COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Annunziata 

Argued at Richmond, Virginia 

TERRELL R. MAYO 

 MEMORANDUM OPINION* BY 

v. Record No. 0293-97-2 JUDGE JAMES W. BENTON, JR. 

 NOVEMBER 25, 1997 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

James E. Kulp, Judge 

 Andrew W. Wood (Law Office of Wood & Wood, on 

brief), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(Richard Cullen, Attorney General, on brief), 

for appellee. 

 Terrell R. Mayo was tried and convicted of grand larceny and 

of breaking and entering a dwelling with the intent to commit 

larceny. He appeals only from the statutory burglary conviction 

and contends that the evidence was insufficient to support the 

conviction. We agree and reverse the burglary conviction. 

 The evidence proved that Terrell R. Mayo was living on a 

temporary basis with his sister, Devoni Thompson. Thompson lived 

in an apartment with her two children, and Thompson had given 

Mayo permission to sleep on the sofa in her apartment. As of 

September 11, 1996, Mayo had spent the prior four days at 

Thompson's apartment and had been living with Thompson "off and 

on" for three weeks. Because Mayo had no other home, Thompson 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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allowed him to stay "until he [got] his own place." Thompson 

testified that she had to be home before Mayo could get into the 

apartment because only Thompson and her mother had keys to the 

apartment. However, whenever Mayo went out, Thompson did not 

require Mayo to return to the apartment at any certain time. 

 On the night of September 11, Thompson took Mayo to a hotel 

at 4:00 p.m. to visit a friend. Thompson returned home at 

11:00 p.m. and locked the deadbolt on her front door. She did 

not remember locking the other lock on that door, a doorknob 

lock. All windows and the patio doors were locked. The 

following morning, when Thompson was leaving her apartment, she 

noticed her television and videotape recorder were missing. 

Thompson also noticed that the front door deadbolt was unlocked. 

 The police questioned Mayo concerning the missing electronic 

equipment. Mayo responded that he felt responsible because he 

"left the door open." Mayo also said that he "just took the 

stuff and gave it to a guy." 

 On this evidence, the trial judge convicted Mayo of grand 

larceny and statutory burglary in violation of Code § 18.2-91. 

Mayo appeals only from the statutory burglary conviction. 

 To convict an accused of statutory burglary under Code 

§ 18.2-91, the Commonwealth must prove an entry to the dwelling 

of another either at nighttime without breaking or at anytime by 

breaking. See also Code § 18.2-90. The indictment charged that 

"Mayo, unlawfully and feloniously did break and enter . . . the 
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dwelling of . . . [his sister], with intent to commit larceny" in 

violation of Code § 18.2-91. Therefore, the Commonwealth was not 

required to prove the time of the offense because "breaking and 

entering of a dwelling, at any time, is the essential element of 

the offense" as charged. Griffin v. Commonwealth, 13 Va. App. 

409, 412, 412 S.E.2d 709, 711 (1991). The Commonwealth had to 

prove, however, that both a breaking and an entering occurred. 

"Like any other elements of a crime, each of these must be proved 

beyond a reasonable doubt and not left to speculation." Caminade 

v. Commonwealth, 230 Va. 505, 510, 338 S.E.2d 846, 849 (1986). 

 The evidence, however, leaves to speculation whether Mayo 

entered the apartment by breaking. The evidence proved that the 

locked windows and patio doors had not been opened. Thompson 

testified that on the morning when she discovered her property 

missing the deadbolt lock that she had locked the night before 

was unlocked. From that evidence the trier of fact could have 

inferred that Mayo entered the apartment through the front door. 

 Thompson had not told Mayo that he could not return to the 

apartment. Mayo temporarily resided in the apartment, slept on 

the sofa, and had clothing in the apartment. Moreover, the 

evidence proved that Thompson's children, whose ages were not 

proved, had bedrooms near the front of the apartment. The 

evidence also proved that Thompson's mother had a key to the 

apartment. 

 No evidence proved that Mayo used force or a device of some 
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kind to open the door. The inference that Mayo somehow broke 

into the apartment is no more reasonable than the inference that 

one of the children or the mother opened the door to give him 

entry to the apartment. Cf. Davis v. Commonwealth, 132 Va. 521, 

110 S.E. 356 (1922). The principle is well established "that 

where the evidence leaves it indefinite which of several 

hypotheses is true, or establishes only some finite probability 

in favor of one hypothesis, such evidence cannot amount to proof 

[beyond a reasonable doubt], however great the probability may 

be." Massie v. Commonwealth, 140 Va. 557, 565, 125 S.E. 146, 148 

(1924). See also Williams v. Commonwealth, 12 Va. App. 912, 918, 

407 S.E.2d 319, 323 (1991). 

 We need not address Mayo's other issues because, on the 

evidence in this record, the trier of fact could only speculate 

concerning Mayo's means of entry. The evidence failed to prove 

beyond a reasonable doubt that a breaking occurred. Accordingly, 

we reverse the conviction and dismiss the indictment. 

 Reversed and dismissed.