State v. Scarberry
| Decision Date | 28 May 1992 |
| Docket Number | No. 20525,20525 |
| Citation | 418 S.E.2d 361,187 W.Va. 251 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Elmer SCARBERRY, Defendant Below, Appellant. |
Syllabus by the Court
1. Syllabus point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).
2. Syllabus point 8, State v. Crowder, 146 W.Va. 810, 123 S.E.2d 42 (1961).
Joanna I. Tabit, Deputy Atty. Gen., Charleston, for appellee.
Abishi Cunningham, Welch, for appellant.
This is an appeal by Elmer Scarberry from an order of the Circuit Court of McDowell County sentencing him to from one to ten years in the State penitentiary for daytime burglary and to twelve months in the McDowell County Jail for petit larceny. The defendant was convicted of daytime burglary of a dwelling house and stealing an electrical breaker box, the property of Johnny Williams. On appeal, the defendant claims that the structure which he broke into was not technically a dwelling house and that, as a consequence, he could not properly have been convicted of daytime burglary. He also claims that the evidence failed to establish that the breaker box was the property of Johnny Williams at the time he took it. He argues that, under the circumstances, the trial court erred in failing to direct a verdict of not guilty at the conclusion of the State's evidence and the court erred in failing to set aside the jury's verdict and in failing to enter a judgment of acquittal. After reviewing the record and the questions presented, this Court agrees with the defendant's assertions. Accordingly, the judgment of the Circuit Court of McDowell County is reversed.
The evidence in this case shows that in 1986 Johnny Williams purchased a parcel of real estate located at Rolfe, McDowell County, West Virginia. At the time there was a mobile home owned and occupied by the Crockett family located on the real estate.
Some time after Mr. Williams purchased the real estate, the Crocketts moved out of the mobile home, since they could not afford to pay for it and since they wished for the lender to repossess it. According to the evidence, after moving out of the mobile home they had no intention of returning to it, and it stood vacant for more than one year.
Further evidence showed that on March 15, 1989, the defendant, Elmer Scarberry, entered the mobile home and removed a breaker box from it. On the following day he was arrested for daytime burglary and petit larceny.
During the trial of the case, evidence was introduced showing that at the time of the breaking into the mobile home, Frank and Mary Crockett owned it. Johnny Williams, according to the evidence, was in the process of buying the mobile home, but he did not sign a written agreement to purchase it until May 2, 1989, approximately a month and a half after the defendant entered it.
In the present proceeding, the defendant correctly claims that under State v. Ocheltree, 170 W.Va. 68, 289 S.E.2d 742 (1982), for there to be a daytime burglary under W.Va.Code, 61-3-11, the breaking must have been into the dwelling house of another. The defendant further argues that the mobile home which he entered was not a dwelling house at the time he entered it, since Mary and Frank Crockett had moved out of it, since it was unoccupied, and since the Crocketts had, in effect, abandoned it without the intent of returning. Given these circumstances, the defendant claims that the evidence failed to establish an essential element of the crime of daytime burglary and that at the close of the State's case the trial court should have directed a verdict for him or at the conclusion of the trial the trial court should have set aside the jury's verdict and entered a judgment of acquittal on the burglary count.
The defendant was convicted of burglarizing the dwelling house of another in the daytime in violation of W.Va.Code, 61-3-11. That Code section, in relevant part, provides that:
(b) If any person shall, in the daytime, enter without breaking a dwelling house, or an outhouse adjoining thereto or occupied therewith, of another, with intent to commit a felony or any larceny therein he shall be deemed guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than one nor more than ten years.
That statutory language also provides:
(c) The term "dwelling house," as used in subsections (a) and (b) of this section, shall include, but not be limited to, a mobile home, house trailer, modular home or self-propelled motor home, used as a dwelling regularly or only from time to time, or any other nonmotive vehicle primarily designed for human habitation and occupancy and used as a dwelling regularly or only from time to time.
Rather clearly under the statutory language before an individual may be convicted of burglary he must actually enter a structure which is a "dwelling house." In a number of cases this Court has indicated that a building suitable for residential purposes, having been so designated and used, and being equipped with household furnishings, constitutes a dwelling house. See, e.g., State v. Louk, 169 W.Va. 24, 285 S.E.2d 432 (1981); State v. Bair, 112 W.Va. 655, 166 S.E. 369 (1932); State v. Williams, 40 W.Va. 268, 21 S.E. 721 (1895). In each of these cases, the Court addressed the question of whether a dwelling house, when temporarily unoccupied or temporarily vacated by its previous occupants, ceases to be a dwelling house. The general rule enunciated in each of the cases is that the structure remains a dwelling house, although temporarily unoccupied, if the absence of the householder is with the intent to return. See especially State v. Bair, supra. It is further recognized in the Bair case that entry of such a temporarily unoccupied building with the intent to commit a felony or any larceny therein constitutes a burglary.
Although the Court is unaware of any case in West Virginia specifically addressing the question of precisely when a structure ceases to be a dwelling house, a number of other jurisdictions have addressed that question and have, rather uniformly, concluded that a dwelling is no longer a dwelling house for purposes of a burglary statute when its occupants leave it without any intention of returning. The widely-recognized rule is set forth by the Florida court, quoting 6 Cyc. 185, and referring to several earlier cases, in Tukes v. State, 346 So.2d 1056, 1057 (Fla.Dist.Ct.App.1977), as follows:
If it [a structure which has been established as a dwelling house] is so occupied the temporary absence of the occupant will not prevent it from being the subject of burglary as a dwelling house; but a house, although furnished as a dwelling house, loses its character as such for the purpose of burglary, if the occupant leaves it without the intention to return.
A number of other courts have reached essentially the same conclusion. See Gillum v. State, 468 So.2d 856 (Miss.1985); People v. Sheirod, 124 A.D.2d 14, 510 N.Y.S.2d 945 (1987); State v. Ferebee, 273 S.C. 403, 257 S.E.2d 154 (1979); State v. Berry, 598 S.W.2d 828 (Tenn.Ct.Crim.App.1980); Rash v. Commonwealth, 9 Va.App. 22, 383 S.E.2d 749 (1989).
After examining these cases, this Court finds the reasoning of the Tukes case...
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State v. Miller
...that the grand jury indictment specifically related to the counts on which a guilty verdict was returned. In State v. Scarberry, 187 W.Va. 251, 255, 418 S.E.2d 361, 365 (1992), we recognized that "an immaterial variance [in the person's name who owned the stolen property] may be disregarded......
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State v. Duke
...as surplusage if not material. Syllabus point 8, State v. Crowder , 146 W.Va. 810, 123 S.E.2d 42 (1961).Syl. Pt. 2, State v. Scarberry , 187 W. Va. 251, 418 S.E.2d 361 (1992). Further, "[t]he variance between the indictment and the proof is considered material only where the variance mislea......
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Barker v. Gaylor, Civil Action 2:20-cv-00357
...ceases to be a “dwelling house” for purposes of § 613-11 when its occupants leave without any intention of returning. State v. Scarberry, 418 S.E.2d 361, 364 (1992). Moreover, a building must be “suitable for residential purposes” to be considered a dwelling. Id. Drawing inferences in the l......
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People v. Barney
...N.W.2d 905, 907-908). Thus, a structure is not a dwelling if the occupants leave with the intent to abandon it (see State v Scarberry, 187 W Va 251, 254, 418 S.E.2d 361, 364; State v Teasley, 719 S.W.2d 148, 150 [Tenn]; Wallace v State, 63 Md App 399, 407, 492 A.2d 970, 975, cert denied 304......