                      COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Elder and
          Senior Judge Overton
Argued at Alexandria, Virginia


GEORGE PEREZ LEVENBERRY
                                          MEMORANDUM OPINION * BY
v.   Record No. 0979-00-4        CHIEF JUDGE JOHANNA L. FITZPATRICK
                                               APRIL 3, 2001
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                      Paul F. Sheridan, Judge

           Robert W. Gookin for appellant.

           Susan M. Harris, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     George Perez Levenberry (appellant) was convicted in a jury

trial of statutory burglary in violation of Code § 18.2-91. 1   The

sole issue raised is whether the evidence was sufficient to

establish the requisite "breaking" for statutory burglary.

Finding the evidence is insufficient, we dismiss his conviction.

                                I.

     Under familiar principles of appellate review, we examine the

evidence in the light most favorable to the Commonwealth, the



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       Appellant was also convicted of grand larceny in violation
of Code § 18.2-95. That conviction is not at issue in this
appeal.
prevailing party below, granting to that evidence all reasonable

inferences fairly deducible therefrom.    See Juares v.

Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).

     The testimony of Mr. Hodge, the homeowner, regarding the

condition of the door is as follows:

          Q.   So you were living at 3716 Lorcum
               Lane on June 11th, 1999?
          A.   Yes, sir.
          Q.   Did you drive to work that day?
          A.   Yes, sir.
          Q.   And did you – what time did you
               return home?
          A.   I'm not sure. I am thinking it was
               right after my son got home, which is
               a little bit after 3:00.
          Q.   What are the usual hours that your
               house is vacant during the day on a
               regular school day?
          A.   It's usually vacant after 8:00. I
               believe my oldest son goes to school
               8:00 to 8:30, 9:00. It varies when
               he has to be there. And then my youngest
               son gets back at 3:00.
          Q.   And when you returned home, what did
               you observe?
          A.   An open door in the kitchen. There is
               a glass door back there, and it was
               standing open almost all the way or half
               way, somewhere around there.
          Q.   Can I approach the witness?

          The Court:   You may.

          Q.   Are those pictures bearing accurate
               depictions of your sliding glass door?
          A.   Yes.
          Q.   And it was actually open when you got home?
          A.   Yes.

     The Commonwealth concedes that no evidence established that

the door was "locked or shut."     No witnesses for the



                                  - 2 -
Commonwealth testified whether the door was closed at the time

the last person left the home.

                                  II.

     Appellant contends no evidence established the requisite

"breaking" required by Code §§ 18.2-90 and 18.2-91. 2    We agree.

            "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. . . ."

Robertson v. Commonwealth, 31 Va. App. 814, 821, 525 S.E.2d 640,

644 (2000) (quoting Davis v. Commonwealth, 132 Va. 521, 523, 110

S.E. 356, 357 (1922)).    The evidence established only that the

door was open when the homeowner returned.     No evidence proved

that the door was closed when Mr. Hodge left for work or when

his children later left for school.      Absent evidence of any

force, even the "slight physical force" necessary to establish a

     2
         Code § 18.2-90 provides, in pertinent part, that

            [i]f any person . . . in the daytime breaks
            and enters . . . in a dwelling house . . .
            with intent to commit . . . [enumerated
            felonies] . . . he shall be deemed guilty of
            statutory burglary . . . .

(Emphasis added).

     Code § 18.2-91 provides, in pertinent part, 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 . . . .

                                 - 3 -
breaking, we must reverse and dismiss the statutory burglary

conviction. 3

                                        Reversed and dismissed.




     3
       The Commonwealth relies on Bright v. Commonwealth, 4 Va.
App. 248, 356 S.E.2d 443 (1987), for the proposition that recent
possession of stolen goods raises an inference that the
possessor also committed the burglary. However, this does not
remove from the Commonwealth the need to prove the underlying
elements of the burglary.

                              - 4 -
