COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Bumgardner
Argued at Richmond, Virginia
HENRY LEVI TURNER
OPINION BY
v. Record No. 2097-99-2 JUDGE RICHARD S. BRAY
AUGUST 1, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF BUCKINGHAM COUNTY
Richard S. Blanton, Judge
Michael J. Brickhill (Michael J. Brickhill,
P.C., on brief), for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Henry Levi Turner (defendant) was convicted in a bench trial
on indictments alleging numerous offenses, including "break[ing]
and enter[ing] in the daytime the residence" of his estranged
wife, Florine Denise Turner (wife), "with the intent to commit
murder while armed with a deadly weapon," and a like entry "in the
nighttime . . . with the intent to commit assault and battery,"
violations of Code §§ 18.2-90 and –91, respectively. On appeal,
defendant contends that he cannot be guilty of such offenses
because the subject residence was jointly owned by defendant and
his wife. He further argues that the court erroneously permitted
wife to testify in violation of the marital privilege afforded by
Code § 19.2-271.2. Finding no error, we affirm both convictions.
I.
The substantive evidence is uncontroverted. Defendant and
wife separated in early 1997, with wife and the infant daughter
born to the marriage remaining in the former marital residence, a
mobile home, and defendant "staying" elsewhere, despite joint
ownership of the trailer with wife. On December 15, 1997, the
Buckingham County Juvenile and Domestic Relations District Court
(J&D court) convicted defendant of an assault and battery upon
wife and, as a condition of suspending the attendant sentence,
ordered "no contact or violence toward her" by defendant. Wife
subsequently "switched the locks" on the trailer and shared keys
only with her daughter and mother.
During the evening hours of February 21, 1998, defendant
telephoned wife "five or ten times," threatening "to kill [her]."
Following the final call, "around 12:30 a.m.," wife and child
retired for the evening but were soon awakened by the sounds of
"pounding" on the "bedroom window" and defendant shouting, "open
the m. . .f. . . door or I'll kick it open." Wife immediately
attempted to telephone her mother, a resident of a nearby trailer,
but the "line was dead." Meanwhile, defendant "kicked the door
in" and entered the kitchen area of the trailer. Fearful, wife
"ran by him," with the child "running behind," and escaped to her
mother's home.
On February 23, 1998, defendant approached wife at her place
of employment, "walked into the lobby" and declared, "you don't
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believe me; I'm going to kill you, and . . . left." At the
conclusion of the workday, wife returned to the trailer,
accompanied by an acquaintance, Clarence Taylor. When the two
entered the residence, defendant, hidden inside and armed with a
shotgun, fired the weapon at Taylor and wife, injuring both.
Although wounded, Taylor escaped, but defendant "grabbed" wife,
threatening, "I'm going to kill you," and held her captive for
"four or five hours" before surrendering to police.
Relying upon the "marital privilege" established by Code
§ 19.2-271.2, defendant unsuccessfully objected at trial to wife's
testimony relating to the events of February 21, 1998. Later, at
the conclusion of the Commonwealth's case-in-chief and, again,
following the presentation of all evidence, defendant moved the
court to strike, arguing that, as "owner of this residence"
jointly with wife, he could not be convicted of breaking and
entering his "own property." Defendant pursues both theories on
appeal.
II.
Code § 18.2-89 provides, inter alia, that, "[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 . . . ," "an offense identical to common
law burglary, save that the element of intent is expanded to
include intent to commit a larceny." Rash v. Commonwealth, 9
Va. App. 22, 24, 383 S.E.2d 749, 750 (1989). The dual elements,
"dwelling house" and "of another," "were essential because
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common-law burglary found its theoretical basis in the protection
of man's right of habitation," 2 Wayne R. LaFave, Substantive
Criminal Law § 8.13(c) (1986), an embodiment of "the ancient
notion that a man's home was his castle and . . . he had the
right to feel safe therein." Rash, 9 Va. App. at 25, 383 S.E.2d
at 751; see Clark v. Commonwealth, 66 Va. (25 Gratt.) 908 (1874).
Thus, "the term 'dwelling house' in Code § 18.2-89 means a place
which human beings regularly use for sleeping[,]" and the crime
was, "'at common law, primarily an offense against the security
of [another's] habitation, and that is still the general
conception of it.'" Rash, 9 Va. App. at 26, 25, 383 S.E.2d at
751 (citation omitted).
Code §§ 18.2-90 and 18.2-91 1 expand traditional burglary to
include entry without breaking in the nighttime or by breaking in
1
Code § 18.2-90 provides, in pertinent part:
If any person in the nighttime enters
without breaking or in the daytime breaks
and enters or enters and conceals himself in
a dwelling house . . . with intent to commit
murder, rape, robbery or arson in violation
of §§ 18.2-77, 18.2-79 or § 18.2-80, he
shall be deemed guilty of statutory
burglary, which offense shall be a Class 3
felony. However, if such person was armed
with a deadly weapon at the time of such
entry, he shall be guilty of a Class 2
felony.
(Emphasis added.)
Code § 18.2-91, provides, inter alia,
If any person commits any of the acts
mentioned in § 18.2-90 with intent to . . .
commit assault and battery, he shall be
guilty of statutory burglary, punishable by
confinement in a state correctional facility
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the daytime of any dwelling house and "any automobile, truck or
trailer, if such . . . is used as a dwelling or place of human
habitation, with intent to commit murder . . . , " Code § 18.2-
90, "or . . . assault and battery . . . [.]" Code § 18.2-91; see
Johnson v. Commonwealth, 18 Va. App. 441, 445, 444 S.E.2d 559,
561-62 (1994). 2 In enacting Code §§ 18.2-90 and –91, the
legislature, therefore, modified the common law to safeguard both
conventional dwelling houses and other specified structures,
"used as a dwelling or place of human habitation," from unlawful
invasion. Allard v. Commonwealth, 24 Va. App. 57, 64, 480 S.E.2d
139, 142 (1997); see Graybeal v. Commonwealth, 228 Va. 736, 739,
324 S.E.2d 698, 699-700 (1985).
Defendant contends that the right of habitation protected by
both the common law and related burglary statutes is subordinate
to title or ownership interests. He asserts that
the crime first offends the security of the property owner and,
therefore, reasons that "a person cannot break and enter a
structure in which he has a proprietary interest." Defendant's
argument, however, discounts the sanctity of habitation, upending
the gravamen of the offense, a view that has been rejected by
jurisdictions throughout the country.
for not less than one or more than twenty
years or, in the discretion of the jury or
the court trying the case without a jury, be
confined in jail for a period not exceeding
twelve months or fined not more than $2,500,
either or both.
2
Both Code §§ 18.2-90 and –91 also omit the qualifying
language of Code § 18.2-89, "of another," following "dwelling
house," a circumstance irrelevant to the instant facts.
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In Commonwealth v. Majeed, 694 A.2d 336 (Pa. 1997), the
Supreme Court of Pennsylvania addressed a similar argument on
review of a burglary conviction resulting from Majeed's forcible
entry into a home owned exclusively by him, although occupied
solely by his estranged wife and children. The couple had been
separated for approximately one year, and a court order
prohibited Majeed's "presen[ce] on the premises." Id. at 337.
In affirming the conviction, the court concluded that "an owner
of property may relinquish his or her license or privilege to
enter" and, therefore, "legal ownership is not synonymous with
license or privilege." Id. at 338. Finding that "Mrs. Majeed
and her children, alone, occupied the home," the court reasoned
"that [Majeed's] license or privilege to enter the premises had
expired." Id.
A similar rationale persuaded the Court of Appeals of Ohio,
in State v. Herrin, 453 N.E.2d 1104 (Ohio Ct. App. 1982), to
affirm Herrin's burglary conviction for "blast[ing] his way into
the side door" of a home jointly owned with his estranged wife.
Id. at 1105. At the time of the offense, defendant was "living
elsewhere," wife had "changed the door locks so [Herrin] was
unable to get in" and "was in control and had custody of the
premises." Id. Under such circumstances, "[w]hen [Herrin]
forcibly entered the residence without his wife's permission,
. . . he committed . . . a burglary." Id. at 1006; see also
State v. Singletary, 472 S.E.2d 895, 899 (N.C. 1996) (estranged
husband has no marital or proprietary right to re-enter former
family residence exclusively occupied by wife); Calhoun v. State,
820 P.2d 819, 821-22 (Okla. Crim. App. 1991) (lawful possession
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of property, not ownership, is dispositive issue in burglary
prosecution); State v. Harold, 325 S.E.2d 219, 222 (N.C. 1985)
(prohibition of burglary protects habitation, not ownership);
Knox v. Commonwealth, 225 Va. 504, 507, 304 S.E.2d 4, 6 (1983)
(husband's right to consortium with wife is no defense to
invasion of her possessory right in property).
Here, wife and daughter enjoyed sole occupancy of the
trailer home following the separation of defendant and wife a
year prior to the offenses, with defendant continuously residing
elsewhere. As a result of subsequent criminal conduct against
wife, defendant had been ordered by the J&D court to have no
contact with her, a restriction that clearly precluded his
habitation of the trailer. Thereafter, wife changed the locks in
an effort to further keep husband from the premises. Defendant's
return, which resulted in the instant prosecutions, was for
criminal purposes, and was attended by violence and forceful
entry into the residence. Under such circumstances, defendant's
proprietary interest was relegated to wife's superior possessory
interest and right to exclusive habitation. Thus, defendant's
acts in breaking and entering the home, accompanied by the
requisite unlawful intent, offended wife's right of habitation
and constituted burglary in violation of Code §§ 18.2-90 and -91,
notwithstanding his joint ownership of the property.
III.
At trial, defendant relied upon former Code § 19.2-271.2 to
support his claim of marital privilege to preclude wife's
testimony relative to the incident of February 21, 1998.
However, the pertinent provision of former Code § 19.2-271.2,
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"neither [husband or wife] shall be compelled, nor, without the
consent of the other, allowed, to be called as a witness against
the other, except" in those instances specified by statute, was
amended by the General Assembly in 1996 to delete the language,
"nor, without the consent of the other, allowed." Thus, the
legislature "eliminated the defendant spouse's privilege to bar
the witness spouse from testifying against the defendant[,]"
while preserving in the "witness spouse . . . the privilege" to
avoid compelled testimony, subject to certain statutory
exceptions. Ronald J. Bacigal, Virginia Criminal Procedure
§ 17-12 (4th ed. 1999); see Code § 19.2-271.2. Here, wife
willingly testified, leaving defendant's argument without merit.
Thus, on the facts before us in this appeal, we find
defendant's conduct violative of both Code §§ 18.2-90 and –91
and, further, that wife was properly permitted to present related
evidence against him. Accordingly, we affirm the convictions.
Affirmed.
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