Fitzgerald v. Com.

• Decision Date: 05 February 1991
• Docket Number: No. 0234-89-3,0234-89-3
• Citation: Fitzgerald v. Com., 401 S.E.2d 208, 11 Va.App. 625 (Va. App. 1991)
• Parties: Glenn W. FITZGERALD v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 208

401 S.E.2d 208

11 Va.App. 625

Glenn W. FITZGERALD v. COMMONWEALTH of Virginia.

Record No. 0234-89-3.

Court of Appeals of Virginia.

Feb. 5, 1991.

Rehearing en banc Granted

March 22, 1991.

J. Harold Eads, Fincastle, for appellant.

Robert H. Anderson, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief) for appellee.

Present: BARROW, BENTON and COLEMAN, JJ.

BARROW, Judge.

In this criminal appeal we address whether one may be convicted of destruction of private property in violation of Code § 18.2-137, in addition to being convicted of burglary in violation of Code § 18.2-91, as a result of causing damage to property when breaking and entering a building. We conclude that a person may be convicted of both offenses because each offense requires proof of a fact not required for the other.

One night, the appellant and a companion committed several burglaries in adjoining counties. In Botetourt County, they committed four burglaries, in three of which they damaged structures in achieving their entry. At Wattstull Shell Service Station, the companion, using a tire iron, broke into one of the bay doors of the gas station, causing $115 damage to the door. Next, they broke into a building containing Cathy's General Store and Cathy's Laundromat. After unsuccessfully attempting to "jimmy" the front door, the appellant's companion gained entry by using a tire iron to break open the back side door, completely splitting it open. Finally, at Bunn's Texaco and Sub Shop, the appellant's companion used a pipe to knock out the front window, causing about $300 in damage.

The defendant argues that the charges of destruction of private property and breaking and entering represent multiple punishments for the same offense and therefore, should have been merged. The prohibition against double jeopardy contained in the United States Constitution protects against multiple punishments for the same offense. Blythe v. Commonwealth, 222 Va. 722, 725, 284 S.E.2d 796, 797 (1981). It also protects against a second prosecution for the same offense after acquittal or after conviction, id. In that context, offenses will be deemed the "same" offense when, in a subsequent prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted. Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548 (1990). Since the defendant's convictions occurred in a single trial, only the guarantee against multiple punishments for the same offense is applicable. See Blythe v. Commonwealth, 222 Va. at 725, 284 S.E.2d at 797-98.

"[T]he test to be applied is " 'whether each [offense] requires proof of a fact which the other does not.' " Id. (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932)). Even if offenses are the "same" under this test, the underlying question is whether the General Assembly intended that these two offenses be punished cumulatively. Blythe v. Commonwealth, 222 Va. at 726, 284 S.E.2d at 798.

The elements of each offense must be examined in the abstract, not with regard to the particular facts involved in this case. Id. The offense of destruction of private property consists of taking and carrying away or destroying, defacing or injuring any real or personal property not one's own. Code § 18.2-137. Statutory burglary occurs when a person "in the nighttime enters without breaking or in the daytime breaks and enters or enters and conceals himself" in a dwelling or certain other described premises with intent to commit larceny.

Each of these offenses requires proof of a fact which the other does not. Destruction of private property requires proof of either damaging or carrying away some other person's property. Burglary may involve a breaking, but, if committed at nighttime or accomplished by entering a house and concealing oneself inside, may be accomplished without a breaking. Even if a breaking occurs, only slight force is required. Finch v. Commonwealth, 55 Va. (14 Gratt.) 643, 646 (1858). Therefore, statutory burglary may be proved without the necessity of proving that private property has been damaged or carried away. On the other hand, destruction of private property under Code § 18.2-137 may be proved without the necessity of proving an entry into a dwelling, house or other premises or without proving any intent to commit larceny.

Code § 19.2-294, ¹ which bars a prosecution for a violation of one statute if a defendant has been convicted of violation of another statute for the same act, is equally inapplicable. Application of this statute depends upon violations of two statutes arising from the "same act." Wade v. Commonwealth, 9 Va.App. 359, 365, 388 S.E.2d 277, 279 (1990). If the "same act" is "a violation of two or more statutes," conviction under one statute is a bar to a prosecution under the other. Code § 19.2-294. The "same act" involved in this case was the breaking of the doors of the places broken into. This act, although common to both the convictions of breaking and entering and the convictions for destroying private property, was a violation of Code § 18.2-137, destroying private property, but was not a violation of Code § 18.2-91, statutory burglary. Thus, the same act was a violation of only one of the two statutes, not both.

In addition, a conviction of one statutory offense does not bar conviction under another statutory offense if each offense could have been proved without the necessity of proving the other. See Jones v. Commonwealth, 218 Va. 757, 761, 240 S.E.2d 658, 662, cert. denied, 435 U.S. 909, 98 S.Ct. 1459, 55 L.Ed.2d 500, 439 U.S. 892, 99 S.Ct. 249, 58 L.Ed.2d 238 (1978). In this case, proof that the appellant damaged two doors and a window in entering these three establishments did not require proof of statutory burglary. Likewise, proof that he had entered these premises during the nighttime to commit larceny did not require proof that he had damaged them in achieving entry.

In Padgett v. Commonwealth, 220 Va. 758, 263 S.E.2d 388 (1980) the Supreme Court interpreted Code § 19.2-294.1, a statute similar to Code § 19.2-294. In Padgett, the Court concluded that convictions of driving while intoxicated and reckless driving arising out of the same high speed chase were "the same act or acts" contemplated in Code § 19.2-294.1. The Court said that the act of driving, a "continuous, uninterrupted course of operation of a motor vehicle" was the "same act or acts" out of which the two charges grew and, therefore, the earlier reckless driving conviction barred the later driving while intoxicated offense. Id. at 761, 263 S.E.2d at 389-90. In this case, the breaking of a door may have been one continuous act, but the act of entering the property with intent to commit larceny, although immediately following the breaking, was a separate act from the breaking.

We conclude, therefore, that the appellant was properly convicted of both destruction of private property and burglary and that his convictions should be affirmed.

Affirmed. ²

BENTON, Judge, dissenting.

Glenn W. Fitzgerald was charged with the burglary of three separate commercial establishments. Although the majority correctly observes that burglary may be accomplished in the nighttime without a breaking, see Code § 18.2-90, the Commonwealth did not proceed upon that theory. Each of the indictments charged that Fitzgerald "did break and enter." Because entry was gained by breaking either a door or window at each establishment, Fitzgerald was also charged by warrants with the destruction of property at each of the establishments. Each warrant charged that Fitzgerald "did destroy private property, namely" a door or window, in violation of Code § 18.2-137.

Fitzgerald's accomplice testified for the Commonwealth under a plea agreement. The accomplice testified that Fitzgerald remained in the automobile while the accomplice used a tire iron to break the door to enter one establishment; "grabbed a ... pipe ... and busted out the front window [and] crawled through the window" of another establishment; and used a tire iron "to bust open the back side door ... to get in" the other establishment. Based on this testimony, the jury found Fitzgerald guilty of "breaking and entering" each establishment and guilty of destruction of private property growing out of the means used to effect the entries.

Code § 19.2-294 provides in pertinent part as follows:

If the same act be a violation of two or more statutes, or of two or more ordinances, or of one or more statutes and also one or more ordinances, conviction under one of such statutes or ordinances shall be a bar to a prosecution or proceeding under the other or others.

The statutory phrase "same act" focuses on the conduct of the accused, or, as relevant to this prosecution, the conduct of the accomplice attributed to Fitzgerald as a principal in the second degree. See Carter v. Commonwealth, 232 Va. 122, 126, 348 S.E.2d 265, 267 (1986). Thus, the inquiry must be upon the type of conduct proved by the Commonwealth at trial.

In Padgett v. Commonwealth, 220 Va. 758, 263 S.E.2d 388 (1980), the Supreme Court addressed the inquiry required by Code § 19.2-294.1, which is somewhat analogous to Code § 19.2-294 and which is contained in the same article of the Code. ³ The Supreme Court rejected as inapplicable the tests applied in Jones v. Commonwealth, 208 Va. 370, 157 S.E.2d 907 (1967) and in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), reasoning:

The question here, however, is not whether two distinct and separate offenses were involved so that the prosecution for both could have proceeded without violating double jeopardy principles. If that were the question, the Blockburger test, which was enunciated in a double jeopardy setting, would permit both convictions to stand in this case because the Lynchburg reckless driving charge could have...