Opinion
Record No. 1548-91-2
September 7, 1993
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY ROBERT G. O'HARA, JR., JUDGE.
David R. Denton (Townsend Bloom, on brief), for appellant.
John H. McLees, Jr., Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Charles Lee Broady was convicted of breaking and entering in the daytime with the intent to commit robbery pursuant to Code § 18.2-90. On appeal, Broady contends that the Commonwealth failed to prove beyond a reasonable doubt the essential element of "breaking" to support appellant's conviction for statutory burglary in the daytime. Finding insufficient evidence of a "breaking," we reverse.
During Broady's May 9, 1991 jury trial, Josephine Lee testified that she and her husband arrived in Emporia, Virginia at 3:00 p.m. on March 31, 1991, at which time they rented a room at a Holiday Inn. After opening the outside door from the parking lot to the first-floor room, Mrs. Lee noticed a door on the other side of the room with its chain lock unlatched; she opened it and discovered that it opened into an inner corridor to the motel. As she turned to tell her husband where the inside door led, she observed Broady and another man in her room. Mrs. Lee explained that she saw the other man "closing the door behind him." As to the status of the doors in the room, the following testimony was elicited from Mrs. Lee:
Q: Did you ever close the door to that room?
A (MRS. LEE): I think not. I can't remember for sure, but I just think I may have had my hand on the door and turned around to speak to my husband to tell him what this was, it just went into the corridor.
Q: So you both walked in the room, came in, they came in, is it fair to say?
A: I would say the door is not closed tight.
Q: Inaudible.
A: I don't know.
Mrs. Lee then explained how Broady's accomplice grabbed her purse and ran out of the room. At the conclusion of the Commonwealth's case, appellant moved to strike the evidence as to the burglary charge, asserting that no evidence established that the door was closed when Broady walked in; therefore, the Commonwealth failed to prove the necessary breaking to support a conviction.
Broady presented no evidence. He renewed his motion to strike and his motion was again overruled. The jury found Broady guilty of statutory burglary, fixing his punishment at five years.
"When considering the sufficiency of the evidence on appeal of a criminal conviction, we must view all the evidence in the light most favorable to the Commonwealth and accord to the evidence all reasonable inferences fairly deducible therefrom. The jury's verdict will not be disturbed on appeal unless it is plainly wrong or without evidence to support it." Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988) (citations omitted).
If any person . . . in the daytime breaks and enters or enters and conceals himself in a dwelling house . . . with intent to commit murder, rape or robbery, he shall be deemed guilty of statutory burglary, which offense shall be a Class 3 felony.
Code § 18.2-90 (emphasis added).
"Breaking, as an element of the crime of burglary, may be either actual or constructive. . . . 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."Bright v. Commonwealth, 4 Va. App. 248, 252, 356 S.E.2d 443, 444 (1987) (quoting Johnson v. Commonwealth, 221 Va. 872, 876, 275 S.E.2d 592, 594-95 (1981)). "Where entry is gained by threats, fraud or conspiracy, a constructive breaking is deemed to have occurred." Jones v. Commonwealth, 3 Va. App. 295, 299, 349 S.E.2d 414, 416-17 (1986).
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 that particular offense." Martin v. Commonwealth, 13 Va. App. 524, 529, 414 S.E.2d 401, 403 (1992) (en banc) (citing Jackson v. Virginia, 443 U.S. 307, 315-16 (1979)).
The record contains insufficient evidence to prove beyond a reasonable doubt that an actual or constructive breaking occurred. Mrs. Lee testified that, as she turned to tell her husband where the inside door led, appellant and another man were in her room. She explained that she saw the other man "closing the door behind him." Mrs. Lee's answer stating that the door was not closed tight appears responsive to her preceding answer referring to the door opening onto the corridor. As such, nothing in the record clearly established whether the outer door opening onto the parking lot was open or closed or partially open when the suspects entered. No evidence was presented that the door automatically closed or that the victims did not leave it open wide enough for appellant to enter without touching it. Moreover, no evidence proved that the intruders gained entry by threats of violence or fraud.
In the light most favorable to the Commonwealth, there is insufficient evidence of either a constructive or actual breaking to support a conviction for daytime statutory burglary. Accordingly, Broady's conviction on the burglary charge is
Reversed and Dismissed.