                                          COURT OF APPEALS OF VIRGINIA


            Present: Judges Alston, McCullough and Senior Judge Clements
PUBLISHED


            Argued at Chesapeake, Virginia


            LEVIN GRIMES
                                                                                 OPINION BY
            v.     Record No. 0293-13-1                                 JUDGE STEPHEN R. McCULLOUGH
                                                                               OCTOBER 29, 2013
            COMMONWEALTH OF VIRGINIA


                          FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                                       Randolph T. West, Judge Designate

                           Charles E. Haden for appellant.

                           Victoria Johnson, Assistant Attorney General (Kenneth T.
                           Cuccinelli, II, Attorney General, on brief), for appellee.


                   We address two issues in this appeal: whether the Commonwealth established that the

            copper pipes stolen by Levin Grimes, appellant in this case, had a value of $200 or more and

            whether the defendant is guilty of burglary when he broke and entered into a walled-in crawl space

            that is integrated into the walls of the dwelling house itself. We conclude that the Commonwealth’s

            evidence does not establish the value of the copper pipe, and we reverse appellant’s convictions for

            grand larceny, conspiracy to commit grand larceny, larceny with the intent to sell or distribute

            property with a value of $200 or more, and conspiracy to commit larceny with the intent to sell or

            distribute property with a value of $200 or more. We affirm, however, his conviction for statutory

            burglary.

                                                      BACKGROUND

                   The house located at 6207 Roanoke Avenue in the City of Newport News had been

            unoccupied since the death of its resident. On the afternoon of June 18, 2012, two neighbors,

            Geraldine Sykes and Joan Taylor, walked over to the house to “look it over.” Taylor was interested
in purchasing the property as an investment. They walked around to the back of the house. While

there, they heard a “clanging” noise coming from under the house. When they heard the noise

again, they concluded that someone must be under the house. Taylor went to call the police. The

door leading to the crawl space was “ajar just a little bit.”

        A man came out from the crawl space. He began to place items in the back of a truck.

Appellant also emerged from the crawl space. He was carrying copper pipe under his arm. He told

Sykes, “ma’am, the lady said I could have this pipe.” Appellant then proceeded to walk away from

the house at a fast pace down the street, dropping items of pipe along the way.

        A police officer soon arrived. The officer observed one man placing a black garbage bag

that had several pipes protruding from the back into a truck. He also observed a second man, later

identified as appellant, walking away. This individual was carrying copper pipe. The officer could

observe several pieces of copper pipe fall to the ground. The officer summoned appellant, but he

continued to walk away.

        Another officer stopped appellant. Appellant was covered in wet mud and sand. At the

time, he was still carrying an armful of copper pipe. When the police searched appellant, he had

three cutting or grabbing tools on his person, along with a flashlight.

        There were copper pipes scattered throughout the backyard of 6207 Roanoke Avenue and

additional pipes near the crawl space. The door to the crawl space was open. The lock on that door

had been cut. Police noticed additional pieces of copper pipe on the street. Still more detached

pipes were found inside the crawl space. In all, police recovered 106 pounds of copper pipes.

Police impounded and searched the truck that was parked next to the house. Inside they found wire

cutting instruments, pipe cutting tools, and pliers.




                                                   -2-
       Appellant stated that he had found the pipes in a dumpster nearby. He could not, however,

say where this dumpster was located. Police searched the area and could not find any dumpsters.

Appellant also denied that he was ever at the property on Roanoke Avenue.

       At trial, the Commonwealth sought to elicit expert testimony from Detective Brad Rodgers

to establish the value of scrap metal. The court held that Rodgers was not an expert and struck his

testimony concerning the value of the copper pipe as scrap metal. The Commonwealth also

presented testimony from Alethea Anthony, a bank employee who served as the executor of the

estate that included the home on Roanoke Avenue. Anthony stated that the bank paid $4,700 to

repair and replace the pipes. James Austin, of Austin Family Repairs, testified that he repaired the

damaged pipes. He explained that the hot and cold pipes were made of copper. He testified that

due to the age of the house, the drainage pipes were made of brass. He explained that brass is no

longer in use. Austin paid approximately $950 for the copper pipes he installed in the home.

       Appellant was charged with grand larceny, conspiracy to commit grand larceny, larceny

with the intent to sell or distribute property with a value of $200 or more, conspiracy to commit

larceny with the intent to sell or distribute property with a value of $200 or more, felony destruction

of property, statutory burglary, and possession of burglary tools.1

       At the close of the evidence, counsel moved to strike the evidence, arguing that the

Commonwealth did not establish the actual value of the pipes. With regard to the burglary, counsel

argued that appellant did not go into the house proper, that he had, instead, gone underneath the

house. The trial court overruled the objections and convicted appellant on all charges. He was later

sentenced to serve a total of 47 years in prison, with 40 years suspended.




       1
         We did not grant appellant’s assignment of error challenging his convictions for
possession of burglary tools and felony destruction of property. Accordingly, those convictions
are not before us.
                                               -3-
                                             ANALYSIS

               When analyzing a challenge to the sufficiency of the evidence, [an
               appellate court] reviews the evidence in the light most favorable to
               the prevailing party at trial and considers any reasonable inferences
               from the facts proved. The judgment of the trial court will only be
               reversed upon a showing that it “is plainly wrong or without
               evidence to support it.”

Wilson v. Commonwealth, 272 Va. 19, 27, 630 S.E.2d 326, 330 (2006) (quoting Code

§ 8.01-680) (citation omitted).2

                               I. VALUE OF THE STOLEN COPPER PIPES

       Appellant contends that the Commonwealth failed to establish a value of $200 or more for

the stolen pipe. Each of the following charges required the Commonwealth to prove a value of

$200 or more: grand larceny, Code § 18.2-95, conspiracy to commit grand larceny, Code § 18.2-23,

larceny of property belonging to another with a value of $200 or more with the intent to sell or

distribute such property, Code § 18.2-108.01, and conspiracy to commit larceny with the intent to

sell or distribute, Code § 18.2-23. “This statutorily specified amount is an essential element of the

offense, and the burden is upon the Commonwealth to establish that element by proof beyond a

reasonable doubt.” Robinson v. Commonwealth, 258 Va. 3, 5, 516 S.E.2d 475, 476 (1999)

(discussing grand larceny).

       The value of an item is determined by its

               market value, and particularly retail value. “Fair market value is the
               price property will bring when offered for sale by a seller who
               desires but is not obliged to sell and bought by a buyer under no


       2
         The Commonwealth argues that, as a threshold matter, appellant’s brief does not
contain sufficient argument and authority. At oral argument, counsel for appellant explained that
portions of his argument on the issue of value that were included in his petition for appeal were
inadvertently omitted from his brief. Upon review of the brief and the petition for appeal filed
with this Court, we conclude that the argument before us is sufficient to enable us to reach the
issue. We also reject the Commonwealth’s argument that appellant’s assignment of error is
deficient. It squarely presents the question of the value of the stolen goods.

                                                 -4-
               necessity of purchasing.” And the original purchase price of an item
               is admissible as evidence of its current value.

Id. at 5-6, 516 S.E.2d at 476 (quoting Bd. of Supervisors v. Donatelli & Klein, Inc., 228 Va. 620,

628, 325 S.E.2d 342, 345 (1985)). It is the “current value” of the stolen items that must be

established. Dunn v. Commonwealth, 222 Va. 704, 705, 284 S.E.2d 792, 792 (1981) (per curiam).

This current value is “measured as of the time of the theft.” Parker v. Commonwealth, 254 Va. 118,

121, 489 S.E.2d 482, 483 (1997). Where an item has no market value, the Commonwealth must

prove “actual value.” Baylor v. Commonwealth, 55 Va. App. 82, 88, 683 S.E.2d 843, 845 (2009).

       Here, the Commonwealth presented no evidence of the market value of the stolen copper

pipes. The Commonwealth attempted to present testimony concerning the scrap value of the pipes,

but that testimony was excluded. Therefore, there is no evidence concerning actual value.

       Although the Commonwealth did not present testimony concerning the market or actual

value of the copper pipe, it did present testimony with regard to replacement cost.3 In some

situations, “replacement value can properly be considered in establishing actual value.” Little v.

Commonwealth, 59 Va. App. 725, 733, 722 S.E.2d 317, 320 (2012). Replacement value does not

operate as a substitute for market value. Rather, replacement value can, in certain circumstances,

afford the fact finder a basis from which to draw inferences about the market value of the stolen

item. See id. at 733, 722 S.E.2d at 321. In Little, for example, we concluded that replacement value

was relevant to establish the value of stolen “demo” phones because the fact finder sensibly could

infer that these phones were current models in good working condition. Id. Replacement value in

the present context is more problematic. There was no testimony concerning the age or condition of

the stolen copper pipes. The photographs of the pipes that were introduced at trial indicate that the


       3
        The Commonwealth notes that the bank spent $4,700 to restore the plumbing to
working condition. The cost of the labor required to install replacement pipes, while certainly
germane when considering restitution, is irrelevant to establishing the value of the stolen pipes.

                                                 -5-
pipes were well worn. Therefore, it is impossible to conclude, as we did in Little, that replacement

value afforded the fact finder an appropriate basis from which to make a commonsense judgment

about the actual value of the old stolen pipes.

        The Commonwealth also notes that certain items, like jewelry, tend to hold their value over

time. See Lester v. Commonwealth, 30 Va. App. 495, 505, 518 S.E.2d 318, 322-23 (1999). We

have held, for example, that evidence of the original purchase price of jewelry that is in good

condition is relevant to establish its current value, provided that only a reasonable amount of time

has passed since the jewelry’s purchase. Id. at 505-06, 518 S.E.2d at 323. Copper pipes are not

analogous to jewelry, which generally is cherished and protected from damage. Although copper

pipes are durable, they can be worn out and damaged over time.4

        With no evidence in the record concerning the age of the pipes or their condition, we

conclude that the Commonwealth failed to establish that the stolen copper pipes had a market or

actual value of $200 or more.5

                [W]here, as here, there is an absence of evidence linking replacement
                value to an accurate determination of actual or fair market value,
                mere evidence of replacement value alone is insufficient as a matter
                of law to support an inference by the fact finder that the value of
                stolen property necessarily exceeds the statutory threshold.

Baylor, 55 Va. App. at 90, 683 S.E.2d at 846-47. Because appellant’s convictions for grand

larceny, conspiracy to commit grand larceny, larceny with the intent to sell or distribute property


        4
          The Commonwealth argues that it should not be limited to proving the scrap metal
value of the copper pipe where the defendant destroyed the value of the pipe by cutting it and
removing it in sections. We do not reach this argument here because the Commonwealth failed
to establish either the fair market value or the actual value of the stolen pipe, before or after it
had been damaged by appellant and his accomplice.
        5
         Appellant also argues that the evidence does not exclude the possibility that another
individual committed the crime. On the evidence before us, this argument is devoid of merit.
Moreover, it is not encompassed by appellant’s assignment of error, which focuses exclusively
on value.

                                                  -6-
with a value of $200 or more, and conspiracy to commit larceny with the intent to sell or distribute

property with a value of $200 or more all required the Commonwealth to establish a value of $200

or more, we reverse and remand those convictions.6

               II. CRAWL SPACE THAT IS ENCLOSED WITHIN THE WALLS OF THE HOUSE
                                CONSTITUTES PART OF THE DWELLING

       Appellant argues that he is not guilty of the crime of burglary because, “[a]t most, the

evidence established that he crawled under the residence, which is not the same thing as entering

the residence.” Appellant’s Br. at 28. Code § 18.2-91 provides in relevant 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.” The act mentioned in Code § 18.2-90, as relevant here, is

breaking and entering in a dwelling house in the daytime. A “dwelling house is a house that one

uses for habitation, as opposed to another purpose.” Giles v. Commonwealth, 277 Va. 369, 375,

672 S.E.2d 879, 883 (2009). Appellant does not contest that the residence here constitutes a

dwelling house.7

       The question before us is one of statutory interpretation. We review de novo such

questions of law. Young v. Commonwealth, 273 Va. 528, 533, 643 S.E.2d 491, 493 (2007).

When interpreting a statute, we seek to determine the General Assembly’s intent by the words

used in a statute, and when a statute is unambiguous, we are bound by the plain meaning of its

language. Commonwealth v. Diaz, 266 Va. 260, 264-65, 585 S.E.2d 552, 554 (2003). In

analyzing the statute, we give each word “‘its ordinary meaning, given the context in which it is


       6
          The parties have not consented to a remand for a new sentencing hearing. Therefore,
we remand for a new trial. See Commonwealth v. South, 272 Va. 1, 630 S.E.2d 318 (2006);
Britt v. Commonwealth, 276 Va. 569, 576, 667 S.E.2d 763, 766 (2008).
       7
         In light of our holding, we do not reach the Commonwealth’s alternative contention that
the crawl space constitutes part of a “building permanently affixed to realty” under Code
§ 18.2-90.

                                                -7-
used.’” Sansom v. Bd. of Supervisors, 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999)

(quoting Dep’t of Taxation v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d

532, 533-34 (1980)). “[P]enal statutes are to be strictly construed against the Commonwealth

and in favor of a citizen’s liberty.” Fullwood v. Commonwealth, 279 Va. 531, 536, 689 S.E.2d

742, 746 (2010). “Even though any ambiguity or reasonable doubt as to the meaning of a penal

statute must be resolved in favor of an accused, nevertheless a defendant is not entitled to benefit

from an ‘unreasonably restrictive interpretation of the statute.’” Holloman v. Commonwealth,

221 Va. 196, 198, 269 S.E.2d 356, 357 (1980) (quoting Ansell v. Commonwealth, 219 Va. 759,

761, 250 S.E.2d 760, 761 (1979)).

         The record establishes that the crawl space of the house is enclosed within the walls of

the house. Access to the crawl space is through a separate exterior door that is built into the

lower part of one of the exterior walls of the dwelling house. The crawl space thus physically

constitutes part of the “dwelling house.” The plain language of the applicable statutes does not

exclude from their scope any of the spaces that are encompassed within the walls of the dwelling

house. Appellant’s actions thus satisfied the terms of the statute: he broke and entered in a

dwelling house during the daytime. Moreover, the facts establish a breaking and entering – the

lock placed on the door to the crawl space was severed, and appellant had entered the crawl

space.

         Our conclusion is consistent with the conclusion we reached in Lacey v. Commonwealth,

54 Va. App. 32, 675 S.E.2d 846 (2009). There, the defendant had entered the residential area of

the dwelling through a garage. The garage shared brickwork and a roof with the first floor of the

house. Id. at 35, 675 S.E.2d at 848. We concluded that the garage constituted “part of the

dwelling house for purposes of the burglary statute.” Id. at 43, 675 S.E.2d at 852. It is true that,

unlike the garage at issue in Lacey, there is no evidence that the crawl space here connects with

                                                -8-
the interior of the home, nor is the crawl space employed for “ordinary household functions.” Id.

The absence of these factors, however, is not dispositive. A burglar who breaks and enters a

structure encompassed within the walls of a dwelling house has satisfied the plain language of

the statute. Moreover, our conclusion accords with the purpose of the burglary statutes, which is

to protect the sanctity of the home. Accordingly, we affirm appellant’s conviction for statutory

burglary.

                                         CONCLUSION

       We affirm appellant’s conviction for burglary.8 We reverse and remand his remaining

convictions for a new trial on lesser charges, should the Commonwealth, in its discretion, elect to

retry him.

                                                                             Affirmed, in part and
                                                                   reversed and remanded, in part.




       8
         The trial court imposed restitution in the amount of $4,700 in connection with
appellant’s burglary conviction. Appellant does not challenge the restitution component of his
burglary conviction. Because we affirm appellant’s burglary conviction, the restitution
component of appellant’s burglary sentence is not disturbed by our holding.
                                                 -9-
