                                           COURT OF APPEALS OF VIRGINIA


            Present: Judges Decker, Russell and Senior Judge Felton
PUBLISHED


            Argued at Norfolk, Virginia


            CHARLES JAYSON BECK, S/K/A
             CHARLES JASON BECK
                                                                                  OPINION BY
            v.      Record No. 0997-15-1                                   JUDGE WESLEY G. RUSSELL, JR.
                                                                                  APRIL 26, 2016
            COMMONWEALTH OF VIRGINIA


                              FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                                           Wilford Taylor, Jr., Judge

                            Ben Pavek, Assistant Public Defender, for appellant.

                            Aaron J. Campbell, Assistant Attorney General (Mark R. Herring,
                            Attorney General, on brief), for appellee.


                    Appellant, Charles Jayson Beck, was convicted in a bench trial of breaking and entering in

            violation of Code § 18.2-91, grand larceny in violation of Code § 18.2-95, and obtaining money by

            false pretenses in violation of Code § 18.2-178.1 On appeal, appellant first argues the evidence is

            insufficient to prove a burglary because the evidence showed appellant broke within a dwelling

            rather than broke into a dwelling. In the alternative, appellant argues the trial court erred in

            convicting him of burglary because the evidence failed to prove beyond a reasonable doubt whether

            the offense occurred during the daytime or during the nighttime. For the reasons that follow, we

            affirm appellant’s burglary conviction.




                    1
                       Appellant did not appeal his conviction for obtaining money by false pretenses. He did
            appeal his conviction for grand larceny; however, this Court did not grant his petition for appeal
            as it relates to that conviction.
                                         BACKGROUND

       “Under well-settled principles of appellate review, we consider the evidence presented at

trial in the light most favorable to the Commonwealth, the prevailing party below.” Smallwood

v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v.

Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). This principle requires us to

“discard the evidence of the accused in conflict with that of the Commonwealth, and regard as

true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn

therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis,

citation, and internal quotation marks omitted).

       Colleen Shook (“Shook”) lived with her son in a single family home in Hampton.

Previously, to provide a place for her mother to live, Shook converted three bedrooms within the

house into what she described as a separate apartment, comprised of its own living quarters,

including a kitchen containing a refrigerator, stove, and dishwasher.

       Although the apartment was initially intended for use by Shook’s mother, Shook made it

available for rent once her mother no longer used the apartment. Appellant and his mother were

tenants in the apartment in September of 2013.

       The apartment has its own entrance and is connected to the Shooks’ living quarters by a

utility room that houses laundry facilities. The utility room has three doors—one leading to the

apartment, one to the Shooks’ living quarters, and the third to the garage. The utility room is the

sole passageway between the apartment and the Shooks’ living quarters.

       Shook testified the appellant never had permission to enter her side of the home, although

there were times when he was there by invitation. The door from the Shooks’ living quarters to

the laundry room was always closed. It is undisputed that appellant had permission to use the

utility room and that, in at least some circumstances, he had permission to access the garage.

                                                -2-
        On September 20, 2013, Shook discovered that two guitars and thirty pieces of jewelry

were missing from the Shooks’ living quarters. On September 23, 2013, appellant pawned one

of the guitars at a local pawn shop. At trial, appellant admitted to pawning the guitar, but

claimed that he had permission to do so.

        At the close of the Commonwealth’s evidence, appellant made a motion to strike. In

denying the motion, the trial court, recognizing the garage and utility room as common areas, stated

that “the evidence that is presented . . . established that Mrs. Shook had separated or created a

separate place by the renovation project. . . . [H]er mother had a separate apartment . . . .” At the

close of all the evidence and arguments of counsel, the court ruled that appellant’s apartment was

“separate and distinct from where the Shooks were living . . . ,” and, accordingly, found appellant

guilty of burglary.

        This appeal follows.

                                             ANALYSIS

        “[A]t common law, [burglary was] primarily an offense against the security of the

habitation, and that is still the general conception of it.” Compton v. Commonwealth, 190 Va.

48, 55, 55 S.E.2d 446, 449 (1949). Although the burglary statutes contain varied elements, their

unifying purpose is

                based primarily upon a recognition of the dangers to personal
                safety created by the usual burglary situation—the danger that the
                intruder will harm the occupants in attempting to perpetrate the
                intended crime or to escape and the danger that the occupants will
                in anger or panic react violently to the invasion, thereby inviting
                more violence.

Rash v. Commonwealth, 9 Va. App. 22, 25, 383 S.E.2d 749, 751 (1989) (quotation marks and

citation omitted).

        Appellant was convicted of burglary in violation of Code § 18.2-91. In pertinent part, the

statute provides that “[i]f any person commits any of the acts mentioned in § 18.2-90 with intent to
                                                  -3-
commit larceny . . . he shall be guilty of statutory burglary.” Code § 18.2-90 includes the acts of

either entering a dwelling house in the nighttime or breaking and entering into a dwelling house in

the daytime. See also Grimes v. Commonwealth, 288 Va. 314, 317, 764 S.E.2d 262, 264 (2014)

(“Code § 18.2-90 includes the act of breaking and entering into a dwelling house in the

daytime.”).

       Appellant argues that the evidence was insufficient to establish the elements of statutory

burglary in violation of Code § 18.2-91. First, he argues that, at most, the evidence showed that any

breaking occurred within a single residence, and thus, the evidence did not establish the necessary

entry into a dwelling.2 Second, he argues that the evidence did not establish that he either entered a

dwelling during the nighttime or that he broke and entered into a dwelling in the daytime.

       Because appellant is challenging the sufficiency of the evidence, we, as noted above,

review the evidence in the light most favorable to the Commonwealth, the prevailing party

below, and grant it all reasonable inferences from the evidence. Parks, 221 Va. at 498, 270

S.E.2d at 759. We “will reverse a judgment of the circuit court only upon a showing that it is

plainly wrong or without evidence to support it.” Singleton v. Commonwealth, 278 Va. 542,

548, 685 S.E.2d 668, 671 (2009) (citation omitted); see also Code § 8.01-680.

       I. The evidence was sufficient to allow the trial court to conclude that the Shooks’ living
          quarters and appellant’s apartment were separate dwellings that share common areas

       Relying heavily on our decisions in Hitt v. Commonwealth, 43 Va. App. 473, 598 S.E.2d

783 (2004), and Lacey v. Commonwealth, 54 Va. App. 32, 675 S.E.2d 846 (2009), appellant argues

that the Shooks’ living quarters, the utility room, the attached garage, and appellant’s apartment are




       2
         Appellant consistently has maintained that he neither broke nor entered the Shooks’
living quarters and that he did not commit larceny therein; however, he recognizes that, by
convicting him of the larceny, the trial court necessarily found that he did enter the Shooks’
living quarters.
                                                 -4-
all parts of the same dwelling, and therefore, appellant cannot be convicted of burglary. He reasons

that instead of breaking into a dwelling, the evidence, at most, shows he broke within a dwelling.

       Appellant correctly notes that, in Hitt, we held that the burglary statutes required breaking

and/or entering into a dwelling as opposed to within a dwelling. 43 Va. App. at 483, 598 S.E.2d at

788. Specifically, we adopted Hitt’s argument that he could not have committed a statutory

burglary of a locked bedroom in a house where he was otherwise authorized to be because the

locked bedroom and the remainder of the house were all part of one “dwelling.” Id. at 479, 598

S.E.2d at 786.

       Although appellant correctly has stated its general rule, Hitt does not provide the rule of

decision in the instant case. Rather, it simply frames the question: Did the evidence necessarily

establish that the Shooks’ living quarters were part of the same “dwelling” as appellant’s

apartment or other areas of the structure where he was authorized to be?

       Appellant argues that our decision in Lacey compels that this question be answered in the

affirmative. In Lacey, we concluded that the attached garage was part of the same dwelling as

the rooms where the larceny had occurred. Specifically, referencing the particular facts in the

case, we concluded that

                 the attached garage was part of the dwelling house for purposes of
                 the burglary statute. Photos of the house introduced at trial plainly
                 show the garage is an integrated part of the whole house. The
                 garage shares a roof and wall with the other portions of the house.
                 The garage also connects interiorly with other portions of the
                 house. Lacey took advantage of this to enter the open garage, pass
                 into the utility room, steal money from [the victim’s] bedroom, and
                 then exit the garage again. Furthermore, [the victim] uses the
                 garage for ordinary household functions. He testified he stored the
                 tree pruner in the garage and that he was preparing to sharpen it in
                 the garage when he first noticed Lacey. Under such circumstances,
                 the attached garage represented another room of the dwelling.

54 Va. App. at 43, 675 S.E.2d at 852 (footnote omitted); see also Grimes, 288 Va. at 318-19, 764

S.E.2d at 265 (holding that because the crawlspace at issue was “structurally part of the house,”
                                                 -5-
it fell “within the plain meaning of the term ‘dwelling house’” for the purposes of statutory

burglary).3

       Appellant correctly points out that the garage (and by extension, the utility room) in this

case shares many characteristics with the garage in Lacey. In both cases, the garages were under

a single roof, shared walls with the remainder of the structure, were utilized by the residents for

multiple purposes, were connected by doors that could and were used for ingress and egress, and,

as originally constructed, functioned as part of a single-family home.

       While the similarities between the garages are many, there is a significant difference.

Although, as originally constructed, both garages served single-family homes that were

unquestionably part of an undivided whole, the garage in this case no longer does. The law has

long recognized that joint access to common areas in a multi-unit apartment complex or rooming

house does not render it impossible for a resident of that complex or rooming house to burglarize

other units within the complex or rooming house. See generally Clarke v. Commonwealth, 66

Va. (25 Gratt.) 908, 919 (1874) (recognizing that, although a person cannot burglarize his own

room/residence in a multi-person rooming house, he may commit a burglary as to rooms rented

by others). As a modern commentator has noted,

               [i]f several people occupy the same dwelling, none may commit a
               burglary thereto as it is not the property of another. However, if a
               portion of the structure has been set aside for one resident, as in
               letting an apartment, any of the others (including the owner) could
               commit a burglary into that portion of the dwelling.




       3
         Whether a garage, crawlspace or other area constitutes part of a dwelling is, by
necessity, a fact-driven inquiry. The conclusions of the Virginia Supreme Court in Grimes and
this Court in Lacey were expressly tied to the particular facts and circumstances of those cases.
See Grimes, 288 Va. at 319, 764 S.E.2d at 265 (holding that, “[b]ased on the facts here, the
crawl space falls within the plain meaning of the term ‘dwelling house’” (emphasis added));
Lacey, 54 Va. App. at 43, 675 S.E.2d at 852 (tying the resolution of the issue to the particular
“circumstances”).
                                                -6-
Wayne R. LaFave, Substantive Criminal Law § 21.1(c), at 214 (2nd ed. 2003) (footnotes

omitted). Thus, if the factfinder reasonably could conclude that the garage and utility room were

common areas between separate apartments, appellant’s argument fails.

       On this record, the factfinder reasonably could and, in fact, did conclude that the Shooks’

living quarters and the apartment were separate dwellings and that the garage and utility room

constituted common areas. The trial court noted that, in undertaking the construction of the

apartment for her mother, Shook “created a separate place” that constituted “a separate

apartment.” Based on all of the evidence, we cannot say that the trial court’s finding that the

apartment was “separate and distinct from where the Shooks were living” is plainly wrong or

without evidence to support it. Accordingly, we must affirm the trial court’s conclusion in this

regard. Kelley v. Commonwealth, 289 Va. 463, 468, 771 S.E.2d 672, 674 (2015).

       In reaching this conclusion, we note that we examine a factfinder’s conclusions “with the

highest degree of appellate deference.” Thomas v. Commonwealth, 48 Va. App. 605, 608, 633

S.E.2d 229, 231 (2006). “An appellate court does not ‘ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt.’” Williams v. Commonwealth,

278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307,

318-19 (1979)). Instead, the only “relevant question is, after reviewing the evidence in the light

most favorable to the prosecution, whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Sullivan v. Commonwealth, 280

Va. 672, 676, 701 S.E.2d 61, 63 (2010) (emphasis added). Here, for the reasons stated, we

cannot say that the trial court was irrational when it concluded that the garage and utility room

represented common areas shared by two separate apartments within one complex.




                                                -7-
       II. The evidence was sufficient to allow the trial court to conclude that appellant
           committed a breaking when he entered the Shooks’ living quarters

       Appellant argues that the evidence was insufficient to support the conclusion that he

committed a breaking to gain entry to the Shooks’ living quarters. Specifically, he argues that there

was evidence that the garage door occasionally was left open, and therefore, he or another person

could have entered the garage without committing a breaking.4 Coupling this premise with his

argument that the garage and the Shooks’ living quarters are part of the same dwelling, he reasons

that the Commonwealth did not and could not prove the breaking necessary to support the charge of

statutory burglary. We disagree.

       To establish a breaking for the purposes of burglary, the Commonwealth need only show

               the application of some force, slight though it may be, whereby the
               entrance is [achieved]. 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 [burglary], so long as those
               acts resulted in an entrance contrary to the will of the occupier of
               the [property].

Finney v. Commonwealth, 277 Va. 83, 88, 671 S.E.2d 169, 172 (2009) (internal quotation marks

and citations omitted) (alterations in original). Here, Shook testified that the door from the

utility room into the Shooks’ living quarters was always closed. Accordingly, the trial court

reasonably could and, in fact, did conclude that appellant committed a breaking when he gained

access to the Shooks’ living quarters by opening the closed door.

       Appellant argues that, even if this is so, breaking and entering has still not been proven

because entry to the structure could have been through an open garage, which he contends is part


       4
          Code § 18.2-90 provides that entering a dwelling at nighttime is statutory burglary even
in the absence of a breaking. The Commonwealth concedes that there was insufficient evidence
adduced as to whether entry to the dwelling occurred during the daytime or at night. Although
not bound by the concession, Epps v. Commonwealth, 47 Va. App. 687, 703, 626 S.E.2d 912,
919 (2006) (en banc), aff’d on other grounds, 273 Va. 410, 641 S.E.2d 77 (2007), we find it
appropriate to adopt it here. Accordingly, the burden was on the Commonwealth to demonstrate
that entry into the Shooks’ living quarters was accomplished by way of a breaking.
                                                -8-
of the same dwelling as the Shooks’ living quarters. In short, he revives his argument that the

factfinder could not conclude that the garage and the utility room were common areas shared by

separate apartments. Because this amounts to nothing more than a restatement of the same

argument that underpinned his first assignment of error, we reject it for the reasons stated above.

                                         CONCLUSION

       Based on the evidence presented, a factfinder reasonably could conclude beyond a

reasonable doubt that the Shooks’ living quarters and the apartment constituted separate dwellings

and that appellant committed a breaking when he entered the Shooks’ living quarters and committed

larceny. Accordingly, we affirm his conviction for statutory burglary in violation of Code

§ 18.2-91.

                                                                                             Affirmed.




                                                -9-
