Yaconis v. Commonwealth

• Court: Virginia Court of Appeals
• Writing for the Court: MEMORANDUM OPINION BY JUDGE D. ARTHUR KELSEY
• Decision Date: 29 July 2014
• Docket Number: Record No. 1363-13-1
• Citation: Yaconis v. Commonwealth, Record No. 1363-13-1 (Va. App. Jul 29, 2014)
• Parties: PHILLIP DAVID YACONIS v. COMMONWEALTH OF VIRGINIA

PHILLIP DAVID YACONIS v. COMMONWEALTH OF VIRGINIA

Record No. 1363-13-1

COURT OF APPEALS OF VIRGINIA

JULY 29, 2014

UNPUBLISHED

Present: Judges Kelsey, Beales and Decker

Argued at Chesapeake, Virginia

MEMORANDUM OPINION^* BY

JUDGE D. ARTHUR KELSEY

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH

James C. Hawks, Judge

W. McMillan Powers, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Eugene Murphy, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

A jury convicted Phillip David Yaconis of statutory burglary, petit larceny, and larceny with intent to sell or distribute. On appeal, Yaconis challenges his burglary conviction, claiming that the jury improperly found him guilty on insufficient evidence and that the trial court improperly excluded relevant evidence. Yaconis also contends that the jury rendered inconsistent verdicts and that the trial court erroneously imposed a suspended sentence pursuant to Code § 19.2-295.2(A). Finding no merit in these arguments, we affirm his convictions.

I.

When presented with a sufficiency challenge on appeal, we review the evidence in the "light most favorable" to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). This principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable tothe Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and internal quotation marks omitted). In determining whether there is sufficient evidence to sustain a conviction, moreover, an appellate court must consider "all the evidence" admitted at trial that is contained in the record. Hamilton v. Commonwealth, 279 Va. 94, 103, 688 S.E.2d 168, 173 (2010) (quoting Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586 (2008)).

So viewed, the record shows that Gary Witherow owned a home in Portsmouth in May 2013. He described it as a "second dwelling" for his family. App. at 62. His wife had lived in the home for a year and had left in October 2012 so Witherow could personally perform some renovations. Witherow testified that his wife intended to return to the home when the renovations were finished. During her temporary absence, all of her furniture, family pictures, and personal belongings remained in the home. Utility service to the home (electricity, water, and gas) remained available during the renovations, although Witherow manually turned off many of the services at the home while performing his repairs.

One evening in January 2013, police officers responded to a report about Witherow's home. When they arrived to investigate, they discovered a broken window on the back door of the residence. The officers also noticed insulation and other debris in the backyard. Inside the home, they found "what appeared to be fresh blood" on a bathroom sink and a shirt "that was completely soaked in what appeared to be blood" in a bedroom. Id. at 96. Just outside the front entrance of the home, they found a bag of numerous cut copper pipes with blood on them. The bag also included a video camera and a stocking cap full of pennies.

The police searched the neighborhood and found Yaconis under a car in the fenced-in backyard of a residence that was "almost directly across the street" from Witherow's home. Id.at 101. His hand was bleeding. After his arrest, Yaconis confessed that he entered the home through the back door and took the stocking cap full of pennies worth about three dollars, although he denied breaking the glass on the door. He also admitted taking the bag of copper pipe from the adjacent shed.¹ Yaconis said that he then took the bag of copper pipe back into the home, exited through the front door, and left the bag on the front porch. He stated that he took the copper pipe, which had a value of more than two hundred dollars, and intended to sell it for scrap.

Prior to trial, the Commonwealth's attorney moved to exclude any mention of the fact that Witherow's house had been condemned in November 2012. She proffered that although the power company had not stopped service to the house, Witherow "had turned the power off himself at one point." Id. at 10-11. The house was then condemned for the "technicality" of "the power being off." Id. at 11. The trial court found the condemnation of Witherow's house to be "irrelevant and misleading," id. at 24, because "the fact that the City had issued some sort of condemnation is misleading and not really probative of anything," id. at 25. The trial court noted that "all the underlying details" and "factors regarding the status of the house" could still be mentioned, including "whether it has electricity or water." Id. at 24-25.

The jury convicted Yaconis of statutory burglary, petit larceny, and larceny with intent to sell or distribute. The trial court imposed the sentence fixed by the jury and added a postrelease supervision term required by Code § 19.2-295.2(A).

II.

On appeal, Yaconis asserts nine assignments of error, which cluster into four arguments. First, he challenges his statutory burglary conviction, claiming that the evidence was insufficient to prove that the home was a dwelling and that Yaconis had the requisite burglarious intent. Second, Yaconis contends that the trial court erroneously refused to admit his evidence that the home had been condemned. Third, he argues that the jury rendered inconsistent verdicts. And last, he asserts that the trial court erroneously imposed the postrelease supervision term required by Code § 19.2-295.2(A).

A. EVIDENTIARY SUFFICIENCY²

When reviewing factfinding, "[a]n appellate court does not 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). "Rather, the relevant question is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Id. (quoting Jackson, 443 U.S. at 319). When a jury has rendered its verdict, "it is not for this court to say that the evidence does or does not establish his guilt beyond a reasonable doubt because as an original proposition it might have reached a different conclusion." Cobb v. Commonwealth, 152 Va. 941, 953, 146 S.E. 270, 274 (1929). Suffice it to say, "[a]n appellate court is no substitute for a jury." Id.

1. Burglarizing a "Dwelling House"

Yaconis stands by his confession that he entered the home, but claims that, as a matter of law, it could not be considered a "dwelling house" for purposes of the offense of burglary. See Appellant's Br. at 15. We disagree.

Commonly called statutory burglary, a violation of Code § 18.2-91 requires among other things that the burglary involve the "dwelling house of another." The burglary statutes do not define "dwelling house" but instead codify its traditional common law meaning. Rash v. Commonwealth, 9 Va. App. 22, 26, 383 S.E.2d 749, 751 (1989).

Burglary was, at common law, primarily an offense against the security of the habitation, and that is still the general conception of it. A difference is recognized between the crime of wrongfully entering in the night a house where people live and the crime of entering a house where chickens roost.

Compton v. Commonwealth, 190 Va. 48, 55, 55 S.E.2d 446, 449 (1949).

It is unnecessary that individuals actually live in the home at the very moment of the burglary, so long as the character of the home remains a place capable of habitation and is used at least for "periodic habitation." Giles v. Commonwealth, 277 Va. 369, 375, 672 S.E.2d 879, 883 (2009). "Periodic habitation," however, "does not require that the house be used at regular intervals." Johns v. Commonwealth, 53 Va. App. 742, 747, 675 S.E.2d 211, 214 (2009) (quoting Giles, 277 Va. at 375, 672 S.E.2d at 883). It is enough merely that "when the house is used, it is used for the purpose of habitation . . . as opposed to another purpose." Id. The purpose of habitation can be shown by evidence of prior or present use, anticipated future use, the presence of furniture and furnishings, the availability of utility service, and similar "indicia of habitation." Giles, 277 Va. at 375, 672 S.E.2d at 883. None of these characteristics is indispensable, but one or more must be present for a house to be fairly called a dwelling house.

It is also legally immaterial that the prosecution cannot prove "the regularity of use in a temporal sense" because "[t]here is no such frequency requirement." Id. at 374, 672 S.E.2d at 883. In other words,

[a] structure does not have to be physically inhabited every day or week or month to be a dwelling house. . . . The danger to personal safety that is sought to be protected does not dissipate simply because the structure is not occupied on a regular basis. The danger continues irrespective of frequency of habitation so long as when the structure is used, it is used for the purpose of habitation. A dwelling house does not lose its character as such simply because a person is absent for either a regular or irregular period of time.

Id. at 374-75, 672 S.E.2d at 883.³ An infrequently used "vacation home," "a summer cottage" used only for a couple of months, and even "a weekend house" used only for a handful of days each month, can all qualify as dwelling houses for purposes of statutory burglary. Id. at 375, 672 S.E.2d at 883 (citing Gillum v. State, 468 So.2d 856, 859 (Miss. 1985); State v. Albert, 426 A.2d 1370, 1374 (Me. 1981)).

Whether the evidence satisfies the legal definition of dwelling house presents a question of fact. In this case, ample evidence supports the rationality of the jury's finding that the Witherow home was a dwelling house. Witherow testified that

¦ the house was a "second

...