                  COURT OF APPEALS OF VIRGINIA

Present:  Chief Judge Fitzpatrick, Judge Benton and
          Senior Judge Duff
Argued at Alexandria, Virginia


JONATHAN MICHAEL WHITAKER

                                          MEMORANDUM OPINION BY
v.   Record No. 2050-97-4             JUDGE JAMES W. BENTON, JR.
                                                JULY 7, 1998

COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF STAFFORD COUNTY
                     J. Peyton Farmer, Judge

           Patricia Kelly, Assistant Public Defender,
           for appellant.

           Donald E. Jeffrey, III, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Jonathan M. Whitaker was tried by a judge and convicted of
breaking and entering with the intent to commit larceny, a
statutory burglary in violation of Code   18.2-91. Whitaker
contends the evidence was insufficient to prove a "breaking." We
agree and reverse Whitaker's conviction.
                               I.
     When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. See Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). So
viewed, the evidence proved that prior to trial, Whitaker pleaded
guilty to grand larceny and possession of a firearm after having
been convicted of a felony. The larceny was committed in the
house of Whitaker's mother and stepfather, the same residence in
which the burglary was alleged to have occurred. Following his
plea, Whitaker was tried for burglary in a bench trial with two
codefendants who were charged with multiple offenses involving
property stolen from the house of Whitaker's mother and
stepfather.
     At trial, Whitaker's mother testified that before these
events occurred Whitaker had lived "on and off" in the house. In
1996, she and her husband, Whitaker's stepfather, had agreed to
allow Whitaker to live in their house provided Whitaker
maintained a job and assisted with household chores. On or
around October 31, 1996, Whitaker's stepfather told Whitaker to
look for another place to live because Whitaker lost his job.
Although Whitaker never spent a night in the house after that
day, Whitaker retained a set of keys to the house and returned to
the house on occasion.
     Whitaker's mother further testified that neither she nor
Whitaker's stepfather told Whitaker he was not allowed in the
house. Whitaker's mother testified that she had given Whitaker
permission to enter the house to take showers, pick up clean
clothes, or have a meal. She never asked Whitaker to return his
house key and "never told him not to come back in the house."
     Around mid-November, Whitaker's mother and stepfather
noticed things were missing from the house. Whitaker's mother
called the police to report the missing jewelry, camcorder,
camera, camping stove, binoculars, router, and two firearms.
Whitaker's mother and stepfather then changed the locks on the
front door of the house. Whitaker's mother testified that
nothing was taken after the locks were changed. She also
testified that after she filed the report with the police,
Whitaker admitted to her that he took the firearms.
     Whitaker's stepfather testified that after he told Whitaker
that Whitaker needed to look for another place to live, Whitaker
did not "say anything one way or the other." He did not impose a
time by which Whitaker had to leave. Although Whitaker did not
"come back to spend the night," Whitaker left his clothes and
personal items in the house. When asked if "Whitaker had
permission to be in [the] house," Whitaker's stepfather
testified, "I didn't say he couldn't be there." Whitaker's
stepfather further testified that he did not object to Whitaker
"coming or going, getting his personal items out of the house"
and agreed that Whitaker "had some type of permission to be in
there to get his clothes."
               Whitaker's stepfather noticed the guns missing in
mid-November, several weeks after he told Whitaker to look for
another place to live. The police later recovered the missing
items from several local pawn shops. In a statement to police,
Whitaker admitted that he took two firearms, a camping stove and
a router from his parents' house. Whitaker said that he pawned
the camping stove and the router and that one of the
codefendants, Harris, pawned the guns for him. Whitaker denied
taking or pawning his mother's jewelry.
     Over Whitaker's objection, the trial judge admitted into
evidence a statement made to the police by Whitaker's other
codefendant, Vasquez. Vasquez told police that after Whitaker
got "kicked out," Vasquez drove Whitaker to the house "almost
every day." Vasquez and Harris would sit in Vasquez's car
smoking a cigarette while Whitaker went into the house. Whitaker
took some rings, a circular saw, firearms and a camcorder.
Vasquez stated that he pawned all of the items Whitaker took from
the house. Vasquez stated that the "[f]irst few times [Whitaker]
used his house key but after the locks were changed [Whitaker]
went around to the back of the house and entered, but I'm not
certain how."
     In his defense, Whitaker testified that he called his mother
on several occasions and asked her if he could go into the house
to get clothes and take a shower. On the day he took the guns,
he used his key to enter the house. In the forty minutes he was
in the house, he showered, got some of his clothes, made phone
calls, and ate a sandwich. He decided to take the guns when he
"was pretty much on [his] way out the door." Whitaker testified
that he pawned the camping stove, binoculars, and router before
he had the confrontation with his stepfather on October 31. He
denied taking his mother's jewelry.
     Harris testified that on occasion he and Vasquez would wait
outside the house for Whitaker. However, Harris did not recall
if this was before or after Whitaker was asked to leave, and
Harris did not know whether Whitaker was stealing anything.
Harris recalled that Whitaker had clothes in a backpack when
Whitaker came out of the house. Harris testified that he was not
present when Whitaker took the firearms from the house and he
pawned the firearms for Whitaker as a favor. Harris also
admitted to pawning a saw and some jewelry but testified he did
not remember where he had obtained these items.
     The trial judge found Whitaker guilty of statutory burglary
and sentenced Whitaker to serve concurrent sentences of eight
years with five years and two months suspended on both the grand
larceny and statutory burglary charges. The judge also sentenced
Whitaker to a suspended twelve months on the firearms charge.
                               II.
     In pertinent part, Code   18.2-90 provides as follows:
          If any person in the nighttime enters without
          breaking or in the daytime breaks and enters
          or enters and conceals himself in a dwelling
          house . . . with intent to commit murder,
          rape, robbery or arson in violation of
             18.2-77, 18.2-79 or   18.2-80, he shall be
          deemed guilty of statutory burglary, which
          offense shall be a Class 3 felony. However,
          if such person was armed with a deadly weapon
          at the time of such entry, he shall be guilty
          of a Class 2 felony.

Code   18.2-91 provides 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 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 the particular offense." Martin v. Commonwealth, 13
Va. App. 524, 529, 414 S.E.2d 401, 403 (1992) (en banc);
see Jackson v. Virginia, 443 U.S. 307, 315-16 (1979).
     The Commonwealth conceded at trial that no evidence proved
the time of day Whitaker entered the residence. Therefore, in
order to convict Whitaker under Code   18.2-91, the Commonwealth
had to prove a breaking and entering with intent to commit
larceny. See Code    18.2-90. Whitaker contends that the
evidence was insufficient to prove a "breaking."
             Breaking, as an element of the crime of
          burglary, may be either actual or
          constructive. There is 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 to constitute this
         element of the crime. . . . But a breaking,
         either actual or constructive, to support a
         conviction of burglary, must have resulted in
         an entrance contrary to the will of the
         occupier of the house.

Davis v. Commonwealth, 132 Va. 521, 523, 110 S.E. 356, 357 (1922)
(emphasis added).
     In Davis, the Supreme Court held that no breaking, either
actual or constructive, was proved because the accused had a key
to enter the house and had the right to enter the house. Id. at
523, 110 S.E. at 357. The evidence in this case similarly proved
that Whitaker had a key to the house and had the right to enter
the house. Whitaker's mother testified that when Whitaker called
her she gave him permission to enter the house and that Whitaker
was never told that he could not enter the house. Whitaker was
told to "look" for another place to live but was never asked to
return the key. Whitaker's stepfather testified that he did not
tell Whitaker that he could not be in the house, that he knew
Whitaker still had clothes in the house, and that Whitaker did
have permission to enter the house.
     The Commonwealth argues, however, that even if Whitaker had
permission to enter the house, that permission was limited in
scope. Citing Jones v. Commonwealth, 3 Va. App. 295, 349 S.E.2d
414 (1986), and Clark v. Commonwealth, 22 Va. App. 673, 472
S.E.2d 663 (1996), aff'd en banc, 24 Va. App. 253, 481 S.E.2d 495
(1997), the Commonwealth further argues Whitaker exceeded the
scope of that permission and committed a constructive breaking by
fraud when he took the items from the house.
               In Jones, the defendant entered a department store and
concealed himself in the store after closing. This Court noted
the following:
          Where a store owner invites the public to
          enter his premises he consents for the
          entrant to view his merchandise for the
          limited purpose of purchase, or to otherwise
          engage in a lawful activity thereon. It is
          not the will of the owner that entrance be
          made to defraud or steal from him.

3 Va. App. at 300, 349 S.E.2d at 417. Relying on the statutory
language of Code    18.2-90 and 18.2-91, that a person who
"enters and conceals himself" with the intent to commit larceny
is guilty of statutory burglary, this Court ruled that the
defendant's presence on the premises after the close of business
"constitutes a form of entry by fraud and deception when the
original entry was made with intent to steal." Jones, 3 Va. App.
at 300, 349 S.E.2d at 417 (emphasis added).
     In Clark, the accused entered a store at nighttime during
business hours, asked the counter attendant where the bathroom
was located, went into the bathroom, returned to the counter,
pulled out an object that appeared to be a gun and robbed the
store. The Court ruled that "the statute's language, 'enter[]
without breaking,' specifically excludes breaking as an element,"
and found that the entry was unlawful. 22 Va. App. at 676, 472
S.E.2d at 664.
     Jones involved an entry and concealment on the premises, and
Clark involved an entry at nighttime. Neither case involved a
breaking under Code   18.2-90. Thus, these cases are not
dispositive of the issue presented in this appeal. See Johns v.
Commonwealth, 10 Va. App. 283, 288, 392 S.E.2d 487, 490 (1990).
     Whitaker's parents obviously did not authorize or invite
Whitaker to enter their residence for the purpose of committing
larceny. However, we have held that even where the entry is
contrary to the will of the occupier of the premises, the
requirement of Code    18.2-90 and 18.2-91 that a person "'breaks
and enters' . . . is not satisfied by the mere showing that the
accused entered the [house] with the intent to commit [larceny]
contrary to the will of the occupier of the premises." Johns, 10
Va. App. at 288-89, 392 S.E.2d at 490. The Commonwealth must
also prove a breaking.
     The evidence, viewed in the light most favorable to the
Commonwealth, proves that Whitaker had his own key to the house
and kept his clothing in the house. Neither his mother nor his
stepfather asked him to return the key or told him that he could
not enter the house. When Whitaker entered the house he used his
key, and, therefore, "no fraud was necessary to accomplish his
entry." Johns, 10 Va. App. at 289, 392 S.E.2d at 490. Thus,
there could be no breaking, either actual or constructive.
See Davis, 132 Va. at 523, 110 S.E. at 357. See also Clarke v.
Commonwealth, 66 Va. (25 Gratt.) 908, 919-20 (1874) (there can be
no burglary when "entry was by the voluntary act and consent of
the owner or occupier of the house").
     Because the Commonwealth's evidence failed to prove beyond a
reasonable doubt that a breaking occurred, the evidence was
insufficient to support Whitaker's conviction under Code
  18.2-91. Accordingly, we reverse Whitaker's burglary
conviction and dismiss the indictment.
                              III.
     Whitaker asks us to remand this case back to the circuit
court so the trial judge can reconsider Whitaker's grand larceny
sentence under the sentencing guidelines. We decline to do so.
     Rule 1:1 provides in pertinent part as follows:
             All final judgments, orders, and decrees,
          irrespective of terms of court, shall remain
          under the control of the trial court and
          subject to be modified, vacated, or suspended
          for twenty-one days after the date of entry,
          and no longer.

"The Rule is clear. After the expiration of 21 days from the
entry of a judgment, the court rendering the judgment loses
jurisdiction of the case, and, absent a perfected appeal, the
judgment is final and conclusive." Rook v. Rook, 233 Va. 92, 95,
353 S.E.2d 756, 758 (1987). Whitaker noted no objection to the
larceny sentence when it was entered, did not make a conditional
plea, and did not seek a protective appeal. We have no basis
upon which to remand for resentencing.

Reversed and dismissed.
