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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