Paul Dwain Barts v. Commonwealth of VA ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis and Clements
Argued at Salem, Virginia
PAUL DWAIN BARTS
MEMORANDUM OPINION * BY
v. Record No. 0556-01-3 JUDGE JERE M. H. WILLIS, JR.
FEBRUARY 19, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF DANVILLE
James F. Ingram, Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on briefs), for
appellant.
Eugene Murphy, Assistant Attorney General
(Randolph A. Beales, Attorney General, on
brief), for appellee.
On appeal from his convictions in a bench trial of burglary,
in violation of Code § 18.2-89, and petit larceny, in violation of
Code § 18.2-96, Paul Dwain Barts contends that the trial court
erred in finding the house he broke and entered was a dwelling
house for the purposes of Code § 18.2-89. We reverse the burglary
conviction and order the burglary charge dismissed. 1
I. BACKGROUND
On October 20, 2000, Barts broke and entered a house owned by
Edward Taylor at 114 Carrollton Road in Danville. Taylor had
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Barts has not challenged his petit larceny conviction.
lived there with his wife and daughter until April 2000, when he
and his wife moved to Rocky Mount. Taylor's daughter remained in
the home until July 2000. When the home was vacated, Taylor began
renovating and remodeling it.
At approximately 7:00 p.m. on October 19, 2000, Taylor left
the premises. He turned off the electricity and locked the house.
At approximately 6:15 a.m. the following morning, a neighbor,
hearing noises, looked out the window and saw someone removing a
refrigerator. The police responded and arrested Barts.
Barts was convicted of burglary and petit larceny. He was
sentenced to seven years imprisonment for burglary and twelve
months imprisonment plus a one hundred dollar fine for petit
larceny. The court suspended the seven years and twelve months
imprisonment upon condition that Barts serve three years and six
months in the penitentiary.
II. Analysis
Barts contends that the trial court erred in finding that the
structure he broke and entered was a dwelling house. He argues
that the house was no longer a dwelling house for purposes of Code
§ 18.2-89. We agree.
The term "dwelling house" is not defined in Code § 18.2-89.
However, we addressed what constitutes a "dwelling house" under
the code in Rash v. Commonwealth, 9 Va. App. 22, 383 S.E.2d 749(1989). Rash was convicted of burglary under Code § 18.2-89 for
breaking and entering the dwelling house of John Powell. The
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evidence disclosed that the house was owned by Powell and his
sister, neither of whom had ever lived there. Powell's nephew had
lived in the house for a brief period, but, at the time of the
break-in, the house was unoccupied. Id. at 24, 383 S.E.2d at 750.
Powell testified that at the time of the break-in, he and his
sister were preparing to put the house up for auction. It
remained fully furnished. He checked on the house periodically
and kept the grass mowed. We reversed Rash's burglary conviction,
holding that the house was not a "dwelling house" within the
meaning of Code § 18.2-89. Id. Noting that burglary is
"primarily an offense against the security of habitation, id. at
25, 383 S.E.2d at 751, we held that "the term 'dwelling house' in
Code § 18.2-89 means a place which human beings regularly use for
sleeping." Id. at 26, 383 S.E.2d at 751. As such, a "dwelling is
no longer a 'dwelling house' for the purposes of Code § 18.2-89
when its occupants leave it without any intention to return." Id.
at 27, 383 S.E.2d at 752.
[Powell's nephew] left the house, and there
is no evidence in the record that he
intended to return or that the owners of the
house . . . intended to live there. In
fact, they were preparing to sell the house.
Under other circumstances, the fact that the
house remained fully furnished might be
relevant as evidence that the absent
occupant intended to return. In this case,
however, such an inference is negated by the
testimony of the owners.
Id.
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As in Rash, the evidence in this case fails to support the
trial court's finding that Taylor intended to return to the
house. Taylor testified to the following on cross-examination:
[Defense counsel]: All right. In fact, the
house sat vacant from the end of July until
even today as it is still being worked on,
right?
A: Yes sir.
Q: You've just been storing your stuff
there . . . you're getting it ready to
decide what you are going to do with it,
right?
A: Well, possibly, we are going to move
back in it.
Q: Possibly, you don't know yet?
A: That's true.
On re-direct, Taylor testified:
[Prosecutor]: Mr. Taylor, when you . . .
so, at this point, you don't know whether or
not you are going to return to that house or
not?
A: At this point in time, no. I will
either rent the house or sell it.
Taylor's testimony discloses no intent to return to the
house. The fact that he planned to rent or sell the house, as
in Rash, negates an inference that the possessions left in the
house evinced an intent to return. Therefore, the house did not
fall within the meaning of "dwelling house" under the statute
when Barts broke and entered.
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The judgment of the trial court on the burglary charge is
reversed, and the burglary charge is ordered dismissed.
Reversed and dismissed.
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