Lacey v. Com., Record No. 1407-08-1.
| Decision Date | 28 April 2009 |
| Docket Number | Record No. 1407-08-1. |
| Citation | 54 Va. App. 32,675 S.E.2d 846 |
| Parties | Michael Eugene LACEY v. COMMONWEALTH of Virginia. |
| Court | Virginia Court of Appeals |
Justin W. Esworthy, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Joshua M. Didlake, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: ELDER, FRANK and HALEY, JJ.
Michael Eugene Lacey appeals his convictions for statutory burglary and third or subsequent offense petit larceny. Lacey maintains (1) the evidence of statutory burglary was insufficient since it showed he entered a dwelling house through an open garage door, and (2) the trial court erred in denying his motion for mistrial where a jury verdict form improperly referenced prior larceny offenses contrary to the stipulation of the parties. We find his first argument persuasive and reverse the statutory burglary conviction and dismiss the indictment. We hold his second argument procedurally barred and so affirm the conviction for third or subsequent offense petit larceny.
On the afternoon of May 5, 2007, H.F. was trimming a tree at his house in Virginia Beach. One of his two garage doors was open. H.F. noticed his trimmer blade failed to work as well as desired, so he decided to sharpen it in the garage. H.F. also stored the trimmer in the garage. As H.F. disassembled the trimmer, he saw Lacey emerge from a "utility room" connecting the house to the interior of the garage. A door must be opened to enter the utility room from the garage. H.F. asked Lacey why he was in the house. When Lacey failed to respond, H.F. inquired again and Lacey stated he had to use the restroom. Believing Lacey lacking in truthfulness, H.F. accused him of burglarizing the house. Lacey then ran from the scene. H.F. attempted to pursue him, but could not keep pace. When H.F. returned to his home, he discovered $152 in cash missing from his wallet in his bedroom. H.F. contacted the police, and two officers came to his house. He provided a description of the intruder to them.
Police apprehended Lacey shortly after speaking with H.F. Police Officer W.R. Chisholm recovered exactly $152 from Lacey's person. H.F. identified Lacey as the person who burglarized his house.
Photos of H.F.'s residence later introduced by Lacey at trial show the house to have two stories, with an attached two-door garage extending to the side. The garage shares a roof with the first floor of the house so that the roof over the main portion of the dwelling and the roof over the garage form one single roof. The brickwork on the first floor of the house also extends to the garage so that one wall covers both.
A grand jury indicted Lacey for third or subsequent offense petit larceny and statutory burglary. Lacey was tried by a jury on February 13, 2008.
Lacey made a motion to strike the statutory burglary charge on the basis that the Commonwealth's evidence failed to show a breaking into H.F.'s house since H.F. testified the garage door was open and no evidence suggested Lacey entered by other means. The court denied the motion, concluding the garage was not part of the dwelling and, therefore, Lacey's actions in entering the interior of the house constituted a breaking under the statute.
On the day of trial, the parties informed the court of a stipulation regarding the third or subsequent offense petit larceny charge. The parties agreed Lacey would stipulate to the existence of two prior larceny convictions and the Commonwealth would present no evidence during the guilt phase as to those convictions. Furthermore, the jury would not be told of the stipulation. As far as the jury was concerned, Lacey would be tried for first offense petit larceny. Only if the jury convicted Lacey of first offense larceny would it be given evidence of prior convictions during the sentencing phase of trial. Lacey agreed not to object to the lack of proof of prior convictions during the guilt phase. The court agreed to the stipulation.
Nonetheless, at the conclusion of the evidence, the jury was given a verdict form stating Lacey was charged with third or subsequent offense petit larceny. One of the two options on the larceny verdict form stated: "We, the jury, find the defendant GUILTY of Petit Larceny, Third or Subsequent Offense as charged in the indictment."1 Lacey made no objection to this verdict form before the jury retired or delivered its verdict. The jury convicted Lacey on both charges.
The following day, before the sentencing phase began, Lacey moved for a mistrial based on the defective verdict form. Lacey's counsel stated he "looked at them [the verdict forms] yesterday, and I missed it yesterday." The Commonwealth agreed it also made a good faith error in overlooking the defective form. In considering the motion, the trial court noted both sides "were given the opportunity to review" the verdict form. The court further stated the parties "should have caught it." The court ultimately denied the motion for mistrial on the ground that Lacey suffered no prejudice.
The trial court entered an order finding Lacey guilty of statutory burglary and third or subsequent offense petit larceny. This appeal followed.
Lacey maintains he entered the dwelling home when he entered the attached garage through an open door and his subsequent breaking into the utility room constituted a breaking within a dwelling house, not a breaking into a dwelling house. We agree.
Under well established principles, we "consider the evidence and all reasonable inferences fairly deducible therefrom in the light most favorable to the Commonwealth, the prevailing party below." Walker v. Commonwealth, 272 Va. 511, 513, 636 S.E.2d 476, 477 (2006). We will affirm "the judgment of the trial court unless it is plainly wrong or without evidence to support it." Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414 (2008).
On the other hand, statutory interpretation presents a pure question of law receiving de novo review. Wright v. Commonwealth, 275 Va. 77, 80-81, 655 S.E.2d 7, 9 (2008). Our primary goal in interpreting a statute "is to ascertain and give effect to legislative intent." Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). To this end, the Court determines "the General Assembly's intent from the words contained in a statute." Washington v. Commonwealth, 272 Va. 449, 455, 634 S.E.2d 310, 313 (2006). "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)). We strictly construe penal statutes against the Commonwealth, Welch v. Commonwealth, 271 Va. 558, 563, 628 S.E.2d 340, 342 (2006), but remember "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). Hence, "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)).
Lacey was convicted of statutory burglary under Code § 18.2-91. In relevant part, that section provides that "[i]f any person commits any of the acts mentioned in § 18.2-90 with intent to commit larceny ... he shall be guilty of statutory burglary." In turn, Code § 18.2-90 in relevant part states that "[i]f any person ... in the daytime breaks and enters ... a dwelling house ... he shall be deemed guilty of statutory burglary."2 Thus, a conviction under Code § 18.2-91 required the Commonwealth to prove (1) a breaking and entering in the daytime of (2) a dwelling house and (3) with intent to commit larceny. The presence of an intent to commit larceny is not at issue. We consider the first two elements in turn.
"A breaking for purposes of statutory burglary may be either actual or constructive." Finney v. Commonwealth, 277 Va. 83, 88, 671 S.E.2d 169, 172 (2009). An actual breaking merely requires " " Johnson v. Commonwealth, 221 Va. 872, 876, 275 S.E.2d 592, 594-95 (1981) (quoting Davis v. Commonwealth, 132 Va. 521, 523, 110 S.E. 356, 357 (1922)).
It is undisputed for purposes of this appeal that Lacey entered H.F.'s open garage in the daytime without any physical force, but employed force to enter the utility room.3 This force constituted a breaking. The question of whether Lacey broke into a dwelling home upon entering the utility room, or whether he had entered the dwelling house in the attached garage, requires greater consideration.
The Virginia Supreme Court has stated that Compton v. Commonwealth, 190 Va. 48, 55, 55 S.E.2d 446, 449 (1949). The burglary statutes exist to protect against "the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence." Yeatts v....
To continue reading
Request your trial