COURT OF APPEALS OF VIRGINIA

Present: Judg es Benton, Willis and Clements Argued at Salem, Virginia

PAUL DWAIN BARTS MEMORANDUM OPINION * BY v. Record No. 0556-01-3 JUDG E 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 Appell ate Counsel (Public Defender Commission, on briefs), for appellant. Eugene Murphy, Assi stant Attorney General (Randolph A. Beales, At torney General, on brief), for appellee.

On appeal from his convictions in a benc h trial of burglary, in violation of Code § 18.2-89, and petit larc eny, in vi olation of Code § 18.2-96, Paul Dwain Barts cont ends that th e trial court erred in finding the house he broke and en tered was a dwelling house for the pu rposes of Code § 18.2-89. We reverse the burglary conviction and order the bu rglary charge dismissed. 1

I. BACKGROUND On October 20, 2000 , Barts broke an d entered a ho use owned by Edward Taylor at 114 Carrollton Road in Da nville. 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 un til April 2000 , when he and his wife moved to Ro cky Mount. Ta ylor's daughter remained in the home until July 2000 . When the home was vacated, Taylor began renovating and remodeling it. At approximatel y 7:00 p.m. on October 19, 2000, Ta ylor left the premises. He turned off the el ectricity and lock ed the house. At approximately 6:15 a.m. the following mornin g, a neighbor, hearing noises, lo oked out the window and saw someone removing a refrigerator. The police responded an d arrested Barts. Barts was convic ted of burglary and pe tit larceny. He was sentenced to seven ye ars imprisonment for burglary and twelve months imprisonment plus a one hundred do llar fine for petit larceny. The co urt suspended the seven years and twelve months imprisonment upon condition that Barts se rve 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 dw elling house. He argues that the house was no lo nger a dwelling house for purposes of Code § 18.2-89. We agree. The term "dwelling ho use" is not de fined in Code § 18.2-89. However, we addr essed what constitutes a "dwelling ho use" under the code in Rash v. Co mmonwealth , 9 Va. App. 22, 383 S.E.2d 749 (1989). Rash was conv icted of burglary unde r Code § 18.2-89 for breaking and entering the dwelling house of John Powell. The

- 2 -evidence disclosed th at the house was owne d by Powell and his sister, neither of whom had ever lived ther e. Powell's nephew had lived in the house for a brief period, but, at the time of the break-in, the house was un occupied. Id. at 24, 383 S. E.2d at 750. Powell testified that at the time of the break-in, he and his sister were preparin g to put the house up for auction. It remained fully furnishe d. He checked on th e house peri odically and kept the grass mowed. We reversed Rash's burglary conviction, holding that the house was not a "dwelling hous e" 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 'dwe lling house' in Code § 18.2-89 means a place which huma n beings regu larly use for sleeping." Id. at 26, 383 S.E.2d at 751. As su ch, a "dwelling is no longer a 'dwelling house' for the purposes of Code § 18.2-89 when its occupants leav e it without any inte ntion 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.

- 3 -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.

- 4 -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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