COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Benton and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

JONATHAN MICHAEL WHITAKER 

 

 MEMORANDUM OPINION BY 

v. Record No. 2050-97-4 JUDGE JAMES W. BENTON, JR. 

 JULY 7, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF STAFFORD COUNTY 

 J. Peyton Farmer, Judge 

 Patricia Kelly, Assistant Public Defender, 

 for appellant. 

 Donald E. Jeffrey, III, Assistant Attorney 

 General (Mark L. Earley, Attorney General, on 

 brief), for appellee. 

 Jonathan M. Whitaker was tried by a judge and convicted of 

breaking and entering with the intent to commit larceny, a 

statutory burglary in violation of Code  18.2-91. Whitaker 

contends the evidence was insufficient to prove a "breaking." We 

agree and reverse Whitaker's conviction. 

 I. 

 When considering the sufficiency of the evidence on appeal 

in a criminal case, this Court views 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). So 

viewed, the evidence proved that prior to trial, Whitaker pleaded 

guilty to grand larceny and possession of a firearm after having 

been convicted of a felony. The larceny was committed in the 

house of Whitaker's mother and stepfather, the same residence in 

which the burglary was alleged to have occurred. Following his 

plea, Whitaker was tried for burglary in a bench trial with two 

codefendants who were charged with multiple offenses involving 

property stolen from the house of Whitaker's mother and 

stepfather. 

 At trial, Whitaker's mother testified that before these 

events occurred Whitaker had lived "on and off" in the house. In 

1996, she and her husband, Whitaker's stepfather, had agreed to 

allow Whitaker to live in their house provided Whitaker 

maintained a job and assisted with household chores. On or 

around October 31, 1996, Whitaker's stepfather told Whitaker to 

look for another place to live because Whitaker lost his job. 

Although Whitaker never spent a night in the house after that 

day, Whitaker retained a set of keys to the house and returned to 

the house on occasion. 
 Whitaker's mother further testified that neither she nor 

Whitaker's stepfather told Whitaker he was not allowed in the 

house. Whitaker's mother testified that she had given Whitaker 

permission to enter the house to take showers, pick up clean 

clothes, or have a meal. She never asked Whitaker to return his 

house key and "never told him not to come back in the house." 

 Around mid-November, Whitaker's mother and stepfather 

noticed things were missing from the house. Whitaker's mother 

called the police to report the missing jewelry, camcorder, 

camera, camping stove, binoculars, router, and two firearms. 

Whitaker's mother and stepfather then changed the locks on the 

front door of the house. Whitaker's mother testified that 

nothing was taken after the locks were changed. She also 

testified that after she filed the report with the police, 

Whitaker admitted to her that he took the firearms. 

 Whitaker's stepfather testified that after he told Whitaker 

that Whitaker needed to look for another place to live, Whitaker 

did not "say anything one way or the other." He did not impose a 

time by which Whitaker had to leave. Although Whitaker did not 

"come back to spend the night," Whitaker left his clothes and 

personal items in the house. When asked if "Whitaker had 

permission to be in [the] house," Whitaker's stepfather 

testified, "I didn't say he couldn't be there." Whitaker's 

stepfather further testified that he did not object to Whitaker 

"coming or going, getting his personal items out of the house" 

and agreed that Whitaker "had some type of permission to be in 

there to get his clothes." 

 Whitaker's stepfather noticed the guns missing in 

mid-November, several weeks after he told Whitaker to look for 

another place to live. The police later recovered the missing 

items from several local pawn shops. In a statement to police, 

Whitaker admitted that he took two firearms, a camping stove and 

a router from his parents' house. Whitaker said that he pawned 

the camping stove and the router and that one of the 

codefendants, Harris, pawned the guns for him. Whitaker denied 

taking or pawning his mother's jewelry. 

 Over Whitaker's objection, the trial judge admitted into 

evidence a statement made to the police by Whitaker's other 

codefendant, Vasquez. Vasquez told police that after Whitaker 

got "kicked out," Vasquez drove Whitaker to the house "almost 

every day." Vasquez and Harris would sit in Vasquez's car 

smoking a cigarette while Whitaker went into the house. Whitaker 

took some rings, a circular saw, firearms and a camcorder. 

Vasquez stated that he pawned all of the items Whitaker took from 

the house. Vasquez stated that the "[f]irst few times [Whitaker] 

used his house key but after the locks were changed [Whitaker] 

went around to the back of the house and entered, but I'm not 

certain how." 

 In his defense, Whitaker testified that he called his mother 

on several occasions and asked her if he could go into the house 

to get clothes and take a shower. On the day he took the guns, 

he used his key to enter the house. In the forty minutes he was 

in the house, he showered, got some of his clothes, made phone 

calls, and ate a sandwich. He decided to take the guns when he 

"was pretty much on [his] way out the door." Whitaker testified 

that he pawned the camping stove, binoculars, and router before 

he had the confrontation with his stepfather on October 31. He 
denied taking his mother's jewelry. 

 Harris testified that on occasion he and Vasquez would wait 

outside the house for Whitaker. However, Harris did not recall 

if this was before or after Whitaker was asked to leave, and 

Harris did not know whether Whitaker was stealing anything. 

Harris recalled that Whitaker had clothes in a backpack when 

Whitaker came out of the house. Harris testified that he was not 

present when Whitaker took the firearms from the house and he 

pawned the firearms for Whitaker as a favor. Harris also 

admitted to pawning a saw and some jewelry but testified he did 

not remember where he had obtained these items. 

 The trial judge found Whitaker guilty of statutory burglary 

and sentenced Whitaker to serve concurrent sentences of eight 

years with five years and two months suspended on both the grand 

larceny and statutory burglary charges. The judge also sentenced 

Whitaker to a suspended twelve months on the firearms charge. 

 II. 

 In pertinent part, Code  18.2-90 provides as follows: 

 If any person 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 in violation of 

  18.2-77, 18.2-79 or  18.2-80, he shall be 

 deemed guilty of statutory burglary, which 

 offense shall be a Class 3 felony. However, 

 if such person was armed with a deadly weapon 

 at the time of such entry, he shall be guilty 

 of a Class 2 felony. 

Code  18.2-91 provides that "[i]f any person commits any of the 

acts mentioned in  18.2-90 with intent to commit larceny, . . . 

he shall be guilty of statutory burglary." The Commonwealth 

bears the burden of "proving beyond a reasonable doubt each and 

every constituent element of a crime before an accused may stand 

convicted of the particular offense." Martin v. Commonwealth, 13 

Va. App. 524, 529, 414 S.E.2d 401, 403 (1992) (en banc); 

see Jackson v. Virginia, 443 U.S. 307, 315-16 (1979). 

 The Commonwealth conceded at trial that no evidence proved 

the time of day Whitaker entered the residence. Therefore, in 

order to convict Whitaker under Code  18.2-91, the Commonwealth 

had to prove a breaking and entering with intent to commit 

larceny. See Code  18.2-90. Whitaker contends that the 

evidence was insufficient to prove a "breaking." 

 Breaking, as an element of the crime of 

 burglary, may be either actual or 

 constructive. There is constructive breaking 

 when an entrance has been obtained by threat 

 of violence, by fraud, or by 

 conspiracy. . . . 

 Actual breaking involves the application 

 of some force, slight though it may be, 

 whereby the entrance is effected. Merely 

 pushing open a door, turning the key, lifting 

 the latch, or resort to other slight physical 

 force is sufficient to constitute this 
 element of the crime. . . . But a breaking, 

 either actual or constructive, to support a 

 conviction of burglary, must have resulted in 

 an entrance contrary to the will of the 

 occupier of the house. 

Davis v. Commonwealth, 132 Va. 521, 523, 110 S.E. 356, 357 (1922) 

(emphasis added). 

 In Davis, the Supreme Court held that no breaking, either 

actual or constructive, was proved because the accused had a key 

to enter the house and had the right to enter the house. Id. at 

523, 110 S.E. at 357. The evidence in this case similarly proved 

that Whitaker had a key to the house and had the right to enter 

the house. Whitaker's mother testified that when Whitaker called 

her she gave him permission to enter the house and that Whitaker 

was never told that he could not enter the house. Whitaker was 

told to "look" for another place to live but was never asked to 

return the key. Whitaker's stepfather testified that he did not 

tell Whitaker that he could not be in the house, that he knew 

Whitaker still had clothes in the house, and that Whitaker did 

have permission to enter the house. 

 The Commonwealth argues, however, that even if Whitaker had 

permission to enter the house, that permission was limited in 

scope. Citing Jones v. Commonwealth, 3 Va. App. 295, 349 S.E.2d 

414 (1986), and Clark v. Commonwealth, 22 Va. App. 673, 472 

S.E.2d 663 (1996), aff'd en banc, 24 Va. App. 253, 481 S.E.2d 495 

(1997), the Commonwealth further argues Whitaker exceeded the 

scope of that permission and committed a constructive breaking by 

fraud when he took the items from the house. 

 In Jones, the defendant entered a department store and 

concealed himself in the store after closing. This Court noted 

the following: 

 Where a store owner invites the public to 

 enter his premises he consents for the 

 entrant to view his merchandise for the 

 limited purpose of purchase, or to otherwise 

 engage in a lawful activity thereon. It is 

 not the will of the owner that entrance be 

 made to defraud or steal from him. 

3 Va. App. at 300, 349 S.E.2d at 417. Relying on the statutory 

language of Code  18.2-90 and 18.2-91, that a person who 

"enters and conceals himself" with the intent to commit larceny 

is guilty of statutory burglary, this Court ruled that the 

defendant's presence on the premises after the close of business 

"constitutes a form of entry by fraud and deception when the 

original entry was made with intent to steal." Jones, 3 Va. App. 

at 300, 349 S.E.2d at 417 (emphasis added). 

 In Clark, the accused entered a store at nighttime during 

business hours, asked the counter attendant where the bathroom 

was located, went into the bathroom, returned to the counter, 

pulled out an object that appeared to be a gun and robbed the 

store. The Court ruled that "the statute's language, 'enter[] 

without breaking,' specifically excludes breaking as an element," 

and found that the entry was unlawful. 22 Va. App. at 676, 472 

S.E.2d at 664. 

 Jones involved an entry and concealment on the premises, and 
Clark involved an entry at nighttime. Neither case involved a 

breaking under Code  18.2-90. Thus, these cases are not 

dispositive of the issue presented in this appeal. See Johns v. 

Commonwealth, 10 Va. App. 283, 288, 392 S.E.2d 487, 490 (1990). 

 Whitaker's parents obviously did not authorize or invite 

Whitaker to enter their residence for the purpose of committing 

larceny. However, we have held that even where the entry is 

contrary to the will of the occupier of the premises, the 

requirement of Code  18.2-90 and 18.2-91 that a person "'breaks 

and enters' . . . is not satisfied by the mere showing that the 

accused entered the [house] with the intent to commit [larceny] 

contrary to the will of the occupier of the premises." Johns, 10 

Va. App. at 288-89, 392 S.E.2d at 490. The Commonwealth must 

also prove a breaking. 

 The evidence, viewed in the light most favorable to the 

Commonwealth, proves that Whitaker had his own key to the house 

and kept his clothing in the house. Neither his mother nor his 

stepfather asked him to return the key or told him that he could 

not enter the house. When Whitaker entered the house he used his 

key, and, therefore, "no fraud was necessary to accomplish his 

entry." Johns, 10 Va. App. at 289, 392 S.E.2d at 490. Thus, 

there could be no breaking, either actual or constructive. 

See Davis, 132 Va. at 523, 110 S.E. at 357. See also Clarke v. 

Commonwealth, 66 Va. (25 Gratt.) 908, 919-20 (1874) (there can be 

no burglary when "entry was by the voluntary act and consent of 

the owner or occupier of the house"). 

 Because the Commonwealth's evidence failed to prove beyond a 

reasonable doubt that a breaking occurred, the evidence was 

insufficient to support Whitaker's conviction under Code 

 18.2-91. Accordingly, we reverse Whitaker's burglary 

conviction and dismiss the indictment. 

 III. 

 Whitaker asks us to remand this case back to the circuit 

court so the trial judge can reconsider Whitaker's grand larceny 

sentence under the sentencing guidelines. We decline to do so. 

 Rule 1:1 provides in pertinent part as follows: 

 All final judgments, orders, and decrees, 

 irrespective of terms of court, shall remain 

 under the control of the trial court and 

 subject to be modified, vacated, or suspended 

 for twenty-one days after the date of entry, 

 and no longer. 

"The Rule is clear. After the expiration of 21 days from the 

entry of a judgment, the court rendering the judgment loses 

jurisdiction of the case, and, absent a perfected appeal, the 

judgment is final and conclusive." Rook v. Rook, 233 Va. 92, 95, 

353 S.E.2d 756, 758 (1987). Whitaker noted no objection to the 

larceny sentence when it was entered, did not make a conditional 

plea, and did not seek a protective appeal. We have no basis 

upon which to remand for resentencing. 

 

Reversed and dismissed.