Burglary & Statutory Burglary
Va. Code §§ 18.2-89 through 18.2-94 — intent picks the section, the weapon picks the class
1. The Ladder — Intent Picks the Section
Burglary grading
| Section | Intent at entry | Base punishment | If armed with a deadly weapon |
|---|---|---|---|
| § 18.2-89 — common law burglary | A felony or any larceny | Class 3 felony | Class 2 felony |
| § 18.2-90 — statutory burglary | Murder, rape, robbery or arson (§ 18.2-77, § 18.2-79, § 18.2-80) | Class 3 felony | Class 2 felony |
| § 18.2-91 — statutory burglary | Larceny, any felony OTHER than murder/rape/robbery/arson, or assault and battery | 1 to 20 years — OR, in the discretion of the jury or the court, jail up to 12 months and/or a fine up to $2,500 | Class 2 felony |
| § 18.2-92 — B&E dwelling | Any misdemeanor EXCEPT assault and battery or trespass | Class 6 felony | Class 2 felony |
Note that § 18.2-91 is UNCLASSIFIED — it states its own range and includes a misdemeanor-level alternative. The other three use classes from § 18.2-10.
2. The Acts — Breaking, Entering, Concealing
§ 18.2-89 — the common law offence
"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."
- Requires BOTH a breaking and an entering
- Requires the NIGHTTIME
- Requires a dwelling house OF ANOTHER
All three are elements. Fail any one and the charge moves to § 18.2-90 or § 18.2-91, which is why those sections exist.
§ 18.2-90 — the statutory acts
The section reaches, in condensed form: in the NIGHTTIME entering WITHOUT breaking; in the DAYTIME breaking and entering; or entering and CONCEALING oneself — in a dwelling house or an adjoining occupied outhouse. And, for a building permanently affixed to realty, a ship, vessel or river craft, a railroad car, or an automobile, truck or trailer USED AS A DWELLING or place of human habitation: in the nighttime entering without breaking, or AT ANY TIME breaking and entering or entering and concealing oneself.
§ 18.2-91 — the same acts, different intent
"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 ..., 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."
So § 18.2-91 borrows the ACTS from the two sections above it and supplies a different mental state. Note that assault and battery intent can attach to the § 18.2-89 acts as well.
§ 18.2-92 — occupied dwelling, misdemeanor intent
"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."
- Occupancy at the time is an element here, unlike the sections above
- Day or night — the time of day does not matter
- Assault and battery is EXCLUDED because it belongs to § 18.2-91
- Trespass is excluded outright
3. What Counts as a BREAKING — and what is a DWELLING HOUSE
Breaking
Doan v. Commonwealth 15 Va. App. 87, 99, 422 S.E.2d 398, 404 (1992), Court of Appeals of Virginia, 1992
binding
"[A] breaking . . . may be either actual or constructive. [However,] [a]n actual breaking involves the application of physical force, however slight, to effectuate the entry."
"However slight" is the operative phrase. NOTE: this sheet states the ACTUAL-breaking standard only — no primary source defining CONSTRUCTIVE breaking was located, so confirm that separately if the entry was obtained by threat, fraud or trick.
Johnson v. Commonwealth 221 Va. 872, 876, 275 S.E.2d 592, 594-95 (1981), Supreme Court of Virginia, 1981
binding
"'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.'" (Quoting Davis v. Commonwealth, 132 Va. 521, 523, 110 S.E. 356, 357 (1922).)
The answer to "the door was unlocked". Pushing a closed door open is a breaking. NOT to be confused with the 1994 Court of Appeals Johnson at 18 Va. App. 441, cited below on dwelling house.
Dwelling house
Rash v. Commonwealth 9 Va. App. 22, 26, 383 S.E.2d 749, 751 (1989), Court of Appeals of Virginia, 1989
binding
"[I]n enacting Code § 18.2-89, the legislature intended to preserve the crime of common law burglary as an offense against habitation." Accordingly "the term 'dwelling house' [as used] in Code § 18.2-89 means a place which human beings regularly use for sleeping", and a "house remains a dwelling house so long as the occupant intends to return."
Covers the temporarily empty house — a vacant home is still a dwelling if the occupant means to come back. Applied under § 18.2-92 in Johnson v. Commonwealth, 18 Va. App. 441, 446-47, 444 S.E.2d 559, 562 (1994).
Hitt v. Commonwealth Record No. 1276-03-4 (Va. Ct. App. July 13, 2004), Court of Appeals of Virginia (published), 2004
binding
A question of first impression. The defendant was lawfully in the home and forced the lock on a housemate's bedroom. Conviction REVERSED: "the place of habitation on the facts presented here was Burner's home as a whole, not his bedroom within his home." The definition "does not contemplate individual rooms or compartments within such a residence, that are not dwelling houses in and of themselves."
⚠️ CHARGE-KILLER. Distinguish the rented room let as a separate residence, which the opinion expressly leaves outside its holding. Cited by record number — its reporter citation could not be confirmed in a primary source.
Griffin v. Commonwealth 13 Va. App. 409, 412, 412 S.E.2d 709, 711 (1991), Court of Appeals of Virginia, 1991
binding
A building permanently affixed to realty "necessarily includes any such structure used as a dwelling." "Thus, whenever there is a breaking and entering of a dwelling with a larcenous intent, the timing of the offense is not an essential element [of statutory burglary]." (Citing Graybeal v. Commonwealth, 228 Va. 736, 740, 324 S.E.2d 698, 700 (1985).)
Time of day drops out once you are in § 18.2-90/91 territory — it is an element only of § 18.2-89.
4. Proving It — the recent-possession route
Most burglaries are proved without a witness to the entry. The Supreme Court has set out a three-part prima facie case built on possession of the stolen goods, and it is the ordinary route to conviction.
The inference
Finney v. Commonwealth 277 Va. 83, 90 (2009), Supreme Court of Virginia, 2009
binding
"The Commonwealth can establish a prima facie case that a defendant broke and entered by (1) proving that goods have been stolen from a house into which someone has broken and entered; (2) justifying the inference that both offenses were committed at the same time, by the same person, as a part of a criminal enterprise; and (3) proving that these goods were found soon thereafter in the possession of the defendant." (Citing Guynn v. Commonwealth, 220 Va. 478, 480 (1979).)
THE WORKHORSE. Build the file to the three elements explicitly — proof of the break-in, the linkage, and recency of possession.
Fout v. Commonwealth 199 Va. 184, 193-94 (1957), Supreme Court of Virginia, 1957
binding
The larceny inference from recent possession of stolen goods applies to burglary as well.
Cite alongside Finney where the defence argues the inference is confined to larceny.
Winston v. Commonwealth 26 Va. App. 746, 757 (1998), Court of Appeals of Virginia, 1998
binding
The trier of fact may infer the defendant stole the property where he is found in "exclusive possession of [the] recently stolen property" and cannot adequately explain how he obtained it.
Two limbs: exclusivity and the absence of an adequate explanation. Anticipate an innocent-acquisition account and close it off in interview.
6. Defence Attacks & Responses
| Defense attack | Prosecution response |
|---|---|
| There was no breaking — the door was open. | Only § 18.2-89 and § 18.2-92 require a breaking. § 18.2-90 reaches entry WITHOUT breaking in the nighttime, and entering and concealing at any time for the locations it lists. |
| It happened in daylight, so it isn't burglary. | Nighttime is an element only of § 18.2-89. § 18.2-90 reaches a daytime breaking and entering, and § 18.2-92 applies day or night. |
| No proof of what he intended when he went in. | It decides WHICH section applies rather than whether any does, and it is routinely proved circumstantially. Where goods were taken, run the Finney prima facie case: proof of the break-in, the inference that both offences were one enterprise, and the goods found soon after in his possession. |
| He was allowed to be in the house — he just opened a bedroom door. | Then it is probably NOT burglary. Hitt reversed exactly that conviction: a room within a dwelling is not a dwelling house, and the place of habitation is the home as a whole. Consider the substantive offence instead. The answer differs if the room was let as a separate residence. |
| The house was empty — nobody lived there. | A house "remains a dwelling house so long as the occupant intends to return" (Rash, 9 Va. App. at 26). Establish the occupant's intention to return, not merely presence on the day. |
| It was a car, not a dwelling. | § 18.2-90 reaches an automobile, truck or trailer only if it is USED AS A DWELLING or place of human habitation. Establish habitation, or the section does not apply. |
| He had a knife in his pocket the whole time — that shouldn't make it a Class 2. | The statutes say "armed with a deadly weapon at the time of such entry", without requiring use or display. Whether the item is a deadly weapon is a case-law question this sheet does not answer. |
| The tools are ordinary hand tools. | A good point about the PRESUMPTION and a bad one about the OFFENCE. The prima facie inference reaches only articles innately burglarious (Burnette), but ordinary tools are still chargeable — the Commonwealth simply proves intent without the presumption (Moss). |
7. Before You Charge
- Intent AT ENTRY identified — it picks the section
- Breaking, entering, or entering-and-concealing established as the section requires
- Time of day established if § 18.2-89 is charged
- Location within the § 18.2-90 list, read in full
- For a vehicle: used as a dwelling or place of human habitation
- For § 18.2-92: the dwelling was OCCUPIED at the time
- Armed with a deadly weapon AT THE TIME OF ENTRY — sequence pinned down This is a Class 2 felony under all four sections; a weapon acquired inside is a different case.
- If § 18.2-91: the unclassified punishment range, including the misdemeanor alternative
- NOT an interior room of a dwelling the defendant was lawfully in Hitt — a room within a dwelling is not a dwelling house.
- For an empty house: the occupant's INTENTION TO RETURN established
- If proved by recent possession: all three Finney limbs in the file
- Companion § 18.2-94 count considered where tools were recovered If the tools are not innately burglarious, plan to prove intent WITHOUT the presumption (Moss).
8. Annotated Authority
Annotated authority — research layer, not printed on the PDF
Davis v. Commonwealth 132 Va. 521, 523, 110 S.E. 356, 357, Va., 1922
The definition still quoted a century later. "Breaking, as an element of the crime of burglary, may be either ACTUAL OR CONSTRUCTIVE. There is a 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." But a breaking of either kind "MUST HAVE RESULTED IN AN ENTRANCE CONTRARY TO THE WILL OF THE OCCUPIER of the house."
Practical value: Two things in one passage. The force threshold is almost nothing — pushing a door answers "it was already open a crack". But the last sentence is the defence's, and it is what Finney turned on: force alone is not a breaking unless the entry was against the occupier's will.
Johnson v. Commonwealth 221 Va. 872, 876, 275 S.E.2d 592, 594-95, Va., 1981
Adopts and applies Davis: the principles governing breaking "are WELL SETTLED", and slight physical force — pushing open a door, turning a key, lifting a latch — suffices.
Practical value: The modern Supreme Court authority to cite rather than reaching back to Davis directly, though Davis carries the fuller statement. ⚠️ NAME COLLISION: not the Johnson, 209 Va. 291 (1968), on robbery, nor Johnson, 5 Va. App. 529 (1988), on sexual assault.
Jones v. Commonwealth 3 Va. App. 295, 299, 349 S.E.2d 414, Va. Ct. App., 1986
"Where entry is gained by THREATS, FRAUD OR CONSPIRACY, a CONSTRUCTIVE BREAKING is deemed to have occurred."
Practical value: The route where there was no force at all — the ruse entry, the fake utility worker, the accomplice who opens the door from inside. Charge constructive breaking rather than straining the actual limb.
Bright v. Commonwealth 4 Va. App. 248, 251-52, 356 S.E.2d 443, 444-45, Va. Ct. App., 1987
Does DOUBLE DUTY on this sheet. On the acts: "an ACTUAL BREAKING involves the application of PHYSICAL FORCE, HOWEVER SLIGHT, to effectuate the entry." On the proof: "[o]nce the [larceny] is established, the UNEXPLAINED POSSESSION OF RECENTLY STOLEN GOODS PERMITS AN INFERENCE OF LARCENY by the possessor."
Practical value: One citation that covers both halves of a burglary case, which is why it appears in both Doan and Winston.
Doan v. Commonwealth 15 Va. App. 87, 99, 422 S.E.2d 398, 404, Va. Ct. App., 1992
Statutory burglary AFFIRMED. Collects the framework: a breaking "may be either ACTUAL OR CONSTRUCTIVE", actual requiring physical force however slight, constructive arising where entry is gained by threats, fraud or conspiracy.
Practical value: The one case to cite if you cite only one on the acts — it states both limbs together and is a Court of Appeals affirmance.
Rash v. Commonwealth 9 Va. App. 22, 24-26, 383 S.E.2d 749, 751, Va. Ct. App., 1989
A LIMIT AGAINST THE COMMONWEALTH, and an issue of FIRST IMPRESSION. Conviction REVERSED. An UNOCCUPIED BUT FULLY FURNISHED house is NOT a "DWELLING HOUSE" under § 18.2-89 where the LAST OCCUPANT HAS LEFT WITH NO INTENT TO RETURN and the owners plan to sell it. Furnishing can evidence an intent to return, but here that inference was negated by the owners' own testimony. The legislature "intended to preserve the crime of common law burglary as an OFFENSE AGAINST HABITATION."
Practical value: Ask who was living there and whether they meant to come back BEFORE charging § 18.2-89. A vacant house listed for sale is not a dwelling, however furnished — the charge is § 18.2-91, not § 18.2-89, and the grade changes with it.
Guynn v. Commonwealth 220 Va. 478, 480, 259 S.E.2d 822, 823-24, Va., 1979
The THREE-PART prima facie route: the Commonwealth establishes a prima facie case that a defendant broke and entered by (1) proving GOODS HAVE BEEN STOLEN from a house into which someone has broken and entered; (2) JUSTIFYING THE INFERENCE THAT BOTH OFFENCES WERE COMMITTED AT THE SAME TIME, BY THE SAME PERSON, as part of a criminal enterprise; and (3) proving those goods were found SOON THEREAFTER in the defendant's possession.
Practical value: Limb (2) is the one that fails, and Finney is the proof. Possession of the stolen goods plus an obvious break-in is NOT enough on its own — something must tie the two events to one occasion and one actor.
Finney v. Commonwealth 277 Va. 83, 88-90, 671 S.E.2d 169, Va., 2009
THE MODERN LIMIT — conviction VACATED and the indictment DISMISSED. Finney possessed tools stolen from a shed, but the shed had last been seen intact seven or eight days earlier, so the circumstantial evidence "does not justify the inference that the BREAKING of the shed door, the ENTERING of the shed, and the LARCENY of the tools were committed AT THE SAME TIME AND BY THE SAME PERSON." Possession of the goods "WITHOUT MORE, DOES NOT PROVE that Finney obtained the tools by breaking into the shed", and while the evidence "creates a STRONG SUSPICION of Finney's guilt", it did not prove he used any physical force to enter.
Practical value: Read before charging burglary off recent possession alone. The longer the gap between the last time the premises were seen secure and the discovery of the goods, the weaker limb (2) of Guynn becomes — and a strong suspicion is expressly not enough. Nail down WHEN the premises were last intact.
Castle v. Commonwealth 196 Va. 222, 226-27, 83 S.E.2d 360, 363, Va., 1954
The larceny inference from unexplained possession of recently stolen goods, in its older Supreme Court statement.
Practical value: Cite with Bright where the defence argues the inference is a modern Court of Appeals invention; it is not.
Best v. Commonwealth 222 Va. 387, 389, 282 S.E.2d 16, 17, Va., 1981
For the larceny inference to arise at all, the Commonwealth must establish that the accused was in EXCLUSIVE POSSESSION of the recently stolen property.
Practical value: The element the defence attacks in a car or a shared house. Joint access defeats exclusivity, so develop who else could reach the goods before relying on the inference.
Winston v. Commonwealth 26 Va. App. 746, 757, 497 S.E.2d 141, Va. Ct. App., 1998
AFFIRMED. Applies the inference where no evidence directly proved the theft: the defendant was in EXCLUSIVE POSSESSION of a stolen car SHORTLY AFTER it was taken, which sufficed to prove he was the one who stole it.
Practical value: The worked example on the State's side, and the counterweight to Finney. The difference between them is TIME and the tightness of the link — Winston's possession was "shortly after"; Finney's gap was seven or eight days.
Pritchett v. Commonwealth 219 Va. 927, 928-29, 252 S.E.2d 352, 353, Va., 1979
Decided under § 18.2-91. Adopts the general Virginia definition of a DEADLY WEAPON — an instrument "likely to, or which will, cause or produce death or great bodily harm WHEN USED IN THE MANNER CONTEMPLATED BY ITS DESIGN AND CONSTRUCTION" — and holds that unless a weapon is deadly PER SE, whether it is deadly "DEPENDS MORE ON THE MANNER IN WHICH IT HAS BEEN USED THAN ON ITS INTRINSIC CHARACTER", a question for the fact finder. A wooden club qualified.
Practical value: This is what moves § 18.2-89 from a Class 3 to a CLASS 2 felony under the armed-with-a-deadly-weapon proviso, and the same question arises under § 18.2-90 and § 18.2-91. Because it turns on manner of use, the club, the screwdriver and the crowbar are all jury questions rather than matters of law.