, the trial court properly found that the structure was permanently affixed to the ground so as to become part of the realty.

However, determining whether or not a structure is permanently affixed to the ground is not the sole consideration in deciding whether a structure comes within the language of Code § 18.2-90. In addition to being affixed to the ground, a structure subject to burglary must also have walls and a roof. See Compton, 190 Va. at 54, 55 S.E.2d at 449. Dalton contends that the storage area...