Present: All the Justices
CHRISTOPHER LEE GILES
OPINION BY
v. Record No. 080906 JUSTICE LEROY F. MILLETTE, JR.
February 27, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal from a defendant’s conviction for burglary,
we consider the meaning of dwelling house as a required element
of Code § 18.2-89.
BACKGROUND
On the night of September 28, 2005, Christopher Lee Giles
participated in the breaking and entering of a house located in
Martinsville. The owner of the house, Oscar Thornton, Jr.
(Thornton), inherited it from his mother, who had died on June
28, 2005.
Thornton, whose primary residence is in Baltimore,
Maryland, went to the house at least once or twice per month
after his mother’s death. Thornton stayed at the house the
entire weekend of September 17, 2005, which was just ten days
prior to the break in.
The house had furniture in the three bedrooms, living
room, family room, and kitchen. Thornton had his own sleeping
quarters in the house, and he kept food in the pantry,
cabinets, and refrigerator. The house had operational utility
services, including electricity and water. During the break
in, Giles took food, quilts, blankets, sheets, towels, bathroom
supplies, two televisions, and a videocassette recorder from
the house.
Giles’ participation in the break in is not in dispute.
At the conclusion of the Commonwealth’s evidence, Giles moved
to strike on the ground that the Commonwealth had failed to
establish a prima facie case. Giles argued that the
Commonwealth failed to establish the house was a dwelling
house, required as an element of Code § 18.2-89, because no one
was living there at the time and it was not being regularly
used for sleeping. The circuit court denied the motion to
strike, finding sufficient evidence to support the conclusion
that the house was a dwelling house. The circuit court
inferred that Thornton intended to return to the house, and
that while he did not spend every night there because he
resided in Baltimore, his intent to return was sufficient to
find that the house was a dwelling house. At the close of all
the evidence, Giles renewed his motion to strike. The circuit
court again denied the motion and found Giles guilty of
burglary, in violation of Code § 18.2-89. The circuit court
sentenced Giles to a term of imprisonment of 20 years, with 13
years and 8 months suspended.
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Giles appealed his conviction to the Court of Appeals.
The Court of Appeals affirmed the circuit court’s judgment in a
published opinion, stating that if an occupant of a house
maintains it “for immediate or rapid habitation;” inhabits it
“on a usual or periodic basis;” and, in periods of absence,
“intend[s] to return to the house within a usual or periodic
time,” the house is a dwelling house under Code § 18.2-89.
Giles v. Commonwealth, 51 Va. App. 449, 458-59, 658 S.E.2d 703,
708 (2008). The Court of Appeals concluded that a person may
have multiple dwelling houses so long as each house has “humans
sleep in it and engage in other functions typically associated
with habitation.” Id. at 458-59, 658 S.E.2d at 707-08. We
granted Giles this appeal.
DISCUSSION
Giles argues that the Court of Appeals erred in approving
the circuit court’s ruling that the house satisfied the
dwelling house requirement of Code § 18.2-89. Giles contends
that in order to be a dwelling house, a house must be regularly
used for sleeping and other “dwelling-related” activities, such
as preparing meals and bathing. According to Giles, the
character and content of a structure do not determine whether
it is a dwelling; rather, the relevant inquiry is whether the
structure is in fact used as a dwelling. Giles argues that the
analysis must focus on what takes place in the house as opposed
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to what is kept in the house and that the issue whether a
structure is a dwelling must not be subject to case-by-case
factual analysis.
Giles asserts Thornton’s testimony was insufficient to
prove the house was a dwelling. Giles points out that Thornton
testified that he had visited the house twice between June 29,
2005 and September 17, 2005, when he stayed the entire weekend.
However, Thornton did not testify that anyone slept in the
house, nor that he prepared food, bathed, or engaged in other
normal household activity. Giles also contends there is
nothing in Thornton’s testimony that shows he intended to
return to the house.
In response, the Commonwealth asserts that whether a house
is used for sleeping is just one among a number of factors a
court must consider when determining whether the house is a
dwelling house as contemplated by Code § 18.2-89. The
Commonwealth contends the court must consider other indicia of
habitation, as the circuit court did in this case when it noted
the presence of furnishings, food, and operating electricity
and water at the house. The Commonwealth argues that from
these facts the circuit court properly found that Thornton
intended to return to the house. According to the
Commonwealth, consideration of the “regular use” of a structure
pertains not to the time period in which the structure is used
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as a habitation, but simply to its use as a habitation as
opposed to other uses. The Commonwealth further asserts that
“activities of day-to-day life” must take place in the
structure for it to be a dwelling house, but need not occur on
a day-to-day basis. The Commonwealth argues that the contents
of a structure serve as indicia of habitation. For these
reasons, the Commonwealth argues that the Court of Appeals
applied the proper analysis and did not err in holding that the
house was a dwelling house.
Code § 18.2-89 provides, in pertinent part, “[i]f any
person break and enter the dwelling house of another in the
nighttime with intent to commit a felony or any larceny
therein, he shall be guilty of burglary.” The limited issue of
statutory interpretation raised in this appeal is the meaning
of “dwelling house.” A matter of statutory interpretation such
as this presents a pure question of law, which we review de
novo. Young v. Commonwealth, 273 Va. 528, 533, 643 S.E.2d 491,
493 (2007); Budd v. Punyanitya, 273 Va. 583, 591, 643 S.E.2d
180, 184 (2007); Ainslie v. Inman, 265 Va. 347, 352, 577 S.E.2d
246, 248 (2003).
The Court of Appeals framed the issue before it as
follows: “The issue we consider here . . . is the extent to
which a person must inhabit a house for it to constitute a
‘dwelling house’ under the statute,” Giles, 51 Va. App. at
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451, 658 S.E.2d at 704; and “the issue is the extent to which a
house must be ‘regularly use[d]’ to qualify as a ‘dwelling
house.’ ” Id. at 455, 658 S.E.2d at 706. By employing the
phrase “extent to which” a house must be inhabited or regularly
used, the Court of Appeals suggested the temporal aspect of
habitation is a significant factor in the analysis whether a
structure is a dwelling house. Although we agree with the
Court of Appeals’ conclusion that the house was a dwelling
house as contemplated by Code § 18.2-89, we disagree with the
Court of Appeals’ analysis. Esteban v. Commonwealth, 266 Va.
605, 610, 587 S.E.2d 523, 526 (2003) (Supreme Court may affirm
Court of Appeals’ judgment when the Court of Appeals reaches
the correct result based on a different or an incorrect
reason). The focal point of our analysis is the character or
use of the place being inhabited.
“[A]t common law, [burglary was] primarily an offense
against the security of the habitation, and that is still the
general conception of it.” Yeatts v. Commonwealth, 242 Va.
121, 140, 410 S.E.2d 254, 266 (1991) (quoting Compton v.
Commonwealth, 190 Va. 48, 55, 55 S.E.2d 446, 449 (1949)). We
have previously described a person’s “home” or “habitation” as
being a place “usually occupied for the purposes of the
dwelling.” Bare v. Commonwealth, 122 Va. 783, 795, 94 S.E.
168, 172 (1917). The focus has been and remains on the manner
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in which the place is used. At oral argument, Giles
acknowledged that, historically, “[t]he emphasis [has been] on
how the structure was used.” Moreover, Giles recognized that,
in the present case, the circuit court must consider “what
[Thornton’s] primary purpose for [the house] was,” “what he was
using it for . . . whether he was using it for storage” or for
some other purpose. We agree.
Giles’ argument fails, however, when he asserts the
Commonwealth must prove the regularity of use in a temporal
sense to establish that a structure constitutes a dwelling
house. There is no such frequency requirement. A structure
does not have to be physically inhabited every day or week or
month to be a dwelling house. “Burglary laws are based
primarily upon a recognition of the dangers to personal safety
created by the usual burglary situation -- the danger that the
intruder will harm the occupants in attempting to perpetrate
the intended crime or to escape and the danger that the
occupants will in anger or panic react violently to the
invasion, thereby inciting more violence.” Yeatts, 242 Va. at
140, 410 S.E.2d at 266 (quoting Rash v. Commonwealth, 9 Va.
App. 22, 25, 383 S.E.2d 749, 751 (1989)). The danger to
personal safety that is sought to be protected does not
dissipate simply because the structure is not occupied on a
regular basis. The danger continues irrespective of frequency
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of habitation so long as when the structure is used, it is used
for the purpose of habitation. A dwelling house does not lose
its character as such simply because a person is absent for
either a regular or irregular period of time.
This house is analogous to a vacation home. Although this
is an issue of first impression in Virginia, other states have
long held that vacation homes are dwelling houses even when
unoccupied at the time of the break in. E.g., Gillum v. State,
468 So.2d 856, 859 (Miss. 1985) (a weekend house, which was
usually occupied every other weekend and contained food,
clothing, and other necessities, was a dwelling and “[t]he
seasonal or intermittent use of a residence . . . does not
prevent it from becoming a dwelling”); State v. Albert, 426
A.2d 1370, 1374 (Me. 1981) (a summer cottage that was adapted
for overnight accommodation was a dwelling even in the winter
when it was uninhabited).
We hold that a house is a dwelling house pursuant to Code
§ 18.2-89 when the house is used for habitation, including
periodic habitation. Periodic habitation does not require that
the house be used at regular intervals. Rather, periodic
habitation requires that when the house is used, it is used for
the purpose of habitation. Thus, a dwelling house is a house
that one uses for habitation, as opposed to another purpose.
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Although the Commonwealth is not required to prove a
structure is inhabited at regular intervals, it must provide
sufficient evidence that the structure is used as a habitation
to satisfy the “dwelling house” requirement of Code § 18.2-89.
The circuit court must analyze the evidence presented to
ascertain if there are sufficient indicia of habitation and
actual use as a place of habitation for the structure to be
deemed a dwelling house.
In applying this analysis, the Commonwealth satisfied its
burden in this case. Upon review, we consider the evidence in
the light most favorable to the Commonwealth, the prevailing
party below, and we accord the Commonwealth the benefit of all
reasonable inferences deducible from the evidence. Britt v.
Commonwealth, 276 Va. 569, 573, 667 S.E.2d 763, 765 (2008); Jay
v. Commonwealth, 275 Va. 510, 524, 659 S.E.2d 311, 319 (2008);
Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586
(2008). The house contained furniture in three bedrooms, a
living room, family room, and kitchen, as well as quilts,
blankets, sheets, towels, and bathroom supplies. The house had
active electricity and water services, and the kitchen was
stocked with food in the pantry, cabinets, and refrigerator.
Thornton had sleeping quarters in the house, and spent at least
one night there over a weekend ten days prior to the break in on
September 28, 2005. Thornton had also stayed in the house at
least once or twice per month in the three months following his
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mother’s death on June 28, 2005. It is reasonable to infer
from the evidence that Thornton slept in the house and prepared
food, bathed, and engaged in other activities typically
associated with habitation. The contents of the house and
evidence of Thornton’s behavior in relation to the house are
probative of whether it was used periodically for the purpose
of habitation.
CONCLUSION
The evidence presented by the Commonwealth was sufficient
to prove Thornton’s habitation of the house. The Court of
Appeals did not err in affirming the circuit court’s ruling
that the house satisfied the dwelling house requirement of Code
§ 18.2-89. Thus, Giles was properly convicted of burglary. We
will therefore affirm the judgment of the Court of Appeals.
Affirmed.
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