                                             COURT OF APPEALS OF VIRGINIA
UNPUBLISHED


              Present: Chief Judge Huff, Judges Petty and Beales
              Argued at Richmond, Virginia


              WALTER JAMES GRAVES
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 1341-16-2                                    CHIEF JUDGE GLEN A. HUFF
                                                                                    MAY 23, 2017
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF SUSSEX COUNTY
                                                Nathan C. Lee, Judge

                               Eric J. Livingston (Livingston and Walsh, PLLC, on brief), for
                               appellant.

                               Rosemary V. Bourne, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Walter James Graves (“appellant”) appeals his conviction of breaking and entering, with

              the intent to commit a felony, in violation of Code § 18.2-91.1 Following a bench trial in the

              Circuit Court of Sussex County (“trial court”), appellant was sentenced to twenty years’

              incarceration, with sixteen years suspended. On appeal, appellant contends that the trial court

              erred by “convicting [appellant] of breaking and entering on May 5, [2015] because at the time

              of the alleged offense he had never voluntarily or involuntarily surrendered his residency and




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Appellant was also found guilty of felony violation of a protective order, misdemeanor
              violating a protective order, destruction of property, and two counts of misdemeanor trespass, in
              violation of Code §§ 16.1-253.2, 18.2-60.4, 18.2-137, and 18.2-119, respectively. These
              convictions are not the subject of this appeal.
habitation at the address and was only prohibited from being at the address by the terms of a

Protective Order.”2, 3 For the following reasons, this Court affirms appellant’s conviction.

                                        I. BACKGROUND

       On appeal, “we consider the evidence and all reasonable inferences flowing from that

evidence in the light most favorable to the Commonwealth, the prevailing party at trial.”

Williams v. Commonwealth, 49 Va. App. 439, 442, 642 S.E.2d 295, 296 (2007) (en banc)

(quoting Jackson v. Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004)). So viewed,

the evidence is as follows.

       In 2014, while appellant was incarcerated for offenses unrelated to this appeal, appellant

threatened his wife, Jean Harvell Graves (“wife”), saying “[he] wished [he] had did what [he]

said that [he] was going to do to [her] in the first place.” Appellant also wrote several letters to

wife, blaming her for his incarceration, calling her derogatory names, and threatening to “get

her” and to “burn[] . . . [her] house down with [her] in it.”

       Due to appellant’s threats, wife petitioned for a protective order against appellant. The

protective order, entered December 3, 2014, provided that until December 3, 2016, appellant was

not to have any contact with wife and that “[wife] is granted possession of the residence

occupied by the parties to the exclusion of [appellant]. . . . [Appellant] shall immediately leave




       2
         Appellant further asserts in his assignment of error that: “Code § 18.2-119 which
addresses misdemeanor trespass . . . would have been the proper charge for the May 5, [2015]
incident.” This argument is without merit. As this Court has already articulated, “[w]here the
circumstances surrounding an offense permit prosecution under either of two statutes, the
selection of the statute under which to proceed is a matter of prosecutorial election. We cannot
gainsay the exercise of that right.” Smith v. Commonwealth, 17 Va. App. 37, 41, 434 S.E.2d
914, 916 (1993) (citing Mason v. Commonwealth, 217 Va. 321, 323-24, 228 S.E.2d 683, 684
(1976)).
       3
          Appellant does not challenge the sufficiency of the evidence to prove his felonious
intent; accordingly, this Court does not address it.
                                                -2-
and stay away from the residence; however, no such grant of possession shall affect title to any

real or personal property.” Appellant was served with the protective order on December 3, 2014.

       Despite this protective order, on May 2, 2015, around 10:30 a.m. appellant was at wife’s

residence, “kicking at the back door.” Wife turned on her home alarm system and attempted to

use her landline telephone but found it inoperative. She then used her cell phone to call the

sheriff’s office. After appellant had kicked the door for five or six minutes, wife heard a noise

outside of her bedroom window. Looking out of her bedroom window, wife saw appellant

standing near her electrical meter with his arms raised. Soon after, the electricity to the house

was disabled.

       Law enforcement arrived around eleven that morning. While wife and the officer walked

the perimeter of the house, they noted that the telephone wires were severed, the latch on the

back door was broken and the door left slightly ajar, and the electrical meter box by wife’s

bedroom was gone. The officer did not find appellant on the premises during his search.

       On May 5, 2015, wife arrived home around 2:00 p.m. to meet a contractor. After

disarming the alarm, wife felt that something was not right and began to look through each room

in her house. When she looked in the master bedroom, she noticed the window screen was

slashed and the storm window had been removed. She also observed that appellant’s clothes,

which she had removed from the closet, had been rehung. As wife passed the foot of her bed,

she saw appellant’s arm protruding from under the bed and when she looked under the bed, she

found appellant lying face up with his eyes open.

       After seeing appellant, wife left her bedroom and told the contractor that appellant was in

the house. Wife, the contractor, and his assistant promptly left the house to stand in the

driveway. About thirty seconds later, appellant came out and stated that he was only in the

house to retrieve his identification. Appellant re-entered the house and about two minutes later,

                                                -3-
walked out of the house toward wife and the contractor. Appellant shook the contractor’s hand,

then picked up a cinder block. The contractor told appellant, “[y]ou’re not going to hurt her,”

and appellant responded, “No, I’m not going to hurt her.” He then threw the cinder block

through wife’s car windshield and left.

       Appellant was later charged with breaking and entering with the intent to commit a

felony. During his trial, appellant moved to strike the evidence on the ground that a person

cannot burglarize his own habitation. The trial court denied the motion and found that although

appellant had been living with wife in the house since they were married in 2008, wife had

inherited the house from her parents prior to their marriage and appellant did not have any

ownership interest in the property. At the close of the evidence, appellant again argued the

charge should be dismissed because the house was his residence. The trial court denied

appellant’s motion and found him guilty. This appeal followed.

                                 II. STANDARD OF REVIEW

       “What the elements of the offense are is a question of law that we review de novo.

Whether the evidence adduced is sufficient to prove each of those elements is a factual finding,

which will not be set aside on appeal unless it is plainly wrong.” Lawlor v. Commonwealth, 285

Va. 187, 223-24, 738 S.E.2d 847, 868 (2013). Viewing the evidence and reasonable inferences

drawn therefrom in the light most favorable to the prevailing party,

               the question is whether any rational trier of fact could have found
               the essential elements of the crime beyond a reasonable doubt. . . .
               [I]f there is evidence to support the conviction, the reviewing court
               is not permitted to substitute its judgment, even if its view of the
               evidence might differ from the conclusions reached by the finder
               of fact at the trial.

Id. at 224, 738 S.E.2d at 868 (quoting Commonwealth v. McNeal, 282 Va. 16, 20, 710 S.E.2d

733, 735 (2011)).



                                               -4-
                                          III. ANALYSIS

       As used in Code §§ 18.2-90 and 18.2-91,4 “‘the term “dwelling house” . . . means a place

which human beings regularly use for sleeping[,]’and the crime was, ‘at common law, primarily

an offense against the security of [another’s] habitation, and that is still the general conception of

it.’” Turner v. Commonwealth, 33 Va. App. 88, 92, 531 S.E.2d 619, 621 (2000) (alterations in

original) (quoting Rash v. Commonwealth, 9 Va. App. 22, 25, 383 S.E.2d 749, 751 (1989)). “In

enacting Code §§ 18.2-90 and -91, the legislature . . . [expanded] the common law to safeguard

both conventional dwelling houses and other specified structures, ‘used as a dwelling or place of

human habitation,’ from unlawful invasion.” Id. at 93, 531 S.E.2d at 621 (emphasis added). In

this way, statutory burglary continues to preserve “the ancient notion that a man’s home [is] his

castle and that he [has] the right to feel safe therein.” Rash, 9 Va. App. at 25, 383 S.E.2d at 751.

       In Turner, this Court upheld the defendant’s burglary conviction because he was under a

court order to have no contact with his wife, “a restriction that clearly precluded his habitation of

the trailer” where wife resided, despite his joint ownership of it. 33 Va. App. at 94-95, 531

S.E.2d at 622. In so ruling, this Court rejected the defendant’s argument that one could not be

convicted of breaking and entering his own property. Id. at 93, 531 S.E.2d at 621. This Court

reasoned that to accept the defendant’s argument would “discount[] the sanctity of habitation,

upending the gravamen of the offense” of burglary, in violation of Code §§ 18.2-90 and 18.2-91.

Id. Instead, this Court concluded that under the court order, “the defendant’s proprietary interest

was relegated to wife’s superior possessory interest and right to exclusive habitation.” Id. at

94-95, 531 S.E.2d at 622. Therefore, the “defendant’s acts in breaking and entering the home,


       4
          Code § 18.2-90 provides, in pertinent part, that a person will be guilty of statutory
burglary “[i]f [he] 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.” Code § 18.2-91 governs if the perpetrator’s intent was, instead, to “commit larceny,
[assault and battery,] or any felony other than murder, rape, robbery or arson . . . .”
                                                -5-
accompanied by the requisite unlawful intent, offended wife’s right of habitation and constituted

burglary in violation of Code §§ 18.2-90 and -91, notwithstanding his joint ownership of the

property.” Id. at 95, 531 S.E.2d at 622 (emphasis added).

        Similarly, in this case, as a result of the protective order, wife’s house was no longer

appellant’s residence and any interest appellant had in her home “was relegated to wife’s

superior possessory interest and right to exclusive habitation.” See id. Thus, the evidence was

sufficient to find that appellant’s entry into wife’s house with the intent to commit a felony

“offended wife’s right of habitation” in violation of Code § 18.2-91. See id. The fact that

appellant’s clothing and identification were still in the house does not alter this conclusion.

Appellant could have simply made arrangements to retrieve his personal effects rather than break

into wife’s home (and, thereby, violate the protective order the court had put in place). The

ruling of the trial court is affirmed.

                                         IV. CONCLUSION

        For the foregoing reasons, this Court affirms appellant’s conviction.

                                                                                           Affirmed.




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