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Erin L.T. Ranney, PLLC

Attorney At Law

 
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Criminal Law Spotlight - May 2016

Breaking and Entering

Breaking and Entering

As we enter vacation season, and the end of the school year, breaking and entering becomes something we hear a lot about.  Breaking and entering is frequently referred to as "Burglary".  There area  number of Virginia Code sections that address Breaking and Entering.  The sections have different requirements that need to be met to satisfy the specific statute, however there are some general rules of law that apply to all Breaking and Entering cases.  Here are the main Virginia Code Sections:

 

18.2-89. Burglary; how punished.

 

If any person break and enter the dwelling house of another in the nighttime with intent to commit a felony or any larceny therein, he shall be guilty of burglary, punishable as a Class 3 felony; provided, however, that 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 1950, 18.1-86; 1960, c. 358; 1975, cc. 14, 15.)

 

18.2-90. Entering dwelling house, etc., with intent to commit murder, rape, robbery or arson; penalty.

 

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 or an adjoining, occupied outhouse or in the nighttime enters without breaking or at any time breaks and enters or enters and conceals himself in any building permanently affixed to realty, or any ship, vessel or river craft or any railroad car, or any automobile, truck or trailer, if such automobile, truck or trailer is used as a dwelling or place of human habitation, with intent to commit murder, rape, robbery or arson in violation of 18.2-7718.2-79 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 1950, 18.1-88; 1960, c. 358; 1970, c. 381; 1975, cc. 14, 15; 1985, c. 110; 1992, c. 546; 1997, c. 832; 2004, c. 842.)

 

18.2-91. Entering dwelling house, etc., with intent to commit larceny, assault and battery or other felony.

 

If any person commits any of the acts mentioned in 18.2-90 with intent to commit larceny, or any felony other than murder, rape, robbery or arson in violation of 18.2-7718.2-79 or 18.2-80, or if any person commits any of the acts mentioned in 18.2-89 or 18.2-90 with intent to commit assault and battery, he shall be guilty of statutory burglary, punishable by confinement in a state correctional facility for not less than one or more than twenty years or, in the discretion of the jury or the court trying the case without a jury, be confined in jail for a period not exceeding twelve months or fined not more than $2,500, either or both. However, if the person was armed with a deadly weapon at the time of such entry, he shall be guilty of a Class 2 felony.

(Code 1950, 18.1-89; 1960, c. 358; 1962, c. 505; 1970, c. 381; 1975, cc. 14, 15, 602; 1991, c. 710; 1992, c. 486; 1996, c. 1040; 1997, c. 832.)

 

18.2-92. Breaking and entering dwelling house with intent to commit other misdemeanor.

 

If any person break and enter a dwelling house while said dwelling is occupied, either in the day or nighttime, with the intent to commit any misdemeanor except assault and battery or trespass, he shall be guilty of a Class 6 felony. However, if the person was armed with a deadly weapon at the time of such entry, he shall be guilty of a Class 2 felony.

(Code 1950, 18.1-88.1; 1968, c. 530; 1970, c. 381; 1975, cc. 14, 15; 1992, c. 486.)


18.2-121. Entering property of another for purpose of damaging it, etc.

 

It shall be unlawful for any person to enter the land, dwelling, outhouse or any other building of another for the purpose of damaging such property or any of the contents thereof or in any manner to interfere with the rights of the owner, user or the occupant thereof to use such property free from interference.

 

Any person violating the provisions of this section shall be guilty of a Class 1 misdemeanor. However, if a person intentionally selects the property entered because of the race, religious conviction, color or national origin of the owner, user or occupant of the property, the person shall be guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

(Code 1950, 18.1-183; 1960, c. 358; 1975, cc. 14, 15; 1994, c. 658; 1997, c. 833; 2004, c. 461.)

 

Breakdown:

- There are cases that define what constitutes a "dwelling house" and what does not.  Generally the rule of thumb is whether there is intent for human habitation and whether the people will return to the home. Giles v. Commonwealth 672 S.E.2d 879 (2009).

 

- Dwelling house means a place which human beings regularly use for sleeping.  Turner v. Commonwealth, 531 S.E.2d 619 (2000).

 

- A person may have more than one dwelling house, a person must inhabit that house for usual periods or on a periodic basis, and when the person is absent, they must intend to return.  Giles v. Commonwealth, 672 S.E.2d (2009).

 

- The intent to commit a crime within the home is an element that must be proved.  However, that intent can be inferred based on circumstances.  Witt v. Commonwealth, 422 S.E.2d 465 (1992).

 

- Specifically, the unauthorized presence of a person in a place at night may be sufficient.  Witt v. Commonwealth, 422 S.E.2d 465 (1992).

 

- Possession of recently stolen items from a place that has been burglarized combined with other inculpatory circumstances may be sufficient to sustain a conviction for the burglary.  Schaum v. Commonwealth, 211 S.E.2d 73 (1975).

 

- A "break" is any removal or displacement of anything attached to a house as a means of securing the home, no matter how slight the force used to move or displace.  Finch v. Commonwealth, 55 Va. (14 Gratt.) 643 (1858).

 

- Breaking may be actual or constructive.  Clarke v. Commonwealth, 66 Va. (25 Gratt.) 908 (1875).

 

- At nighttime no breaking is required.

 

- "Entering" means when any body part enters into a dwelling.  Franklin v. Commonwealth, 508 S.E.2d 362 (1998).

 

- The entry also must be against the will of the occupier of the home.  Opie v. Commonwealth, No. 2173-99-1, 2000 Va. App. LEXIS 633 (Ct. of Appeals Aug. 29, 2000).   In other words, it generally has to be the home "of another".  That is open to broad interpretation and can become complicated during a legal separation or divorce.

 

- What constitutes a deadly weapon is to be determined by the fact finder.  Pritchett v. Commonwealth, 219 Va. 927 (1979).

 

- There is also a Code section that prohibits the carrying of "Burglarious Tools" - ie those implements that could be used in performing a burglary.  Va. Code 18.2-94.

 

- One of the keys to many breaking and entering cases is the intent.  What evidence the Commonwealth has of the intent behind a breaking and entering can determine the success or failure of a case.

 

- A person can be charged with attempted breaking and entering as well as conspiracy to commit breaking and entering as well.


 

Remember, breaking and entering is a serious type of case with a variety of dispostions.   These are just a few highlights of the burglary law in Virginia.  If you are charged with any criminal offense call me today for a free consultation.

Breaking and Entering Facts


Type:

All but one type of Breaking and Entering are felony offenses.  18.2-121 is a misdemeanor.

 

Maximum punishment:

Misdemeanor - maximum of 12 months in jail, $2500 fine.

 

Felony - Range of punishments depending on what class of felony II-VI.  Class VI felonies, the lowest class of felonies, carry a maximum penalty of up to 5 years in prison and up to $2500 fine.  Class II felonies can carry a maximum punishment of life imprisonment.

 

Interesting Facts:  A person can be found guilty of entering a home simply by placing any part of the body within the space of the home, so long as the requisite intent can be proven.  This is called "breaking the plane" and entering.