COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Be ales and Senior Judge Coleman Argued at Chesapeake, Virginia

MICHAEL ROMULUS JOHNS OPINION BY v. Record No. 2618-07-1 J UDGE RANDOLPH A. BEALES APRIL 14, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Johnny E. Mo rrison, Judge Sonya Weaver Roots (Weaver Law Practice, PLLC, on brief), for appellant. Alice T. Armstrong, Assistan t Attorney General II (Robert F. McDonnell, Attorney General, on brief), for appellee.
Michael Romulus Johns (appellant) a ppeals his statutory burglary conviction. 1 He contends that the building that he entered was not a “dwelling house,” and, therefore, he cannot be convicted of statut ory burglary under Code § 18.2-91. Gi ven the particular offense with which appellant was charged, we find appellant did not enter a “dwelling house,” as that term is defined under Virginia law. Therefore, we reverse and dismiss his burglary conviction.
BACKGROUND John Pouloutides, through his corporation, ow ned a house at 39 Prospect Parkway in the City of Portsmouth. The house was described at tr ial as a two-story, “single family residence.” Mr. Pouloutides was in the process of remodeling the residence. Once the renovations were

1 The trial court also convicted appellant of grand larceny. Appellant asked for review of both convictions in his petition for appeal. Howe ver, this Court grante d the petition only in relation to the statutory burgla ry conviction. Therefore, we do not address and do not disturb appellant’s conviction for grand larceny.- 2 - completed, he intended to put th e house “on the market for someone to live there.” At the time of these events, no one lived in the house. No testimony at trial indicated how long the house had been empty. Although the house had a define d living area, dining area, and kitchen, none of these areas were described as containing furn iture or any of the normal items found in an inhabited residence. The only items in the house were tools and constructi on supplies – such as a table saw, a tool belt, levelers, a skill saw, utility knives, tape measures, and sheet rock. For example, Mr. Pouloutides used the kitchen to “store[] [his] tools when [he] was not there.” During the evening of December 8, 2006, Ri chard Reeder, a neighbor on Prospect Parkway, called and told Mr. Poul outides to come to the house in Portsmouth. Mr. Pouloutides left his home in Chesapeake, drove to Portsmout h, and discovered that the front door to the Prospect Parkway house was wide open. He ente red the house and noticed that a windowpane was broken and that the window was opened. When he had left the property on December 7, 2006, the front door was locked and the window was not damaged. The house did not have electricity, and Mr. Poul outides had arrived at the residence after dark. Thus, although he noticed that a table saw was missing , Mr. Pouloutides could not determine if any other items were missing as well. Because he needed to return to his home in Chesapeake quickly, Mr. Pouloutides secured the br oken window “so that it wouldn’t be able to be opened again,” locked the front door, and le ft the house without investigating any further. When Mr. Pouloutides returned the next morning, the front door was open again. He then discovered that a different window was broken and that a pane of glas s in the rear door was broken. Mr. Pouloutides also discovered that a number of his tools were missing, including a tool belt, tape measures, a framing hammer, levelers, a skill saw, and utility knives. A few days after the break-ins, the neighbor went to a local pawnshop, and discovered several of the tools that he believed were the tools taken from Mr. Pouloutides’s house.- 3 - Mr. Pouloutides went to the pawnshop and identi fied the tools as his. The manager of the pawnshop testified at trial that, when he arrived to open the shop on the morning of December 8, 2006, appellant was waiting outside the door with some of the tools that belonged to Mr. Pouloutides. Appellant sold them to the shop and left. Appellant came back to the shop later in the day and sold more of the tools that had been taken from the house. Appellant later admitted at trial that he sold the tools to the pawnshop, but he claimed that he found the tools in a trashcan. He denied ever entering the house. Appellant was indicted for “Statutory Burglar y,” specifically that he “did break and enter in the daytime, or enter without breaking in th e nighttime, the dwelling of John Pouloutides.” The jury was instructed that, in order to convict appellant of statutory burglary, they needed to find that appellant “without permission broke and entered in the day or nighttime a dwelling house” and did so with the intent to commit larceny. At trial, once all of the testimony had been presented, the jury was excused and appellant made a motion to strike. As part of that mo tion, he argued, “[N]o one was living there. I don’t know if that qualifies as a dwelling house. I don’t know that it does. It may be affixed to the ground, but it was under construction at the time, so I don’t believe that’s within the statute for statutory burglary . . . .” The trial court denied the motion. The jury convicted appellant of statutor y burglary of a “dwelling house” and grand larceny. Appellant petitioned this Court for an appeal of both convictions . A three-judge panel of this Court granted his petiti on for appeal “only as to the qu estion of whether the house was a ‘dwelling house’” – an issue related only to th e statutory burglary conviction. Thus, we do not consider his grand larceny conviction in this appeal.- 4 - ANALYSIS Appellant argues that the residence at 39 Pr ospect Parkway was not a “dwelling house” as that term is defined for a conviction under the st atutory burglary code sections. Therefore, he contends, the trial court erred in denyi ng his motion to strike the evidence. As an issue of statutory construction, th e definition of “dwelling house” is reviewed de

novo by this Court. Giles v. Commonwealth , 277 Va. 369, 373, 672 S.E.2d 879, 882 (2009). The facts, however, are examined “in the li ght most favorable to the Commonwealth.” Id. at 375, 672 S.E.2d at 883. Code § 18.2-91, in relevant part, makes it a crime for “any person [to] commit[] any of the acts mentioned in § 18.2-90 w ith intent to commit larceny.” Code § 18.2-90 criminalizes the act of breaking and entering into various bu ildings, including a “dwelling house.” Here, pursuant to the language in the indictment and the jury instructions, the Commonwealth was required to prove that appellant broke into a “dwelling house” in order to convict him of statutory burglary. The general public may equate the term “hous e” with any building that appears from the outside to provide habitation at some time, whethe r in the past, at presen t, or in the future. However, given the previous review by the Virg inia appellate courts, “dwelling house” has a more limited meaning. 2

2 The Commonwealth claims on brief that “V irginia courts have not had occasion to address the narrow question presente d here” and cites a footnote in th is Court’s previous decision in Giles v. Commonwealth , 51 Va. App. 449, 453, 658 S.E.2d 703, 705 (2008), aff’d on alt. gds , 277 Va. 369, 672 S.E.2d 879 (2009). Technically, the Commonwealth may be correct, as the Virginia appellate courts have only addressed the definition of “d welling house” in the context of convictions under a different burglary statute – Code § 18.2- 89 – not Code § 18.2-91, under which appellant was convicted here. However, as Code § 18.2-91 explicitly references Code § 18.2-90, and that statute references Code § 18.2-89, the meaning of “dwelling house” is the same for all three statutes.- 5 - In Rash v. Commonwealth , 9 Va. App. 22, 26, 383 S.E.2d 749, 751 (1989), this Court considered a situation in which the individuals who owned the residence entered by Rash had never lived in the house, and no one had lived in the house for approximately six months prior to Rash’s break-in. Id. at 24, 383 S.E.2d at 750. The house was, however, fully furnished when Rash entered, as the owners were preparing it for sale. Id. Based on a review of the common law and other states’ statutes and cases, this Court reversed Rash’s c onviction, holding “that a dwelling is no longer a ‘dwelling house’ for pur poses of Code § 18.2-89 when its occupants leave it without any intention to return.” Id. at 27, 383 S.E.2d at 752. Our Supreme Court recently addres sed the issue of “dwelling house” in Giles , 277 Va. 369, 672 S.E.2d 879. There, the homeowner lived in Baltimore, Maryla nd, but also owned a house in Martinsville, Virginia, wh ich Giles broke into. The owne r stayed in the Virginia house on occasional weekends. Id. at 376, 672 S.E.2d at 883. The Vi rginia house “had active electricity and water services.” Id. The owner kept the kitchen stocked with food, he maintained sleeping quarters in the h ouse, and he had “furniture in three bedrooms, a living room, family room, and kitchen.” Id. at 375-76, 672 S.E.2d at 883. The Supreme Court found that the Virginia house was a “dwe lling house,” explaining: We hold that a house is a dwelling house pursuant to Code § 18.2-89 when the house is used for habitation, including periodic habitation. Periodic ha bitation does not requir e that the house be used at regular intervals. Rath er, periodic habitation requires that when the house is used, it is used for the purpose of habitation. Thus, a dwelling house is a house that one uses for habitation, as opposed to another purpose. Although the Commonwealth is not required to prove a structure is inhabited at regular in tervals, it must provide sufficient evidence that the structure is used as a habitation to satisfy the “dwelling house” requirem ent of Code § 18.2-89. Id. at 375, 672 S.E.2d at 883.- 6 - Thus, based on the Supreme Court’s holding in Giles and this Court’s case law, the basic issue in determining whether a residence constitu tes a “dwelling house” is whether it is used for habitation, such as sleeping and other usual activitie s of life, on at least an occasional basis. See id. (finding the house was a “dwell ing house” because it was “used periodically for the purpose of habitation”); Rash , 9 Va. App. at 27, 383 S.E.2d at 752 (fi nding the house was not a “dwelling house” because no one actually lived there or intended to inhabit the home occasionally). Here, reviewing the evidence in the light most favorable to th e Commonwealth, the record contains little to suppor t the Commonwealth’s contention that, similar to the house in Giles , 3 Mr. Pouloutides’s building was a “dwelling house” for purposes of the burglary statutes. Mr. Pouloutides himself testified that he lived elsewhere and was remodeling the house for sale , not so his own family could live there. Mr. Poulou tides did not testify that he ever slept or lived there, had ever slept or lived ther e, or ever intended to sleep or live there. Instead, his testimony indicated that he owned the bui lding, through a corporation, as a business investment–not for habitation. In addition, none of the evidence suggested that anyone who had lived there at one time intended to return and resume living in the house after the rem odeling was completed. Mr. Pouloutides’s testimony that the house would be placed “on the market for someone to live there,” indicated that a future owner (or renter) woul d live in the house after the completion of his work. In fact, no one slep t in the house, even on an irre gular basis. The house had no electricity, there were construc tion tools throughout the kitchen, there we re drywall sheets upstairs that needed to be in stalled, and, apparently, the house was completely unfurnished. Thus, unlike in Giles , no one was using this house for the us ual activities of life, no previous

3 The Commonwealth on appeal based its ar gument on this Court’s published opinion in Giles . However, after oral argument in this cas e, the Supreme Court issued its opinion in Giles , announcing that, “Although we agree with the Court of Appeals’ co nclusion that the house was a dwelling house as contemplated by Code § 18.2- 89, we disagree with th e Court of Appeals’ analysis.” 277 Va. at 374, 672 S.E.2d at 882.- 7 - resident intended to return and use the house as a “dwelling house,” and the house was not maintained for immediate occupancy. 4 Id. at 375-76, 672 S.E.2d at 883. This record contains no evidence that this house was used for habitation. No one slept there or even used it for the other usual activitie s of life. The record also contains no evidence that anyone who had used the home for habitation had any intention of resuming that use. Thus, given the totality of the circum stances that exist here, we fi nd that the house at 39 Prospect Parkway was not a “dwelling house” under the statutor y burglary statute when appellant entered and stole the tools. The trial c ourt, therefore, erred in denying appellant’s motion to strike the evidence. The evidence in this record does not support a finding that appellant broke into a “dwelling house,” as charged in the indictment and as presente d in the jury instructions.
CONCLUSION We find the evidence was not sufficient to pr ove that appellant broke into a “dwelling house,” and the trial court should have granted appellant’s motion to strike the evidence. Therefore, we reverse appellant ’s statutory burglar y conviction and dism iss the indictment. Reversed and dismissed.

4 This case does not present a situation wh ere the inhabitants m oved out of a dwelling during remodeling, with the intention of returnin g to the dwelling after the completion of the work. To comment on such a situati on in this case would be dicta.