Present: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Lacy and Koontz, S.JJ. ∗
CORDARO A. ROWLAND
OPINION BY
v. Record No. 101003 JUSTICE S. BERNARD GOODWYN
March 4, 2011
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the evidence was
sufficient to support the conviction of Cordaro A. Rowland
(“Rowland”) for use of a firearm in the commission of a
burglary when the elements of the burglary were completed
before the use or display of a firearm.
Background
Rowland was convicted in a bench trial, in the Circuit
Court of the City of Richmond, of two counts of robbery, two
counts of use of a firearm in the commission of a robbery,
statutory burglary, and one count of use of a firearm in the
commission of a burglary. Code §§ 18.2-53.1, -58, -91. In
total, Rowland was sentenced to serve a term of 73 years in
prison, with 60 years suspended. On the use of a firearm in
the commission of a burglary conviction, the circuit court
sentenced Rowland to five years’ incarceration.
∗
Justice Koontz presided and participated in the hearing
and decision of this case prior to the effective date of his
retirement on February 1, 2011; Justice Kinser was sworn in as
Chief Justice on February 1, 2011.
In an unpublished opinion, the Court of Appeals denied
Rowland’s petition for appeal of the use of a firearm in the
commission of a burglary conviction, finding the evidence
sufficient to support the conviction. Rowland v. Commonwealth,
Record No. 1381-09-2, slip op. at 2 (Feb. 17, 2010). Rowland
appeals.
On October 4, 2008, between 9:00 and 10:00 p.m., Ban Sung
Luong and Chi Shin Chan were the only employees working at a
restaurant. The back door of the restaurant was the only door
unlocked at the time. While Luong was in the kitchen area of
the restaurant, near the back door, he sensed a person behind
him and turned around to see a man, later identified as
Rowland, pointing a gun at him. Neither Luong nor Chan
observed Rowland enter the restaurant.
Although Rowland was using clothing to partially cover his
face, Luong recognized Rowland as the customer he called “Big
Guy.” “Big Guy” was Luong and Chan’s nickname for Rowland, who
frequently came into the restaurant to ask for free drinks.
While keeping the gun pointed at Luong, Rowland told Chan to
put the money from the cash register into a bag. After Chan
put the money in the bag, Rowland left with the bag through the
back door of the restaurant.
Analysis
2
Rowland alleges that the evidence presented at trial was
insufficient to find him guilty of use of a firearm in the
commission of a burglary. Specifically, Rowland argues that he
cannot be convicted of using a firearm in the commission of a
burglary because the burglary had been completed by the time he
used or displayed the firearm.
The Commonwealth responds that the evidence was sufficient
to support Rowland’s conviction of use of a firearm in the
commission of a burglary because the offense of burglary was
not complete in fact until Rowland had vacated the premises.
Alternatively, the Commonwealth contends that circumstantial
evidence supports finding that Rowland had the firearm in his
hand when he entered the restaurant, and that is sufficient to
prove Rowland used the firearm in the commission of the
burglary.
When a defendant challenges the sufficiency of the
evidence, we view the evidence and all reasonable inferences in
the light most favorable to the Commonwealth, the prevailing
party in the trial court. Jay v. Commonwealth, 275 Va. 510,
524, 659 S.E.2d 311, 319 (2008); Walton v. Commonwealth, 255
Va. 422, 425-26, 497 S.E.2d 869, 871 (1998). We will not,
however, sustain a trial court’s judgment that is plainly wrong
or without evidence to support it. McMorris v. Commonwealth,
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276 Va. 500, 504, 666 S.E.2d 348, 350 (2008); Jay, 275 Va. at
524, 659 S.E.2d at 319.
Code § 18.2-53.1 makes it “unlawful for any person to use
or attempt to use any . . . firearm or display such weapon in a
threatening manner while committing or attempting to commit
. . . burglary . . . .” Rowland’s argument hinges on the word
“while” in Code § 18.2-53.1. Rowland asserts that “while” is
synonymous with “during” and does not include acts subsequent
to the commission of the relevant felony. Thus, Rowland
asserts that he cannot be convicted of Code § 18.2-53.1 for use
of a firearm in the commission of a burglary because he did not
use or display a firearm until after he had committed the
burglary. See Code §§ 18.2-90, -91. We agree.
To constitute burglary of a building permanently affixed
to realty at nighttime, the defendant must enter, with or
without breaking, with the intent to commit a felony within.
Code §§ 18.2-90, -91; see also Fields v. Commonwealth, 215 Va.
120, 121, 207 S.E.2d 822, 823 (1974). Since 1937, this Court
has stated that a burglary is complete when the defendant has
completed all of the elements of the crime. See Falden v.
Commonwealth, 167 Va. 542, 547, 189 S.E. 326, 328 (1937)
(stating that “the crime [of burglary] is complete when a
person armed with a deadly weapon enters a banking house, in
the day time or in the night time, with intent to commit
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larceny, etc.”). An “entry” occurs when any part of the
defendant’s body enters the dwelling. Franklin v.
Commonwealth, 28 Va. App. 719, 722, 508 S.E.2d 362, 364 (1998);
John L. Costello, Virginia Criminal Law and Procedure § 9.1
(4th ed. 2008 & Supp. 2010). In the instant case, the burglary
was complete upon Rowland’s entry into the restaurant with the
intent to commit robbery.
The Commonwealth, relying on Creasy v. Commonwealth, 9 Va.
App. 470, 389 S.E.2d 316 (1990), argues that there is a
distinction between when the crime of burglary is complete for
purposes of prosecution and when the crime is completed in
fact. In Creasy, the Court of Appeals stated:
Code § 18.2-53.1 is not limited in
application to the period of time from the
commencement of the underlying crime until the
point in time when the acts of the defendant make
successful prosecution possible. We hold that
the statute applies to the conduct of the accused
until the underlying crime is completed in fact.
The purpose of Code § 18.2-53.1 is to deter
violent criminal conduct. Violent criminal
conduct may occur at any time between the
commencement of certain crimes and the
perpetrator’s safe retreat. Even though certain
crimes may be established by proof of acts
accomplished at the outset of a criminal venture,
the danger and risk of violent criminal conduct
persists until the crime is completed in fact.
We hold that the General Assembly, in adopting
this provision, intended to discourage the use of
a firearm at any time during the course of the
specified criminal endeavors.
Id. at 473, 389 S.E.2d at 318 (internal citations omitted).
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Because it is well-established that “[w]hen the language
of a statute is unambiguous, courts are bound by the plain
meaning of that language and may not assign a construction that
amounts to holding that the General Assembly did not mean what
it actually has stated,” Baker v. Commonwealth, 278 Va. 656,
660, 685 S.E.2d 661, 663 (2009), we disagree with the analysis
in Creasy. As relevant to this case, Code § 18.2-53.1 requires
that the defendant use, attempt to use, or display in a
threatening manner a firearm while committing burglary. This
Court has used “while” interchangeably with “during,”
indicating that the terms are synonymous. See, e.g., Jay, 275
Va. at 524, 659 S.E.2d at 319 (2008) (reversing conviction for
attempted use of a firearm during the commission of attempted
robbery under Code § 18.2-53.1); Walker v. Commonwealth, 272
Va. 511, 513, 636 S.E.2d 476, 477 (2006) (considering
conviction of use of a firearm during the commission of an
abduction). Thus, the qualifier “while” limits the
applicability of Code § 18.2-53.1 to use of a firearm “during”
a burglary. See Harward v. Commonwealth, 229 Va. 363, 366, 330
S.E.2d 89, 91 (1985) (noting that “during” does not encompass
“before” and “after”).
As stated above, once a perpetrator enters at nighttime,
with or without breaking, with the requisite intent, the crime
of burglary is complete. Although the perpetrator remains
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criminally responsible for any illegal acts performed after the
burglary, the crime of burglary does not continue until the
perpetrator vacates the premises. To extend the application of
Code § 18.2-53.1, as it relates to burglary, to all actions
undertaken after a burglary until the perpetrator vacates the
premises would be to expand the scope of the penal statute
beyond that clearly stated by the General Assembly. We decline
to do so.
In the alternative, the Commonwealth argues that the
circumstantial evidence is sufficient to support the finding
that Rowland used the firearm in the commission of the burglary
because he had the firearm in his hand when he entered the
restaurant. We disagree.
“The Commonwealth has the burden of proving beyond a
reasonable doubt that the accused is guilty of the charged
crime.” McMorris, 276 Va. at 504, 666 S.E.2d at 350.
“ ‘Suspicion of guilt, however strong, or even a probability of
guilt, is insufficient to support a conviction.’ ” Rogers v.
Commonwealth, 242 Va. 307, 317, 410 S.E.2d 621, 627 (1991)
(quoting Cheng v. Commonwealth, 240 Va. 26, 42, 393 S.E.2d 599,
608 (1990)).
Code § 18.2-53.1 prohibits using, attempting to use, or
displaying a firearm in a threatening manner while committing
one of the enumerated felonies. A person “uses” a firearm if
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he or she employs it. See Black’s Law Dictionary 1681 (9th ed.
2009); see also Webster’s Third New International Dictionary
2523 (1993) (defining “use” as “the act or practice of
employing something”). A person “displays” a firearm if he or
she manifests it “to any of a victim’s senses.” Cromite v.
Commonwealth, 3 Va. App. 64, 66, 348 S.E.2d 38, 39 (1986)
(internal citations omitted); see also Moses v. Commonwealth,
45 Va. App. 357, 363, 611 S.E.2d 607, 610 (2005).
Viewed in the light most favorable to the Commonwealth,
the evidence shows that the elements of statutory burglary were
complete before Rowland used or displayed a firearm. There is
no evidence that Rowland used or displayed the firearm when
gaining entry to the restaurant. Neither witness observed
Rowland’s entry. The first time either of the witnesses
noticed Rowland was when Luong turned around to find Rowland
pointing a gun at him. By that time, Rowland had already
entered the restaurant with the intent to commit robbery
therein. The burglary had been completed. The evidence is
insufficient to support a conviction of use or display of a
firearm during the commission of the burglary.
Conclusion
We hold that the Court of Appeals erred when it held that
the evidence was sufficient to support Rowland’s conviction for
use or display of a firearm in the commission of a burglary.
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Accordingly, we will reverse the judgment of the Court of
Appeals, vacate Rowland’s conviction of that offense, and
dismiss the indictment against him.
Reversed, vacated, and dismissed.
9