                     COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bray and Annunziata
Argued at Norfolk, Virginia

WARREN THADDIOUS BUIE

v.          Record No. 0117-95-1             OPINION BY
                                       JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA                  JANUARY 16, 1996

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

           Edward I. Sarfan (Sarfan & Nachman, on brief),
           for appellant.
           Eugene Murphy, Assistant Attorney General
           (James S. Gilmore, III, Attorney General;
           Robert B. Condon, Assistant Attorney General,
           on brief), for appellee.



     Warren T. Buie (defendant) was convicted on an indictment

charging burglary of "a certain office, shop, storehouse, warehouse

or other house" in violation of Code § 18.2-91.     On appeal, he

contends that the evidence was insufficient to support the

conviction.   We disagree and affirm the decision of the trial

court.

     Under familiar principles of appellate review, we examine "the

evidence in the light most favorable to the Commonwealth, granting

to it all reasonable inferences fairly deducible therefrom."
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987).   "The judgment of a trial court sitting without a jury is

entitled to the same weight as a jury verdict and will not be set

aside unless it appears from the evidence that [it] is plainly

wrong or without evidence to support it."    Id.

     During the predawn hours of June 28, 1994, defendant was
observed "moving back and forth" inside an "office trailer"

(trailer) located within the perimeter of a fenced construction

site that was secured by locked gates.    Police were summoned to the

scene, and defendant, appearing from the side of the trailer,

raised his arms, and stated, "All right.   You guys got me.   I was

trespassing."   Subsequent investigation revealed broken glass and

open windows in the trailer, interior cabinets "rummaged through,"

and other contents in disarray.
     The evidence disclosed that the fully enclosed trailer rested

on blocks positioned along its underside, was served by

electricity, air conditioned, and was appropriately designed and

furnished for office use.   The trailer was accessed by steps

leading to one of two doors, both of which, together with its

several windows, were locked at the conclusion of each workday.    It

is uncontroverted that the structure regularly functioned as an

office at the time of the offense.

     Nevertheless, defendant argues that the trailer was not

sufficiently "permanent" and "affixed to realty" to satisfy the

elements of Code § 18.2-91. 1

     Code § 18.2-91 provides, inter alia:
          If any person [commits] any of the acts
          mentioned in Code § 18.2-90 with intent to
          commit larceny . . . he shall be guilty of
          statutory burglary . . . .




     1
      Other elements of the offense are not in issue on appeal.




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

          If any person . . . in the nighttime enters
          without breaking or at any time breaks and
          enters . . . any office, shop, storehouse,
          warehouse, banking house, or other house . . .,
          he shall be deemed guilty of statutory burglary
          . . . .


     In construing Code § 18.2-90, the Supreme Court determined

that the term "'other house' . . . placed at the end of a list of

specific references to various structures[,]" all of which "share

the common element of being improvements affixed to the ground,"

manifests legislative intent that such structures be a part of the

realty.   Graybeal v. Commonwealth, 228 Va. 736, 740, 324 S.E.2d

698, 700 (1985); Crews v. Commonwealth, 3 Va. App. 531, 536, 352

S.E.2d 1, 3-4 (1987).    Thus, "in order for a structure to be the

subject of burglary, . . . [it] must be permanently affixed to the

ground . . . at the time of the unlawful entry."    Dalton v.

Commonwealth, 14 Va. App. 544, 548, 418 S.E.2d 563, 565 (1992). 2

     In Dalton, we noted that permanency is "necessarily a factual

determination . . . that may vary from case to case."    Id. at n.1,

418 S.E.2d at 565 n.1.   Therefore, "the focus . . . is on whether

the structure is affixed to the ground so as to become a part of

the realty at the time of the unlawful entry and not that the
manner in which it is affixed . . . will in fact be permanent."

Id. (emphasis added).    "Whether previously mobile property that has

been rendered stationary is affixed and a part of the real estate,

     2
      Although not an issue in this appeal, Dalton also instructs
that "a structure subject to burglary must . . . have walls and a
roof." Dalton, 14 Va. App. at 548, 418 S.E.2d at 565.




                                 - 3 -
and thus a subject of burglary, is a factual question[,]" and the

determination of the trial court will be reversed only if

unsupported by credible evidence.   Rooney v. Commonwealth, 16 Va.

App. 738, 740, 432 S.E.2d 525, 526-27 (1993); Dalton, 14 Va. App.

at 546, 418 S.E.2d at 564.

     In Rooney, the appellant also challenged a burglary conviction

resulting from the unlawful entry of an office trailer, arguing

that it was not a structure contemplated by Code §§ 18.2-90
and -91.   Rooney, 16 Va. App. at 739-40, 432 S.E.2d at 526.   In

affirming the conviction, we noted that the trailer was "set up on

a . . . lot[,] . . . rested on a cinder block foundation," and was

regularly utilized as an "office," with attendant electric service

and furnishings, all characteristics shared by the trailer subject

of the instant offense.   Id. at 740, 432 S.E.2d at 527.    Moreover,

the instant trailer was served by fixed steps leading from ground

level to an elevated doorway and surrounded by a secure fence.

     We, therefore, find ample support in the record for the

court's conclusion that the trailer was protected by the provisions

of Code §§ 18.2-90 and -91 and affirm the conviction.
                                                   Affirmed.




                                - 4 -
