Giles v. Com.

• Decision Date: 08 April 2008
• Docket Number: Record No. 0455-07-3.
• Citation: 51 Va. App. 449,658 S.E.2d 703
• Court: Virginia Court of Appeals
• Parties: Christopher Lee GILES v. COMMONWEALTH of Virginia.

658 S.E.2d 703

51 Va. App. 449

Christopher Lee GILES v. COMMONWEALTH of Virginia.

Record No. 0455-07-3.

Court of Appeals of Virginia, Salem.

April 8, 2008.

Jameson R. Whitney, for appellant.

Karen Misbach, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FRANK, HUMPHREYS and HALEY, JJ.

HALEY, JR., Judge.

I. INTRODUCTION

Code § 18.2-89 states in part that "[i]f any person break and enter the dwelling house of another in the nighttime with intent to commit a felony or larceny therein, he shall be guilty of burglary." The issue we consider here, one of first impression in Virginia, is the extent to which a person must inhabit a house for it to constitute a "dwelling house" under the statute. We conclude that under the facts of this case, where the owner slept in the house about one weekend per month and maintained the house ready for immediate occupancy, such habitation suffices to constitute a dwelling. We therefore affirm the circuit court.

II. FACTS

On the night of September 27, 2005, Christopher Lee Giles went with two other persons to a house in Martinsville, Virginia. Giles removed the screws from a screen door and broke the glass out from another door with a rock. He stuck his hand through the door frame where the glass had been and unlocked the door, thereby gaining access to the house. The following evening, the trio returned and took two televisions, a VCR, blankets, towels, toilet paper, and food.

The owner of the house was Oscar Thornton, Jr., a resident of Baltimore, Maryland, who was retired. He inherited the house from his mother when she passed away on June 29, 2005. He last came to the house before the break-in on September 17, which was a Saturday, and stayed at the house for the weekend. This was more or less ten days before the burglary. Thornton testified he commonly stayed at the house on weekends when visiting. He came to the house two times between his mother's death on June 29 and the September 17 visit. Thornton kept the refrigerator and pantry stocked with food and maintained sleeping quarters there. The electricity and water remained turned on, and the house was furnished in three bedrooms, a living room, family room, and kitchen. While Thornton was away, he left the house in the care of his cousin, Brenda Kirby. She testified she went to the house about once every two weeks to "make sure everything was in place and in order." Neither Thornton nor Kirby gave Giles permission to enter the home. Thornton himself paid to have the doors damaged by the burglary repaired.

A grand jury indicted Giles for statutory burglary in violation of Code § 18.2-89. He received a bench trial on November 17, 2006, at the conclusion of which the court found him guilty. On January 25, 2007, the court sentenced Giles to twenty years incarceration, with thirteen years and eight months suspended. Giles now appeals.

III. ANALYSIS

On appeal, we review the evidence in the light most favorable to the Commonwealth. Cirios v. Commonwealth, 7 Va.App. 292, 295, 373 S.E.2d 164, 165 (1988). "This principle requires us to discard the evidence of the accused in conflict with that of the Commonwealth and to regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Guda v. Commonwealth, 42 Va.App. 453, 455, 592 S.E.2d 748, 749 (2004).

However, issues of statutory construction present pure questions of law that receive de novo review before this Court. Harris v. Commonwealth, 274 Va. 409, 413, 650 S.E.2d 89, 91 (2007). In construing a statute, we first look to the words used by the General Assembly. Tucker v. Commonwealth, 268 Va. 490, 493, 604 S.E.2d 66, 68 (2004). "When the language of a statute is plain and unambiguous, courts are bound by the plain meaning of that language and may not assign the words a construction that amounts to holding that the General Assembly did not mean what it actually stated." Miles v. Commonwealth, 272 Va. 302, 307, 634 S.E.2d 330, 333 (2006).

Construction of a statute involves "reference to its subject matter, the object sought to be attained, and the legislative purpose in enacting it; the provisions should receive a construction that will render it harmonious with that purpose rather than one which will defeat it." Esteban v. Commonwealth, 266 Va. 605, 609, 587 S.E.2d 523, 526 (2003). "An undefined term must be `given its ordinary meaning, given the context in which it is used.'" Sansom v. Bd. of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999) (quoting Dep't of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980)). The Court "must not add to the words of the statute, nor ignore its actual words." Robinson v. Commonwealth, 274 Va. 45, 51, 645 S.E.2d 470, 473 (2007). Although we strictly construe penal statutes against the Commonwealth, Gunn v. Commonwealth, 272 Va. 580, 587, 637 S.E.2d 324, 327 (2006), we keep in mind "that the plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, or strained construction." Turner v. Commonwealth, 226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). Thus, "we will not apply `an unreasonably restrictive interpretation of the statute' that would subvert the legislative intent expressed therein." Armstrong v. Commonwealth, 263 Va. 573, 581, 562 S.E.2d 139, 144 (2002) (quoting Ansell v. Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)).

We addressed the meaning of "dwelling house" in Code § 18.2-89 in Rash v. Commonwealth, 9 Va.App. 22, 383 S.E.2d 749 (1989). At the time the house there was broken into, it had been vacant for about seven months. Id. at 24, 383 S.E.2d at 750. The owners of the house inherited it from their sister. Id. Although the owners planned to sell it, it was fully furnished and one of the owners conducted routine maintenance. Id. In considering whether this represented a "dwelling house," the Court noted that "[b]urglary was, at common law, primarily an offense against the security of the habitation and that is still the general conception of it."¹ Id. at 25, 383 S.E.2d at 751 (quoting Compton v. Commonwealth, 190 Va. 48, 55, 55 S.E.2d 446, 449 (1949)). The common law understood "dwelling house" "to mean any structure which human beings regularly used for sleeping." Id. The Court found that since other code sections concerned breaking and entering into structures not used for human dwelling, Code § 18.2-89 incorporated the common law notion of burglary. Id. at 26, 383 S.E.2d at 751. Thus, the Court held that "dwelling house" meant "a place which human beings regularly use for sleeping." Id. The Court then considered whether a residence meeting this definition could lose its legal status by the temporary absence of an occupant. Id. at 26-27, 383 S.E.2d at 751-52. After citing cases from a number of jurisdictions, the Court held that "a dwelling is no longer a `dwelling house' for purposes of Code § 18.2-89 when its occupants leave without any intention to return."² Id. at 27, 383 S.E.2d at 752. On the facts of Rash, the Court found that since the house was unoccupied and would not have another occupant under the current owners it did not represent a "dwelling house." Id. While the fact that the house was fully furnished could serve as evidence of intent to return, the Court held such a conclusion clearly rebutted by the evidence. Id.

The Court further elaborated on the meaning of a "dwelling house" in Hitt v. Commonwealth, 43 Va.App. 473, 598 S.E.2d 783 (2004). The issue directly presented was whether a bedroom within a house could qualify as a dwelling. Id. at 480, 598 S.E.2d at 786. In finding it could not, the Court stated that "while habitation or occupancy necessarily includes sleeping, it clearly also includes other `dwelling-related' activities, such as preparing and consuming meals, bathing and other day-to-day activities traditionally associated with habitation." Id. at 483, 598 S.E.2d at 788.

Thus, Rash and Hitt provide two criteria for determining whether a residence constitutes a "dwelling house" under Code § 18.2-89. First, humans must regularly sleep there and engage in other functions related to habitation. Hitt, 43 Va.App. at 483, 598 S.E.2d at 788; Rash, 9 Va.App. at 26, 383 S.E.2d at 751. Second, if the regular occupants are away, they must intend to return. Hitt, 43 Va.App. at 482-83, 598 S.E.2d at 788; Rash, 9 Va.App. at 27, 383 S.E.2d at 752.

Yet neither Rash nor Hitt answer the question presented here. Namely, the issue is the extent to which a house must be "regularly use[d]" to qualify as a "dwelling house."

Since, as noted above, Virginia follows the common law definition of burglary, we first look to the common law for guidance. Our holding in Rash that a dwelling house remains legally a dwelling during the absence of its occupant if the occupant intends to return reflected a long line of common law precedent. Even from the sixteenth century it was held:

If a man have two houses and inhabit sometimes in one, and sometimes in the other, if that house in which he doth not inhabit be broken in the night, to the intent to steal the goods then being in his house, then this is burglary, although no person be then in the house.... And in the same manner the house of every one is the proper place to preserve his goods, although no person be there: and that the law was always so, it is to be collected by the course of the statutes thereof made.

79 Eng. Rep. 1169 (K.B.1593). Lord Hale commented on the issue in this way: "So if A. have two mansion houses, and is sometimes with his family at one and sometimes at the other, the breach of one of them in the absence of his family from thence is burglary."³ 1 Sir Matthew Hale, The History of the Pleas of the Crown 556 (Philadelphia, Robert H. Small 1847). A nineteenth century American court later enunciated this principle by stating...