Finney v. Commonwealth

Present: All the Justices

THERON ANTHONY FINNEY
OPINION BY
v. Record No. 080440 JUSTICE LAWRENCE L. KOONTZ, JR.
January 16, 2009
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

Theron Anthony Finney was convicted of breaking and

entering the storage shed permanently attached to the real

property of Dennis Garber with intent to commit larceny, in

violation of Code § 18.2-91, after a bench trial in the

Circuit Court of the City of Richmond. ∗ In an unpublished

order by one judge of the Court of Appeals, the court denied

Finney’s petition for appeal, holding the evidence sufficient

to support the circuit court’s conclusion that Finney

unlawfully broke and entered Garber’s property with intent to

commit larceny. Finney v. Commonwealth, Record No. 0518-07-2

(October 25, 2007). Subsequent to a request for a three-judge

∗
Finney was also convicted of grand larceny, Code § 18.2-
95, arising from the same events. We initially refused an
assignment of error in Finney’s petition for appeal regarding
that conviction. Finney v. Commonwealth, Record No. 080440
(May 30, 2008). We subsequently granted his petition for
rehearing after the issues addressed in this appeal had been
briefed and argued. Finney v. Commonwealth, Record No. 080440
(Sept. 11, 2008). The parties filed supplemental briefs, and
we docketed the case for additional argument limited to the
grand larceny conviction. By order entered concurrently with
this opinion, we will affirm Finney’s conviction for grand
larceny.
review, the Court of Appeals again denied Finney’s petition

for appeal. Finney v. Commonwealth, Record No. 0518-07-2

(February 7, 2008). We awarded Finney this appeal. The

dispositive issue we consider is the sufficiency of the

evidence to establish that Finney committed a “breaking,” as

required by the provisions of Code §§ 18.2-90 and 18.2-91.

BACKGROUND

The following pertinent facts are not disputed. On the

morning of July 21, 2006, David S. Bugg, a neighbor of Dennis

Garber, saw Finney walking on a side street by Garber’s home

on Stockton Street in Richmond. Bugg noticed that Finney was

carrying “an arm full of items.” The items that Finney

carried included an extension cord, a saw, and a drill. As

Finney passed Bugg’s residence, Finney asked Bugg if he wanted

to buy any of the tools. Bugg declined and subsequently asked

his wife to call Garber by telephone. Beginning in December

2005, Garber had been in the process of moving to another home

in Powhatan. Garber frequently went back and forth between

his home on Stockton Street and his new home in Powhatan.

On July 22, 2006, in response to the telephone call from

Bugg’s wife, Garber went to his property on Stockton Street.

Garber found that an opening in the backyard fence had been

created by the forced removal of “four or five upright . . .

vertical boards.” He also found that the doorjamb on his

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storage shed had been “ripped apart” and that one of the

windows of his garage had been opened. The shed and the

garage had once been filled with various hand tools, tool

boxes, landscaping equipment, and several large power tools

including a miter saw, a power washer, an electric generator,

a belt sander, and a self-propelled lawn mower. The shed and

garage were mostly bare. Garber had last visited his property

seven or eight days prior to Mrs. Bugg’s telephone call, at

which time all his tools were present, the lock on his shed

was in place, and the fence surrounding his property was

intact.

After inspecting his property, Garber went to Bugg’s home

and told Bugg that someone had entered the storage shed on his

property. Bugg informed Garber that he thought possibly

Finney was the person who had entered the shed. The two men

decided to stay and watch Garber’s property in case Finney

returned. Later that day, the two men observed Finney’s

mother drive her truck by Garber’s property. Finney was a

passenger in the truck. Finney’s mother drove the truck

around the block twice before stopping on the street on the

side of Garber’s property. Finney exited the truck and

subsequently entered onto Garber’s property by passing through

the broken opening in the backyard fence.

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 Bugg and Garber went to confront Finney who then had

entered the shed. As Garber approached the shed, he saw

Finney “rifling through” the various items still inside the

shed. When Finney saw Garber approach him, he hurriedly

retreated and entered his mother’s truck. Finney shouted to

Garber that he did not steal any of Garber’s property but that

he knew who did. After Finney and his mother departed, Garber

notified the police.

A police officer from the Richmond City Police Department

responded to the call, inspected Garber’s property, and

observed a broken lock on the storage shed. When Finney was

arrested by the police officer later that day, Finney told the

police officer that “I didn’t take anything, but I know who

did. I can get the stuff back.” Finney also stated that he

had been on Garber’s property looking for a friend named

“Red.”

DISCUSSION

Our resolution of the issue presented in this appeal is

guided by well-established principles of appellate review and

prior decisions of this Court. On appeal, the facts are

viewed in the light most favorable to the prevailing party at

trial. Porter v. Commonwealth, 276 Va. 203, 215-16, 661

S.E.2d 415, 419 (2008); Juniper v. Commonwealth, 271 Va. 362,

376, 626 S.E.2d 383, 393 (2006). However, this Court will

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reverse a judgment of the trial court that is plainly wrong or

without evidence to support it. Jay v. Commonwealth, 275 Va.

510, 524, 659 S.E.2d 311, 319 (2008); Viney v. Commonwealth,

269 Va. 296, 299, 609 S.E.2d 26, 28 (2005). The Commonwealth

has the burden of proving beyond a reasonable doubt that the

defendant is guilty of the charged crime. See Baldwin v.

Commonwealth, 274 Va. 276, 280, 645 S.E.2d 433, 435 (2007);

Rogers v. Commonwealth, 242 Va. 307, 317, 410 S.E.2d 621, 627

(1991). “ ‘Suspicion of guilt, however strong, or even a

probability of guilt, is insufficient to support a

conviction.’ ” Rogers, 242 Va. at 317, 410 S.E.2d at 627

(quoting Cheng v. Commonwealth, 240 Va. 26, 42, 393 S.E.2d

599, 608 (1990)).

Pursuant to Code § 18.2-90, “[i]f any person in the

nighttime enters without breaking . . . or at any time breaks

and enters . . . any building permanently affixed to realty,

. . . with intent to commit murder, rape, robbery or arson

. . . he shall be deemed guilty of statutory burglary, which

offense shall be a Class 3 felony.” Pursuant to Code § 18.2-

91, “[i]f any person commits any of the acts mentioned in

§ 18.2-90 with intent to commit larceny, or any felony other

than murder, rape, robbery or arson . . ., he shall [also] be

guilty of statutory burglary,” but may be subject to a lesser

penalty for that crime. Thus, as pertinent to this appeal, a

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person commits statutory burglary in violation of these

statutes when a person either (1) enters in the nighttime or

(2) enters after breaking at any time, day or night.

The Commonwealth did not allege that Finney entered

Garber’s shed during the nighttime, and there is no dispute

that he was only seen in the shed or its vicinity during the

daytime. Thus, the issue is whether he committed a breaking

in order to enter the shed on the occasion that he was found

there or at some other time. A breaking for purposes of

statutory burglary may be either actual or constructive.

Johnson v. Commonwealth, 221 Va. 872, 876, 275 S.E.2d 592, 594

(1981). In the present case we are not concerned with an

issue of constructive breaking, which requires a showing that

the unlawful entrance was accomplished by threat of violence,

by fraud, or by conspiracy. Id. “Actual breaking involves

the application of some force, slight though it may be,

whereby the entrance is [achieved]. Merely pushing open a

door, turning the key, lifting the latch, or resort to other

slight physical force is sufficient to constitute this element

of [burglary],” so long as those acts “resulted in an entrance

contrary to the will of the occupier of the [property].” Id.

at 876, 275 S.E.2d at 594-95 (quoting Davis v. Commonwealth,

132 Va. 521, 523, 110 S.E. 356, 357 (1922)). In Johnson, we

held that enlarging the opening of a partially open door

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constituted a breaking where the door was already open one

foot, and the defendant had to push it open further to gain

entrance into the property. Id. at 875-76, 275 S.E.2d at 594-

95. Similarly, the Court of Appeals in Phoung v.

Commonwealth, 15 Va. App. 457, 460-61, 424 S.E.2d 712, 714

(1992), held that the element of breaking was established

where the homeowner left a sliding glass door open slightly to

allow dogs to enter the home, but the defendant opened the

door further to effectuate his own entry. Therefore, in order

to establish the element of breaking in the present case, the

Commonwealth was required to prove that Finney applied some

physical force, however slight, to gain entry to Garber’s

shed.

When Garber inspected his property on July 22, 2006, but

before Finney was seen passing through the opening in Garber’s

fence, the opening in the fence had already been created.

Likewise, the doorjamb on Garber’s shed had been “ripped

apart” before Finney was seen in the shed. The record

contains no direct evidence that Finney would have been

required to apply any physical force upon the fence or the

lock and broken doorway when he entered the shed on July 22,

2006. Nor is there any direct evidence that Finney entered

the shed on the previous day in order to obtain the tools he

was seen carrying away, or if he did enter the shed, that he

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was required to use any physical force to do so. Rather, at

trial, the Commonwealth relied upon circumstantial evidence to

prove that Finney committed a breaking when entering the shed

at some point.

We have held that “circumstantial evidence is competent

and is entitled to as much weight as direct evidence[,]

provided that the circumstantial evidence is sufficiently

convincing to exclude every reasonable hypothesis except that

of guilt.” Dowden v. Commonwealth, 260 Va. 459, 468, 536

S.E.2d 437, 441 (2000). “Circumstantial evidence is not

viewed in isolation. While no single piece of evidence may be

sufficient, the combined force of many concurrent and related

circumstances, each insufficient in itself, may lead a

reasonable mind irresistibly to a conclusion.” Muhammad v.

Commonwealth, 269 Va. 451, 479, 619 S.E.2d 16, 32 (2005),

cert. denied, 547 U.S. 1136 (2006) (citation omitted).

Finney’s presence within the shed does not prove that he

forced the door to the shed from its hinges. “The law is

settled that mere presence is not sufficient.” Hall v.

Commonwealth, 225 Va. 533, 536, 303 S.E.2d 903, 904 (1983);

see also Johns v. Commonwealth, 10 Va. App. 283, 288, 392

S.E.2d 487, 490 (1990) (recognizing that, where a defendant’s

entrance into a building is contrary to the will of the

occupier, the requirement that a person breaks and enters with

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the intent to commit robbery is not satisfied merely by

evidence that the defendant entered the premises with the

intent to commit robbery).

Moreover, under the circumstances of this particular

case, Finney’s possession of some of the tools stolen from

Garber’s shed, without more, does not prove that Finney

obtained the tools by breaking into the shed. We have

previously held that:

The Commonwealth can establish a prima facie case
that a defendant broke and entered by (1) proving
that goods have been stolen from a house into which
someone has broken and entered; (2) justifying the
inference that both offenses were committed at the
same time, by the same person, as a part of a
criminal enterprise; and (3) proving that these
goods were found soon thereafter in the possession
of the defendant.

Guynn v. Commonwealth, 220 Va. 478, 480, 259 S.E.2d 822, 823-

24 (1979). In this case, the circumstantial evidence does not

justify the inference that the breaking of the shed door, the

entering of the shed, and the larceny of Garber’s tools in the

shed were committed at the same time and by the same person.

There is no dispute that the evidence established that Garber

had last visited his property seven or eight days prior to

July 22, 2006. At that time, the shed door was intact. The

breaking of the shed door could have occurred at any time

during the seven or eight days that Garber was away from his

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property. Additionally, Garber testified that he believed it

would have taken more than one person to remove all the

missing tools. All of these factors combined elicit the

reasonable hypothesis that another individual or individuals

may have committed the breaking and that Finney subsequently

entered the shed without the necessity of a breaking to do so.

Accordingly, while the evidence creates a strong suspicion of

Finney’s guilt, it does not establish beyond a reasonable

doubt that he was required to use any physical force to enter

Garber’s shed and, thus, committed a breaking as required by

Code § 18.2-91.

CONCLUSION

For these reasons, we hold that the Court of Appeals

erred in holding the evidence was sufficient to find Finney

guilty of statutory burglary and in upholding the judgment of

the circuit court in that regard. Accordingly, we will

reverse the judgment of the Court of Appeals, vacate Finney’s

conviction, and dismiss the indictment against him.

Reversed and dismissed.

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