COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Willis and Bumgardner 

Argued at Salem, Virginia 

DONNY LEWIS FRANKLIN, JR. 

 OPINION BY 

v. Record No. 3028-97-3 JUDGE JERE M. H. WILLIS, JR. 

 DECEMBER 29, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE 

Clifford R. Weckstein, Judge 

 (Paul F. Fantl; Office of the Public 

Defender, on brief), for appellant. 

Appellant submitting on brief. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (Mark L. Earley, Attorney General; 

Ruth Ann Morken, Assistant Attorney General, 

on brief), for appellee. 

 On appeal from his conviction in a bench trial for statutory 

burglary with intent to commit assault, in violation of Code 

§ 18.2-91, Donny Lewis Franklin, Jr., contends that the evidence 

fails to prove his entry into the subject premises and, thus, is 

insufficient to sustain his conviction. We disagree and affirm 

the judgment of the trial court. 

 On appeal, we view the evidence in the light most favorable 

to the Commonwealth, granting to it all reasonable inferences 

fairly deducible therefrom. See Higginbotham v. Commonwealth, 

216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The judgment of 

the trial court sitting without a jury will not be set aside 

unless plainly wrong or without evidence to support it. Martin 

v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). 
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 During the evening of June 30, 1997, Franklin went to the 

home of Lashane Turner, his former girlfriend and the mother of 

his two children. Franklin pounded on the door and threatened to 

kill Turner when she refused to admit him. She moved a couch in 

front of the door. However, Franklin managed to break the lock 

and splinter the door, and inserted his arm and shoulder through 

the opening into Turner's apartment. Turner's neighbor, Lisa 

Parker, called the police. When a security guard arrived, 

Franklin fled. 

 If any person [in the nighttime enters 

without breaking or in the daytime breaks and 

enters] with intent to commit assault and 

battery, he shall be guilty of statutory 

burglary . . . . 

Code § 18.2-91. Franklin contends that because the statute 

provides no definition of "entry," it should be read to require 

entry of the entire person. He argues that because only his arm 

and shoulder entered Turner's apartment, the evidence fails to 

support his conviction. We do not interpret the statute thus. 

 This case raises an issue of first impression. No previous 

Virginia case addresses directly what constitutes a burglarious 

entry. However, 

 [t]he common law of England, insofar as it is 

not repugnant to the principles of the Bill 

of Rights and Constitution of this 

Commonwealth, shall continue in full force 

within the same, and be the rule of decision, 

except as altered by the General Assembly. 

Code § 1-10. Under common law, an entry occurs when any part of 

the body enters a dwelling. See Roger D. Groot, Criminal 
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Offenses and Defenses in Virginia 62 (3d ed. 1994). The 

legislature has not altered this definition of an entry. 

Therefore, Franklin's intrusion of his arm and shoulder into 

Turner's apartment constituted an entry under Code § 18.2-91. 

The judgment of the trial court is affirmed. 

 Affirmed.