COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Huff, Judges Petty and Beales 

Argued at Richmond, Virginia 

WALTER JAMES GRAVES 

 MEMORANDUM OPINION*

 BY 

v. Record No. 1341-16-2 CHIEF JUDGE GLEN A. HUFF 

 MAY 23, 2017 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF SUSSEX COUNTY 

Nathan C. Lee, Judge 

 Eric J. Livingston (Livingston and Walsh, PLLC, on brief), for 

appellant. 

 Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. 

Herring, Attorney General, on brief), for appellee. 

 Walter James Graves (“appellant”) appeals his conviction of breaking and entering, with 

the intent to commit a felony, in violation of Code § 18.2-91.1

 Following a bench trial in the 

Circuit Court of Sussex County (“trial court”), appellant was sentenced to twenty years’ 

incarceration, with sixteen years suspended. On appeal, appellant contends that the trial court 

erred by “convicting [appellant] of breaking and entering on May 5, [2015] because at the time 

of the alleged offense he had never voluntarily or involuntarily surrendered his residency and 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1

 Appellant was also found guilty of felony violation of a protective order, misdemeanor 

violating a protective order, destruction of property, and two counts of misdemeanor trespass, in 

violation of Code §§ 16.1-253.2, 18.2-60.4, 18.2-137, and 18.2-119, respectively. These 

convictions are not the subject of this appeal. 

UNPUBLISHED 
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habitation at the address and was only prohibited from being at the address by the terms of a 

Protective Order.”2, 3 For the following reasons, this Court affirms appellant’s conviction. 

I. BACKGROUND 

On appeal, “we consider the evidence and all reasonable inferences flowing from that 

evidence in the light most favorable to the Commonwealth, the prevailing party at trial.” 

Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc) 

(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed, 

the evidence is as follows. 

 In 2014, while appellant was incarcerated for offenses unrelated to this appeal, appellant 

threatened his wife, Jean Harvell Graves (“wife”), saying “[he] wished [he] had did what [he] 

said that [he] was going to do to [her] in the first place.” Appellant also wrote several letters to 

wife, blaming her for his incarceration, calling her derogatory names, and threatening to “get 

her” and to “burn[] . . . [her] house down with [her] in it.” 

 Due to appellant’s threats, wife petitioned for a protective order against appellant. The 

protective order, entered December 3, 2014, provided that until December 3, 2016, appellant was 

not to have any contact with wife and that “[wife] is granted possession of the residence 

occupied by the parties to the exclusion of [appellant]. . . . [Appellant] shall immediately leave 

 2

 Appellant further asserts in his assignment of error that: “Code § 18.2-119 which 

addresses misdemeanor trespass . . . would have been the proper charge for the May 5, [2015] 

incident.” This argument is without merit. As this Court has already articulated, “[w]here the 

circumstances surrounding an offense permit prosecution under either of two statutes, the 

selection of the statute under which to proceed is a matter of prosecutorial election. We cannot 

gainsay the exercise of that right.” Smith v. Commonwealth, 17 Va. App. 37, 41, 434 S.E.2d 

914, 916 (1993) (citing Mason v. Commonwealth, 217 Va. 321, 323-24, 228 S.E.2d 683, 684 

(1976)). 

3

 Appellant does not challenge the sufficiency of the evidence to prove his felonious 

intent; accordingly, this Court does not address it. 
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and stay away from the residence; however, no such grant of possession shall affect title to any 

real or personal property.” Appellant was served with the protective order on December 3, 2014. 

 Despite this protective order, on May 2, 2015, around 10:30 a.m. appellant was at wife’s 

residence, “kicking at the back door.” Wife turned on her home alarm system and attempted to 

use her landline telephone but found it inoperative. She then used her cell phone to call the 

sheriff’s office. After appellant had kicked the door for five or six minutes, wife heard a noise 

outside of her bedroom window. Looking out of her bedroom window, wife saw appellant 

standing near her electrical meter with his arms raised. Soon after, the electricity to the house 

was disabled. 

 Law enforcement arrived around eleven that morning. While wife and the officer walked 

the perimeter of the house, they noted that the telephone wires were severed, the latch on the 

back door was broken and the door left slightly ajar, and the electrical meter box by wife’s 

bedroom was gone. The officer did not find appellant on the premises during his search. 

 On May 5, 2015, wife arrived home around 2:00 p.m. to meet a contractor. After 

disarming the alarm, wife felt that something was not right and began to look through each room 

in her house. When she looked in the master bedroom, she noticed the window screen was 

slashed and the storm window had been removed. She also observed that appellant’s clothes, 

which she had removed from the closet, had been rehung. As wife passed the foot of her bed, 

she saw appellant’s arm protruding from under the bed and when she looked under the bed, she 

found appellant lying face up with his eyes open. 

 After seeing appellant, wife left her bedroom and told the contractor that appellant was in 

the house. Wife, the contractor, and his assistant promptly left the house to stand in the 

driveway. About thirty seconds later, appellant came out and stated that he was only in the 

house to retrieve his identification. Appellant re-entered the house and about two minutes later, 
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walked out of the house toward wife and the contractor. Appellant shook the contractor’s hand, 

then picked up a cinder block. The contractor told appellant, “[y]ou’re not going to hurt her,” 

and appellant responded, “No, I’m not going to hurt her.” He then threw the cinder block 

through wife’s car windshield and left. 

 Appellant was later charged with breaking and entering with the intent to commit a 

felony. During his trial, appellant moved to strike the evidence on the ground that a person 

cannot burglarize his own habitation. The trial court denied the motion and found that although 

appellant had been living with wife in the house since they were married in 2008, wife had 

inherited the house from her parents prior to their marriage and appellant did not have any 

ownership interest in the property. At the close of the evidence, appellant again argued the 

charge should be dismissed because the house was his residence. The trial court denied 

appellant’s motion and found him guilty. This appeal followed.

II. STANDARD OF REVIEW 

“What the elements of the offense are is a question of law that we review de novo. 

Whether the evidence adduced is sufficient to prove each of those elements is a factual finding, 

which will not be set aside on appeal unless it is plainly wrong.” Lawlor v. Commonwealth, 285 

Va. 187, 223-24, 738 S.E.2d 847, 868 (2013). Viewing the evidence and reasonable inferences 

drawn therefrom in the light most favorable to the prevailing party, 

the question is whether any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt. . . . 

[I]f there is evidence to support the conviction, the reviewing court 

is not permitted to substitute its judgment, even if its view of the 

evidence might differ from the conclusions reached by the finder 

of fact at the trial. 

Id. at 224, 738 S.E.2d at 868 (quoting Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d 

733, 735 (2011)). 
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III. ANALYSIS 

 As used in Code §§ 18.2-90 and 18.2-91,4 “‘the term “dwelling house” . . . means a place 

which human beings regularly use for sleeping[,]’and the crime was, ‘at common law, primarily 

an offense against the security of [another’s] habitation, and that is still the general conception of 

it.’” Turner v. Commonwealth, 33 Va. App. 88, 92, 531 S.E.2d 619, 621 (2000) (alterations in 

original) (quoting Rash v. Commonwealth, 9 Va. App. 22, 25, 383 S.E.2d 749, 751 (1989)). “In 

enacting Code §§ 18.2-90 and -91, the legislature . . . [expanded] the common law to safeguard 

both conventional dwelling houses and other specified structures, ‘used as a dwelling or place of 

human habitation,’ from unlawful invasion.” Id. at 93, 531 S.E.2d at 621 (emphasis added). In 

this way, statutory burglary continues to preserve “the ancient notion that a man’s home [is] his 

castle and that he [has] the right to feel safe therein.” Rash, 9 Va. App. at 25, 383 S.E.2d at 751. 

 In Turner, this Court upheld the defendant’s burglary conviction because he was under a 

court order to have no contact with his wife, “a restriction that clearly precluded his habitation of 

the trailer” where wife resided, despite his joint ownership of it. 33 Va. App. at 94-95, 531 

S.E.2d at 622. In so ruling, this Court rejected the defendant’s argument that one could not be 

convicted of breaking and entering his own property. Id. at 93, 531 S.E.2d at 621. This Court 

reasoned that to accept the defendant’s argument would “discount[] the sanctity of habitation, 

upending the gravamen of the offense” of burglary, in violation of Code §§ 18.2-90 and 18.2-91. 

Id. Instead, this Court concluded that under the court order, “the defendant’s proprietary interest 

was relegated to wife’s superior possessory interest and right to exclusive habitation.” Id. at 

94-95, 531 S.E.2d at 622. Therefore, the “defendant’s acts in breaking and entering the home, 

 4

 Code § 18.2-90 provides, in pertinent part, that a person will be guilty of statutory 

burglary “[i]f [he] in the nighttime enters without breaking or in the daytime breaks and enters or 

enters and conceals himself in a dwelling house . . . with intent to commit murder, rape, robbery 

or arson.” Code § 18.2-91 governs if the perpetrator’s intent was, instead, to “commit larceny, 

[assault and battery,] or any felony other than murder, rape, robbery or arson . . . .” 
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accompanied by the requisite unlawful intent, offended wife’s right of habitation and constituted 

burglary in violation of Code §§ 18.2-90 and -91, notwithstanding his joint ownership of the 

property.” Id. at 95, 531 S.E.2d at 622 (emphasis added). 

 Similarly, in this case, as a result of the protective order, wife’s house was no longer 

appellant’s residence and any interest appellant had in her home “was relegated to wife’s 

superior possessory interest and right to exclusive habitation.” See id. Thus, the evidence was 

sufficient to find that appellant’s entry into wife’s house with the intent to commit a felony 

“offended wife’s right of habitation” in violation of Code § 18.2-91. See id. The fact that 

appellant’s clothing and identification were still in the house does not alter this conclusion. 

Appellant could have simply made arrangements to retrieve his personal effects rather than break 

into wife’s home (and, thereby, violate the protective order the court had put in place). The 

ruling of the trial court is affirmed. 

IV. CONCLUSION 

 For the foregoing reasons, this Court affirms appellant’s conviction. 

Affirmed.