                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, McClanahan and Haley
Argued at Richmond, Virginia


LANE MATTHEW STEGALL, S/K/A
 LANE STEGALL, JR.
                                                              MEMORANDUM OPINION * BY
v.     Record No. 1003-09-3                                   JUDGE JAMES W. HALEY, JR.
                                                                     APRIL 6, 2010
COMMONWEALTH OF VIRGINIA


                       FROM THE CIRCUIT COURT OF HENRY COUNTY
                                 David V. Williams, Judge

                 S. Jane Chittom, Appellate Defender (Office of the Appellate
                 Defender, on briefs), for appellant.

                 Joshua M. Didlake, Assistant Attorney General (William C. Mims,
                 Attorney General, on brief), for appellee.


                                                  I.

        Lane Matthew Stegall (“Stegall”) was convicted of statutory burglary in violation of

Code § 18.2-91. Stegall argues that the trial court erred in finding sufficient evidence of

statutory burglary because he entered the house with the consent of an occupant. Finding that

the relevant precedents are opposed to Stegall’s position, we disagree and affirm his conviction.

                                                  II.

                                               FACTS

       Pursuant to the standard of review applicable to challenges to the sufficiency of the

evidence to sustain a conviction, we state the facts in the light most favorable to the

Commonwealth. Blow v. Commonwealth, 52 Va. 533, 536, 665 S.E.2d 254, 255 (2008).

Bradley Witt (“Witt”) entered the house of his grandmother, Doris Boyd (“Boyd”), by squeezing

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
through her bathroom window on the night of May 28-29, 2008. Witt was fifteen years old and

lived in the house at the time. Witt testified for the Commonwealth at Stegall’s trial, and

according to Witt’s testimony, Stegall had been drinking with Witt, Jonathan Rivers, and Chris

Adkins earlier that night and the four of them planned to enter Witt’s grandmother’s house and to

steal some of her pills. Witt said he entered via the bathroom window because he did not want to

disturb his grandmother, and also because he had lost his house key. Once inside, Witt

apparently changed his plan to leave his grandmother undisturbed, because he entered her

bedroom, spoke to her for about five minutes, kissed her goodnight, and then left the bedroom.

According to Boyd, this happened approximately between midnight and 12:30 a.m. After his

grandmother had gone to bed, Witt opened the door of the house to his three companions, who

came inside.

       Stegall, Witt, Rivers, and Adkins took the safe out of Boyd’s closet and took pills from

her purse, though before they entered the house, their verbal plans had included only their theft

of Boyd’s pills. Investigator Jerry Farmer (“Farmer”) of the Henry County Sheriff’s Department

later took a statement from Stegall regarding the incident. According to his statement to Farmer,

Stegall helped the others to carry the safe to Rivers’ house after Adkins had thrown the safe out

of a window. After Rivers opened the safe, Rivers gave Stegall some jewelry and 7 or 8 pills.

                                                 III.

                                           ANALYSIS

       “When the sufficiency of the evidence is attacked, the judgment of the trial court sitting

without a jury is entitled to the same weight as a jury verdict and will not be disturbed by us

unless plainly wrong or without evidence to support it.” Evans v. Commonwealth, 215 Va. 609,

613, 212 S.E.2d 268, 271 (1975). The trial court convicted Stegall of violating Code § 18.2-91,

which, among other specified acts, prohibits any person from committing “any of the acts


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mentioned in Code § 18.2-90 with the intent to commit larceny . . . .” Code § 18.2-90 applies

when any person “in the nighttime enters without breaking . . . a dwelling house . . . .” Stegall

does not dispute that Boyd’s house is “a dwelling house” within the meaning of the statute. Nor

does he contend that the evidence at trial failed to prove that Stegall entered Boyd’s house in the

nighttime with an intention to steal Boyd’s pills. Instead, Stegall claims that despite proof of

each element expressly mentioned in the statute, his conviction must be reversed in light of the

undisputed testimony that he entered Boyd’s house with the consent of Bradley Witt, who was an

occupant of the house.

       On brief, Stegall relies heavily on Johns v. Commonwealth, 10 Va. App. 283, 284, 661

S.E.2d 487, 488 (1990), in which this Court reversed the defendant’s conviction for violating the

terms of Code § 18.2-90 applicable to any person who “breaks and enters . . . any . . . banking

house” with the intent to commit robbery. The defendant in Johns entered a bank through a

closed door when the bank was still open for business, displayed a gun to the bank tellers, and

robbed the bank. Id. at 285, 661 S.E.2d at 488. We reversed the defendant’s burglary conviction

because the statutory language required proof of a breaking and, though such proof requires

evidence of only slight force, we reasoned that to hold that the defendant’s opening of the

unlocked bank door satisfied the breaking element would be inconsistent with the:

               well settled principle that the force must be applied to something
               attached to the premises and relied upon by the occupant for safety.
               Finch v. Commonwealth, 55 Va. (14 Gratt.) 643, 645 (1858). In
               the present case, neither the evidence nor common experience
               would support the argument that during business hours the bank
               had its door closed and unlocked for safety.

Id. at 286-87, 661 S.E.2d at 489. We agree with the Commonwealth that Johns is distinguishable

from this case. The defendant in Johns was convicted under statutory language requiring proof

of a breaking – “breaks and enters . . . any . . . banking house” – while the portion of Code

§ 18.2-91 applicable to the nighttime entry into a dwelling house also applies to one who “enters

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without breaking . . . .” Indeed, the Johns decision indicates that the result of the case would

have been different if the Commonwealth had instead chosen to prosecute under Code § 18.2-93,

which does not require proof of a breaking. See id. at 285 n.1, 392 S.E.2d at 488 n.1.

        Stegall may be correct that his conviction is inconsistent with the common law

understanding that burglary must be against the will of the occupier of the house. See, e.g. Davis

v. Commonwealth, 132 Va. 521, 523, 110 S.E. 356, 357 (1922); Clarke v. Commonwealth, 66

Va. (25 Gratt.) 908, 912-15 (1874). Yet we have previously noted that “Code §§ 18.2-90 and

18.2-91 expand traditional notions of common law burglary . . . .” Hitt v. Commonwealth, 43

Va. App. 473, 480, 598 S.E.2d 783, 786 (2004). And in Clark v. Commonwealth, 22 Va. App.

673, 674, 472 S.E.2d 663, 664 (1996), aff’d en banc, 24 Va. App. 253, 481 S.E.2d 495 (1997),

this Court affirmed the defendant’s conviction for statutory burglary in violation of Code

§ 18.2-90 where the evidence showed that the defendant entered a grocery store, in the nighttime

but during regular business hours, and displayed to an employee an object the employee believed

was a gun, thus inducing the employee to give him money from the store’s cash register.

        The relevant statutory language in Clark was analogous to the language in this case

because the burglary statute expressly applied to the defendant’s conduct without proof of a

breaking. See former Code § 18.2-90 (“If any person . . . in the nighttime enters without

breaking . . . any . . . shop . . . with the intent to commit . . . robbery.”). “Although breaking is an

essential element of common law burglary, the statute’s language, ‘enter[] without breaking,’

specifically excludes breaking as an element.” Clark, 22 Va. App. at 676, 472 S.E.2d at 664.

Stegall responds that because 1) statutes in derogation of the common law must be strictly

construed so as not to enlarge the scope of offenses, Hyman v. Glover, 232 Va. 140, 143, 348

S.E.2d 269, 271 (1986); and 2) the legislature has not expressly revoked the common law

principle that a burglary must be against the will of the occupier of a house, we must, therefore,


                                                 -4-
reverse his conviction. But this is essentially the same argument made by the Clark dissent,

Clark, 22 Va. App. at 678-84, 481 S.E.2d at 665-67 (Benton, J., dissenting), and was necessarily

rejected both by the panel majority in that case and again by this Court en banc. So whatever its

merits, it is a view that this panel cannot now embrace. See Harper v. Commonwealth, 54

Va. App. 21, 24, 675 S.E.2d 841, 843 (2009) (“Panel decisions may be overruled through the en

banc hearing process . . . but not by other panel decisions.”).

       Any further doubt about the resolution of this case was resolved by our Supreme Court’s

recent decision in Jones v. Commonwealth, 279 Va. 295, 687 S.E.2d 738 (2010). In Jones, a

friend of the defendant told him that a man insulted her. Much later the same night, Jones and

his friend, Catherine Callahan, together with Sheldon Parker, another friend of theirs, went to the

man’s apartment to “discuss it.” The man’s roommate let Callahan in and did not object when

Jones and Parker entered the apartment. Jones was armed with a handgun. Jones and Parker

knocked on the door of the bedroom of the man who supposedly insulted Callahan, asking him to

come out and talk. When he did not, Jones kicked in the door. The trial court convicted Jones of

statutory burglary with the intent to commit assault and battery while armed with a deadly

weapon in violation of Code § 18.2-91. Like Stegall, Jones appealed, arguing that, “the evidence

was insufficient to establish statutory burglary because he entered the apartment with the consent

of one of its occupants.” Like Stegall, Jones relied on the common law understanding of

burglary, particularly Davis, 132 Va. 521, 110 S.E. 357. But our Supreme Court rejected his

argument and affirmed his burglary conviction:

               We disagree with Jones’ argument that Davis has any application
               to this case. The Davis opinion makes it clear that “breaking,” a
               required element of the crime charged under the law governing at
               the time, was central to that decision. See 132 Va. at 523, 110 S.E.
               at 357. However, “breaking” is not an element of the crime in the
               instant case because the entry occurred at night. Code § 18.2-90;
               Finney v. Commonwealth, 277 Va. 83, 88, 671 S.E.2d 169, 172
               (2009). Furthermore, in Davis, this Court stated that a person

                                                -5-
               authorized to enter a dwelling may nevertheless be guilty of
               burglary if that person “actually enters for the purpose of carrying
               out a previously formed design to commit a felony.” Davis, 132
               Va. at 524, 110 S.E. at 357. Thus, permission or authorization to
               enter may be negated by the invitee’s or guest’s intent for purposes
               of establishing burglary or statutory burglary. In the present case,
               any permission to enter the apartment given to Jones does not
               preclude a conviction for statutory burglary because that
               permission would have been negated by his intent to commit
               assault and battery, an intent fully supported by the record in this
               case as discussed above.

Jones, 279 Va. at 300, 687 S.E.2d at 741 (emphasis added).

       At oral argument, Stegall suggested that Jones is distinguishable because Bradley Witt,

the occupant who consented to Stegall’s entry into his grandmother’s house, shared Stegall’s

intent to steal, while there was no evidence that the man who apparently consented to Jones’

entry into his apartment also shared Jones’ intent to commit an assault and battery on his

roommate. We acknowledge this distinction, but it does not speak to the rationale of Jones.

Burglary is an offense against the security of the habitation; the laws against it are meant to

prevent the danger of violence between the burglar and occupants, see Yeatts v. Commonwealth,

242 Va. 121, 140, 410 S.E.2d 254, 266 (1991) (citing cases), and when the occupant shares the

burglar’s intentions the danger of mutual surprise and violence is lessened considerably. But

when a prior decision is controlling both its holding and its ratio decidendi stand as binding

authority. See Roadcap v. Commonwealth, 50 Va. App. 732, 743, 653 S.E.2d 620, 625 (2007).

So we cannot ignore the language of the Jones opinion attributing the decision to the omission of

a “breaking” element from the statutory text and to the principle that “permission or

authorization to enter may be negated by the invitee’s or guest’s intent for purposes of

establishing statutory burglary.” Jones, 279 Va. at 300, 687 S.E.2d at 741. In this case, it is

undisputed that the statute did not require proof of a breaking and that Stegall entered the house

with the intent to steal. To reverse Stegall’s conviction would be unfaithful to Jones.


                                                -6-
                                                IV.

                                          CONCLUSION

       For the reasons above, we hold that the trial court did not err in finding the evidence

sufficient to convict Stegall of statutory burglary. His conviction is affirmed.

                                                                                         Affirmed.




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