COURT OF APPEALS OF VIRGINIA

Present: Judges Decker, Russell and Senior Judge Felton Argued at Norfolk, Virginia

CHARLES JAYSON BECK, S/K/A CHARLES JASON BECK OPINION BY v. Record No. 0997-15-1 JUDGE WESLEY G. RUSSELL, JR. APRIL 26, 2016 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge Ben Pavek, Assistant Public Defender, for appellant. Aaron J. Campbell, Assistant A ttorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Appellant, Charles Jayson Beck , was convicted in a bench trial of breaking and entering in violation of Code § 18.2-91, gran d larceny in violation of Code § 18.2-95, and obtaining money by false pretenses in viola tion of Code § 18.2-178. 1 On appeal, appellant first argues the evidence is insufficient to prove a burglary because the evidence showed appe llant broke with in a dwelling

rather than broke into a dwelling. In the altern ative, appellant argues the trial court erred in convicting him of burglary because the evidence failed to prove beyond a reasonable doubt whether the offense occurred during the da ytime or during the nighttime. For the reasons that follow, we affirm appellant’s bu rglary conviction.

1 Appellant did not appeal his conviction for obtaining money by false pretenses. He did appeal his conviction for grand larceny; however, this Court did not grant his petition for appeal as it relates to that conviction.PUBLISHED- 2 - BACKGROUND “Under well-settled principles of appellate review, we consid er the evidence presented at trial in the light most favorable to th e Commonwealth, the prev ailing party below.” Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E .2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008 )). This principle requires us to

“discard the evidence of the accuse d in conflict with that of th e Commonwealth, and regard as

true all the credible evidence favorable to the Co mmonwealth and all fair inferences to be drawn therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis, citation, and internal quotation marks omitted). Colleen Shook (“Shook”) lived with her so n in a single family home in Hampton. Previously, to provide a place fo r her mother to live, Shook converted three bedrooms within the house into what she described as a separate ap artment, comprised of its own living quarters, including a kitchen containing a refrige rator, stove, and dishwasher. Although the apartment was initially inte nded for use by Shook’s mother, Shook made it available for rent once her mother no longer used the apartment. Appellant and his mother were tenants in the apartment in September of 2013. The apartment has its own entrance and is connected to the Shooks ’ living quarters by a utility room that houses laundry facilities. The utility room has three doors—one leading to the apartment, one to the Shooks’ living quarter s, and the third to the garage. The u tility room is the sole passageway between the apartment and the Shooks’ living quarters. Shook testified the appellant ne ver had permission to enter he r side of the home, although there were times when he was there by invitation. The door from the Shooks’ living quarters to the laundry room was always closed. It is und isputed that appellant had permission to use the utility room and that, in at least some circumstances, he had permission to access the garage.- 3 - On September 20, 2013, Shook discovered that tw o guitars and thirty pieces of jewelry were missing from the Shooks’ living quarters. On September 23, 2013, appellant pawned one of the guitars at a local pawn shop. At trial, appellant admitted to pawning the guitar, but claimed that he had permission to do so.

At the close of the Commonwealth’s evidence , appellant made a mo tion to strike. In denying the motion, the trial court, recognizing the garage and utility room as co mmon areas, stated that “the evidence that is presented . . . establ ished that Mrs. Shook ha d separated or created a separate place by the renovation project. . . . [H]er mother had a separate apar tment . . . .” At the close of all the evidence and arguments of counsel, the court ruled that appellant’s apartment was “separate and distinct from where the Shooks were living . . . ,” and, accordingly, found appellant guilty of burglary. This appeal follows.

ANALYSIS “[A]t common law, [burglary was] primarily an offense against the security of the habitation, and that is still the general conception of it.” Compton v. Commonwealth, 190 Va. 48, 55, 55 S.E.2d 446, 449 (1949). Although the burglary statutes contain varied elements, their unifying purpose is based primarily upon a recognition of the dangers to personal safety created by the usual burglar y situation—the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. Rash v. Commonwealth, 9 Va. App. 22, 25, 383 S.E.2d 749, 751 (1989) (quotation marks and citation omitted). Appellant was convicted of burglary in violatio n of Code § 18.2-91. In pertinent part, the statute provides that “[i]f any pe rson commits any of th e acts mentioned in § 18 .2-90 with intent to- 4 - commit larceny . . . he shall be gu ilty of statutory burglary.” Code § 18.2-90 includes the acts of either entering a dwelling house in the nighttime or breaking an d entering into a dwelling house in the daytime. See also Grimes v. Commonwealth, 288 Va. 314, 317, 764 S.E.2d 26 2, 264 (2014) (“Code § 18.2-90 includes the act of breaking and entering into a dwelling house in the daytime.”). Appellant argues that the eviden ce was insufficient to establish the elem ents of statutory burglary in violation of Code § 18.2-91. First, he argues that, at most, the evidence showed that any breaking occurred within a single residence, and thus, the evid ence did not establish the necessary entry into a dwelling. 2 Second, he argues that the evidence did not establish that he either entered a dwelling during the nighttime or that he broke and en tered into a dwelling in the daytime. Because appellant is challenging the sufficiency of the evidence, we, as noted above, review the evidence in the light most favorab le to the Commonwealth, the prevailing party below, and grant it all reasona ble inferences from the evidence. Parks, 221 Va. at 498, 270

S.E.2d at 759. We “will reverse a judgment of the circuit court only upon a showing that it is plainly wrong or without evidence to suppor t it.” Singleton v. Commonwealth, 278 Va. 542, 548, 685 S.E.2d 668, 671 (2009) (citation omitted); see also Code § 8.01-680.

I. The evidence was sufficient to allow the tr ial court to conclude that the Shooks’ living quarters and appellant’s apartment were se parate dwellings that share common areas Relying heavily on our deci sions in Hitt v. Commonwealth, 43 Va. App. 47 3, 598 S.E.2d 783 (2004), and Lacey v. Commonwealth, 54 Va. App. 32, 675 S.E.2d 846 ( 2009), appellant argues that the Shooks’ living quarters, the utility room, the a ttached garage, and appe llant’s apartment are

2 Appellant consistently has maintained th at he neither broke nor entered the Shooks’ living quarters and that he did not commit lar ceny therein; however, he recognizes that, by convicting him of the larceny, the trial court necessarily found that he did enter the Shooks’ living quarters.- 5 - all parts of the same dwelling, an d therefore, appellant cannot be co nvicted of burglary. He reasons that instead of breaking into a dwelling, the evidence, at most, shows he broke within a dwelling. Appellant correctly notes that, in Hitt, we held that the burglary statutes required breaking and/or entering into a dwelling as opposed to within a dwelling. 43 Va. App. at 483, 598 S.E.2d at 788. Specifically, we adopted Hitt’s argument th at he could not have committed a statutory burglary of a locked bedroom in a house where he was otherwise authorized to be because the

locked bedroom and the remainder of the house we re all part of one “dwelling.” Id. at 479, 598

S.E.2d at 786. Although appellant correctly has stated its gene ral rule, Hitt does not provide the rule of decision in the instant case. Rather, it simply fr ames the question: Did the evidence necessarily

establish that the Shooks ’ living quarters were part of the same “dwelling” as appellant’s apartment or other areas of the struct ure where he was authorized to be? Appellant argues that our decision in Lacey comp els that this question be answered in the affirmative. In Lacey, we concluded that the at tached garage was part of the same dwelling as the rooms where the larceny had oc curred. Specifically, referenci ng the particular facts in the case, we concluded that the attached garage was part of the dwelling house for purposes of the burglary statute. Photos of th e house introduced at trial plainly show the garage is an integrated part of the whole house. The garage shares a roof and wall with the other portions of the house. The garage also connects interior ly with other portions of the house. Lacey took advantage of th is to enter the open garage, pass into the utility room, steal money from [the victim’s] bedroom, and then exit the garage again. Furthermore, [the victim] uses the garage for ordinary household functi ons. He testified he stored the tree pruner in the garage and that he was preparing to sharpen it in the garage when he first noticed Lacey. Under such circumstances, the attached garage represented another room of the dwelling. 54 Va. App. at 43, 675 S.E.2d at 852 (footnote om itted); see also Grimes, 288 Va. at 318-19, 764 S.E.2d at 265 (holding that because the crawlspace at issue was “s tructurally part of the house,”- 6 - it fell “within the plain meaning of the term ‘d welling house’” for the purposes of statutory burglary). 3 Appellant correctly points out that the garage (and by extens ion, the utility room) in this case shares many characteristics with the garage in Lacey. In both cases, the garages were under a single roof, shared walls with th e remainder of the structure, we re utilized by the residents for multiple purposes, were connected by doors that c ould and were used for ingress and egress, and, as originally constructe d, functioned as part of a single-family home. While the similarities between the garages ar e many, there is a significant difference. Although, as originally constructed, both garages served single-family homes that were unquestionably part of an undivided whole, the gara ge in this case no longer does. The law has long recognized that joint access to common areas in a multi-unit apartment complex or rooming house does not render it impossible for a resident of that complex or rooming house to burglarize other units within the complex or rooming hous e. See generally Clarke v. Commonwealth, 66 Va. (25 Gratt.) 908, 919 (1874) (r ecognizing that, although a pers on cannot burglarize his own room/residence in a multi-person rooming house, he may commit a burglary as to rooms rented by others). As a modern commentator has noted, [i]f several people occupy the same dwelling, none may commit a burglary thereto as it is not the prope rty of another. However, if a portion of the structure has been se t aside for one resident, as in letting an apartment, any of the others (including the owner) could commit a burglary into that portion of the dwelling.

3 Whether a garage, crawlspace or other ar ea constitutes part of a dwelling is, by necessity, a fact-driven inquiry. The conclusions of the Virginia Supreme Court in Grimes and this Court in Lacey were expressly tied to the pa rticular facts and circumstances of those cases. See Grimes, 288 Va. at 319, 764 S. E.2d at 265 (holding that, “ [b]ased on the facts here , the crawl space falls within the pl ain meaning of the term ‘dwelling house’” (emphasis added)); Lacey, 54 Va. App. at 43, 675 S.E.2d at 852 (tying the resolution of the issu e to the particular “circumstances”).- 7 - Wayne R. LaFave, Substantive Criminal La w § 21.1(c), at 214 (2nd ed. 2003) (footnotes omitted). Thus, if the factfinder reasonably could c onclude that the garage and utility room were common areas between separate apartments, appellant’s argument fails. On this record, the factfinder reasonably coul d and, in fact, did conc lude that the Shooks’ living quarters and the apartment were separate dwellings and that the garage and utility room

constituted common areas. The tr ial court noted that, in undert aking the construction of the apartment for her mother, Shook “created a se parate place” that constituted “a separate apartment.” Based on all of the evidence, we cannot say that the trial court’s finding that the apartment was “separate and dis tinct from where the Shooks were living” is plainly wrong or without evidence to support it. Accordingly, we must affirm the trial court’s conc lusion in this regard. Kelley v. Commonwealth, 289 Va. 463, 468, 771 S.E.2d 672, 674 (2015). In reaching this conclusion, we note that we examine a factfinder’s conclusions “with the highest degree of appellate deference.” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633 S.E.2d 229, 231 (2006). “An appellate c ourt 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)). Instead, the only “relevant question is, after reviewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the essential elements of the crime beyond a r easonable doubt.” Sullivan v. Commonwealth, 280 Va. 672, 676, 701 S.E.2d 61, 63 (2010) (emphasis adde d). Here, for the reasons stated, we cannot say that the trial court wa s irrational when it concluded that the garage and utility room represented common areas shared by two se parate apartments within one complex.- 8 - II. The evidence was sufficient to allow th e trial court to conclude that appellant committed a breaking when he entered the Shooks’ living quarters Appellant argues that the eviden ce was insufficient to support the co nclusion that he committed a breaking to gain entry to the Shoo ks’ living quarters. Specifically, he argues that there was evidence that the garage door occasionally was left open, and therefore, he or another person

could have entered the garage without committing a breaking. 4 Coupling this premise with his argument that the garage and the Shooks’ living quarters are part of the same dwelling, he reasons

that the Commonwealth did not and could not prove the breaking nece ssary to support the charge of statutory burglary. We disagree. To establish a breaking for th e purposes of burglary, the Co mmonwealth need only show the application of some force, slight though it may be, whereby the entrance is [achieved]. Merely pushing open a d oor, turning the key, lifting the latch, or resort to other slight physical force is sufficient to constitute this elemen t of [burglary], so long as those acts resulted in an entrance contrary to the will of the occupier of the [property]. Finney v. Commonwealth, 277 Va. 83, 88, 671 S.E .2d 169, 172 (2009) (internal quotation marks and citations omitted) (alterations in original). Here, Shook testified that the door from the utility room into the Shooks’ liv ing quarters was always close d. Accordingly, the trial court reasonably could and, in fact, did conclude thatappellant committed a breaking when he gained access to the Shooks’ living quarters by opening the closed door. Appellant argues that, even if this is so, breaking and ente ring has still not been proven because entry to the structure could have been th rough an open garage, which he contends is part

4 Code § 18.2-90 provides that entering a dwe lling at nighttime is statutory burglary even in the absence of a breaking. Th e Commonwealth concedes that there was insufficient evidence adduced as to whether entry to the dwelling o ccurred during the daytime or at night. Although not bound by the concession, Epps v. Co mmonwealth, 47 Va. App. 687, 703, 626 S.E.2d 912, 919 (2006) ( en banc ), aff’d on other grounds, 273 Va. 410, 641 S.E.2d 77 (2007), we find it appropriate to adopt it here. Accordingly, the burden was on the Commonwealth to demonstrate that entry into the Shooks’ living quarters was accomplis hed by way of a breaking.- 9 - of the same dwelling as the Shooks’ living quarters. In short, he revives his argument that the factfinder could not conclude that the garage a nd the utility room were common areas shared by separate apartments. Because this amounts to nothing more than a restatement of the same argument that underpinned his first assignment of e rror, we reject it for the reasons stated above.

CONCLUSION Based on the evidence presented, a fact finder reasonably could conclude beyond a

reasonable doubt that the Shooks ’ living quarters and the apartmen t constituted sepa rate dwellings and that appellant committed a br eaking when he entered the Shooks ’ living quarters and committed larceny. Accordingly, we affirm his convicti on for statutory burglary in violation of Code § 18.2-91.

Affirmed.