Graybeal v. Com., 831698
| Decision Date | 18 January 1985 |
| Docket Number | No. 831698,831698 |
| Citation | 324 S.E.2d 698,228 Va. 736 |
| Parties | Jeffrey Allen GRAYBEAL v. COMMONWEALTH of Virginia. Record |
| Court | Virginia Supreme Court |
Michael A. Bragg, Bristol, for appellant.
Cynthia V. Bailey, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., Elizabeth J. Stewart, Asst. Atty. Gen., on brief), for appellee.
Present: All the Justices.
Jeffrey Allen Graybeal was indicted on twelve counts of nighttime breaking and entering an "office or storehouse" in violation of Code § 18.2-91 and one count of grand larceny in violation of Code § 18.2-95. His case was tried to a jury, and he was convicted of all charges. The trial court entered judgment on the jury verdicts and sentenced Graybeal to three months in jail for each breaking and entering, twelve months for grand larceny, and imposed a $1,000 fine for one of the breaking and enterings.
On appeal, Graybeal complains only of his convictions on the twelve counts of breaking and entering. According to Graybeal, the Commonwealth failed to prove a violation of the code section referenced in the indictment. Graybeal contends that the evidence established that the structures broken into were not offices or storehouses as set forth in the indictment. In addition, Graybeal contends that none of the other provisions of Code § 18.2-91 applies.
The facts are as follows: Graybeal was arrested on December 18, 1982, at approximately 2:15 a.m. as he stood beside a highway attempting to flag down a car. The police found a pile of household items in a pine grove a few feet from where Graybeal had been standing. Graybeal's location at the time of his arrest was close to a mobile home sales lot that contained several furnished trailers or mobile homes. The police noticed that some of the trailers in the lot had been broken into. The police contacted the lot owner who verified that twelve trailers had been broken into and that household items were missing from each.
At trial, the service manager of the mobile home lot testified that the structures broken into were intended for resale or display. He testified that they were neither sectional houses nor modular homes, but that each was equipped with a hitch so that it could be pulled by a truck. He further testified that none of the structures was being used as an office or storehouse at the time. The service manager referred to the structures as "mobile homes," but he acknowledged that some people refer to them as "trailers." The testimony from the service manager, a Commonwealth witness, makes clear that Graybeal is correct in contending that the Commonwealth failed to prove that he broke into an office or storehouse, as stated in the indictment.
The question remains whether the evidence proved a violation of any other provision of Code § 18.2-91. That code section reads in pertinent part as follows:
If any person do any of the acts mentioned in § 18.2-90 with intent to commit larceny, or any felony other than murder, rape or robbery, he shall be deemed guilty of statutory burglary....
Code § 18.2-90 reads in pertinent part as follows:
If any person ... in the nighttime enter without breaking or break and enter either in the daytime or nighttime any office, shop, storehouse, warehouse, banking house, or other house, or any ship, vessel or river craft or any railroad car, or any automobile, truck or trailer, if such automobile, truck or trailer is used as a dwelling or place of human habitation, with intent to commit murder, rape or robbery, he shall be deemed guilty of statutory burglary....
According to Graybeal, the only other part of the statute that could be used against him concerns trailers. But he argues that before breaking into a trailer can serve as the basis for statutory burglary, the Commonwealth must prove that the trailer "is used as a dwelling or place of human habitation." Graybeal submits that there was no such proof in this case and therefore the Commonwealth failed to prove a violation of the statute with regard to the twelve counts of breaking and entering.
We think Graybeal's analysis is correct. This appeal concerns a penal statute. Recently, in Turner v....
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