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 J UDGE GLEN A. HUFF MAY 23, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF SUSSEX COUNTY Nathan C. Lee, Judge Eric J. Livingston (Living ston and Walsh, PLLC, on brief), fo r appellant. Rosemary V. Bourne, Senior Assist ant Attorney General (Mark R

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

Walter James Graves (“appella nt”) appeals his conviction of br eaking and entering, with the intent to commit a fe lony, in violation of Code § 18.2-91. 1 Following a bench trial in the Circuit Court of Sussex County ( “trial court”), appellant was s entenced to twenty years’ incarceration, with six teen years suspended. On appeal, appell ant contends that the trial court erred by “convicting [appellant] of breaking and entering on Ma y 5, [2015] because at the time of the alleged offense he had neve r voluntarily or involuntaril y surrendered his residency and

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Appellant was also found guilty of felony violation of a prote ctive 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 s ubject of this appeal.UNPUBLISHED- 2 - habitation at the address and w as only prohibited from being at the address by the terms of a Protective Order.” 2, 3 For the following reasons, this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 con viction.
I. BACKGROUND On appeal, “we consider the evide nce and all reasonable inferen ces flowing from that evidence in the light most favor able to the Commonwealth, the p revailing 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 unrelat ed to this appeal, appellant threatened his wife, Jean Harve ll Graves (“wife”), saying “[he] wished [he] had did what [he] said that [he] was going to do to [ her] in the first place.” A ppellant also wrote several letters to wife, blaming her for his incar ceration, calling her derogatory names, and threatening to “get her” and to “burn[] . . . [her] house down with [her] in it.” Due to appellant’s threats, wif e petitioned for a protective o rder against appellant. The protective order, entered D ecember 3, 2014, provided that until December 3, 2016, appellant was not to have any contact with wife and that “[wife] is granted p ossession of the residence occupied by the parties to t he exclusion of [appellant]. . . . [Appellant] shall immediately leave

2 Appellant further asserts in his assignment of error that: “C ode § 18.2-119 which addresses misdemeanor trespa ss . . . 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 e ither 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 t o prove his felonious intent; accordingly, this C ourt does not address it.- 3 - and stay away from the residen ce; however, no such grant of pos session shall affect title to any real or personal property.” Appe llant was served with the prot ective 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 b ack 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 appella nt had kicked the door for five or six minutes, wife heard a noise outside of her bedroom window. L ooking out of her bedroom wind ow, wife saw appellant standing near her electrical m eter with his arms raised. Soon after, the electricity to the house was disabled. Law enforcement arrived around eleven that morning. While wif e and the officer walked the perimeter of the house, the y noted that the telephone wires were severed, the latch on the back door was broken and the door l eft slightly ajar, and the e lectrical meter box by wife’s bedroom was gone. The officer di d not find appellant on the pr emises during his search. On May 5, 2015, wife arrived home around 2:00 p.m. to meet a c ontractor. 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 notic ed the window screen was slashed and the storm window had been removed. She also observ ed that appellant’s clothes, which she had removed from th e closet, had been rehung. As wif e 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 le ft her bedroom a nd told the con tractor that appellant was in the house. Wife, the contractor, a nd his assistant promptly le ft the house to stand in the driveway. About thirty seconds later, appellant came out and s tated that he was only in the house to retrieve his identific ation. Appellant re-entered the house and about two minutes later,- 4 - walked out of the house toward wif e and the contractor. Appell ant shook the contractor’s hand, then picked up a cinder block. T he contractor told appellant, “[y]ou’re not going to hurt her,” and appellant responded, “No, I’m not going to hurt her.” He t hen threw the cinder block through wife’s car windshield and left. Appellant was later charged w ith breaking and entering with th e intent to commit a felony. During his trial, appellan t moved to strike the eviden ce on the ground that a person cannot burglarize his own habitati on. The trial court denied t he motion and found that although appellant had been living with w ife in the house since they wer e married in 2008, wife had inherited the house from her pare nts prior to the ir marriage an d appellant did not have any ownership interest in the propert y. At the close of the eviden ce, 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 offens e are is a question of law that we review de novo

. Whether the evidence adduced is sufficient to prove each of tho se elements is a factual finding, which will not be set aside on appeal unless it is plainly wron g.” Lawlor v. Commonwealth, 285 Va. 187, 223-24, 738 S.E.2d 847, 868 (2013). Viewing the evide nce and reasonable inferences drawn therefrom in the light mos t favorable to the prevailing p arty, the question is whether any rat ional trier of fact could have f ound the essential elements of the c rime beyond a reasonable doubt.

. . . [I]f there is evidence to suppor t the conviction, the reviewing court is not permitted to substitute its judgment, even if its view o f the evidence might differ from the conclusions reached by the finde r of fact at the trial. Id. at 224, 738 S.E.2d at 868 (quotin g Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d 733, 735 (2011)).- 5 - 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 securi ty of [another’s] habitation, and that is still the ge neral conception of it.’” Turner v. Commonw ealth, 33 Va. App. 88, 92, 531 S.E.2d 6 19, 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 . . . [expand ed] the common law to safeguard both conventional dwelling houses a nd other specified structure s, ‘used as a dwel ling or place of human habitation,’ from unlawful invasion .” Id. at 93, 531 S.E.2d at 621 (emphasis added). In this way, statutory burglary cont inues to preserve “the ancient notion that a man’s home [is] his castle and that he [has] the rig ht to feel safe therein.” Rash , 9 Va. App. at 25, 383 S.E.2d at 751. In Turner, this Court upheld the defendant’s bu rglary convicti on because he was under a court order to have no contact w ith his wife, “a restriction th at clearly precluded his habitation of the trailer” where wife reside d, despite his joint ownership of it. 33 Va. App. at 94-95, 531 S.E.2d at 622. In so ruling, this Co urt rejected the defendant ’s argument that one could not be convicted of breaking and ent ering his own property. Id. at 93 , 531 S.E.2d at 621. This Court reasoned that to accept the defe ndant’s argument would “discoun t[] the sanctity of habitation, upending the gravamen of the offe nse” of burglary, in violation of Code §§ 18.2-90 and 18.2-91. Id. Instead, this Court conclude d 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 night time enters without breaking or in the daytime breaks and enters or enters and conceals himself in a dwelling house . . . with inte nt 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 fel ony other than murder, rape, r obbery or arson . . . .”- 6 - 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 int erest appellant had in her hom e “was relegated to wife’s superior possessory interest a nd right to exclusive habitation. ” See id. Thus, the evidence was sufficient to find that appellant ’s entry into wife’s house wit h the intent to commit a felony “offended wife’s right of habita tion” in violation of Code § 18 .2-91. See id. The fact that appellant’s clothing and identif ication were still in the house does not alter th is conclusion. Appellant could have simply made a rrangements to retrieve his p ersonal effects rather than break into wife’s home (and, thereby, vi olate the protective order th e court had put in place). The ruling of the trial court is affirmed.
IV. CONCLUSION For the foregoing reasons, this Court affirms appellant’s conv iction. Affirmed.