Allard v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Charlottesville, Virginia

JAMES VIRGIL ALLARD
OPINION BY
v. Record No. 2846-95-3 JUDGE ROSEMARIE ANNUNZIATA
JANUARY 28, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF AMHERST COUNTY
J. Michael Gamble, Judge
Stephen R. Eubank (J. Thompson Shrader;
J. Thompson Shrader & Associates, on brief),
for appellant.

John K. Byrum, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Following a jury trial, appellant, James Virgil Allard, was

convicted of statutory burglary in violation of Code § 18.2-91.

Pursuant to the jury's recommendation, the trial court sentenced

appellant to ten years incarceration. The court further

sentenced appellant to an additional one-year term, which it

suspended, conditioned upon appellant's successful completion of

a period of post-release supervision. Appellant contends (1) the

court erred in denying his motion to strike; (2) the court

improperly instructed the jury; and (3) the court abused its

discretion in imposing a greater sentence than the jury

recommended. Finding no error, we affirm.

I. MOTION TO STRIKE

Appellant argues that the trial court erred in denying his

motion to strike because: (1) the evidence was insufficient to
support his conviction; (2) the Commonwealth failed to prove that

the structure he was charged with burglarizing was habitable; and

(3) the structure he was charged with burglarizing could not be

the subject of a burglary within the meaning of the statute. We

disagree with each of these contentions.

On April 20, 1995 at 9:44 p.m., Sergeant John Dixon of the

Amherst County Sheriff's Department was dispatched to the area of

Pleasant Valley Elementary School (the school) to investigate a

possible break-in in progress. Harold Thomas Lloyd, a local

resident, had seen three men exit a car and proceed into the

bushes nearby. Lloyd was concerned that the men intended to

break into a neighbor's house, so he asked his brother to call

the police. From his vehicle, Lloyd followed the car as it

circled the area until Dixon arrived. Lloyd was unable to

identify any of the men or the occupants of the car.
Upon his arrival, Dixon identified the car Lloyd had been

following as matching the dispatcher's description of the suspect

car. Dixon stopped the car and found two women inside.

Meanwhile, another officer arrived at the school and discovered

that a window to a classroom in the rear of the building had been

broken. Hearing the report of the apparent break-in over his

radio, Dixon detained the women.

Dixon summoned a tracking dog and phoned the school's

principal, Ronald Compton. Compton arrived at the scene and

informed Dixon that he had seen two men walking in front of the

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school. Dixon left the school area and observed two men,

appellant and Eddie Foster, walking from the direction of the

school. Dixon placed the two men in custody.

At that time, E.W. Viar, a canine handler for the Lynchburg

Sheriff's Office, arrived with a tracking dog. Dixon instructed

Viar to take the dog to the school and see if the dog could track

the two men from the school area. Within fifteen minutes, the

dog led Viar back to the suspects and indicated that one or both

of the men had made their way to that point from the school.

Viar could not determine whether the dog had tracked one of the

men or both, and, if the dog had tracked one of the men, Viar

could not determine which, without allowing the dog to bite the

one it had tracked. Viar decided that allowing the dog to bite

the men was not a good idea.
Four days after the break-in, Compton reported that a VCR

was missing from the classroom. The following day, Dixon found

the VCR in the bushes approximately seventy-five yards from the

point at which he had detained appellant and Foster.

James Roberts was also charged with breaking into the

school. Roberts, a convicted felon, testified on behalf of the

Commonwealth as part of a plea bargain by which Roberts would

receive a three-year suspended sentence and a fine. Roberts

testified that he, appellant, Foster, and the two women were

riding in the car when Foster suggested "going into a school."

Roberts, appellant and Foster exited the car, walked through a

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field and arrived at the back of the school, approximately 100

yards from the car. Foster then stated that he was "going to get

him a couple of VCRs." Foster broke the window and entered the

school. While Foster was in the school, a car approached and

Roberts yelled, "Here comes a car." Appellant then stated

either, "Here comes a car" or "There go [sic] a car." Foster

then jumped out of the window, and the three men ran. Roberts

did not see Foster carrying a VCR as he exited the school.
A. SUFFICIENCY OF EVIDENCE

In the case of a felony, every principal in the second

degree may be indicted, tried, convicted and punished as if a

principal in the first degree. See Code § 18.2-18. To convict

based on this theory, the Commonwealth must prove the defendant

was present at the scene and "'share[d] the criminal intent of

the party who actually committed the [crime] or [was] guilty of

some overt act in furtherance thereof.'" Rollston v.

Commonwealth, 11 Va. App. 535, 540, 399 S.E.2d 823, 826 (1991)

(quoting Augustine v. Commonwealth, 226 Va. 120, 124, 306 S.E.2d
886, 888-89 (1983)). A defendant may be convicted as a principal

in the second degree if he or she is present, "'keeping watch or

guard at some convenient distance.'" Id. at 539, 399 S.E.2d at

825 (quoting Brown v. Commonwealth, 130 Va. 733, 736, 107 S.E.

809, 810 (1921)). "'[P]roof that a person is present at the

commission of a crime without disapproving or opposing it, is

evidence from which, in connection with other circumstances,

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. . . the jury may infer that he assented thereto . . . .'"

Pugliese v. Commonwealth, 16 Va. App. 82, 93-94, 428 S.E.2d 16,

25 (1993) (quoting Foster v. Commonwealth, 179 Va. 96, 99-100, 18

S.E.2d 314, 316 (1942)).

On appeal, we consider the evidence and all inferences

fairly deducible therefrom in the light most favorable to the

Commonwealth. E.g., Derr v. Commonwealth, 242 Va. 413, 424, 410

S.E.2d 662, 668 (1991). Doing so, we find Roberts' testimony

alone sufficient to support appellant's conviction as a principal

in the second degree to the statutory burglary. See Yates v.

Commonwealth, 4 Va. App. 140, 143, 355 S.E.2d 14, 15 (1987)

(quoting Johnson v. Commonwealth, 224 Va. 525, 527, 298 S.E.2d

99, 101 (1982)) ("'[a]n accused may be convicted upon the

uncorroborated testimony of an accomplice'").

Roberts testified that appellant was present when Foster

suggested they break into a school. Upon arriving at the school,

appellant exited the car with Foster and Roberts and accompanied

them to the back of the school. Upon reaching the back of the

school, Foster declared that he was going to "get him some VCRs."

As Foster broke the window and entered the school, appellant

stood by and did not disapprove. Appellant waited while Foster

was inside and, along with Roberts, informed Foster of an

approaching vehicle.

Moreover, Roberts' testimony was corroborated. Lloyd

witnessed the arrival of three men at the scene; Viar and the

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police dog tracked the route of appellant and Foster from the

school to a point near which a VCR belonging to the school was

later found. The jury could reasonably infer from this evidence

that appellant was present at the scene of the crime.

B. HABITABILITY ELEMENT

Although the common law required that the invaded structure

be the dwelling house of another, the legislature has expanded

the subject of burglary to include other structures. See Crews
v. Commonwealth, 3 Va. App. 531, 535, 352 S.E.2d 1, 3 (1987).

The statute addresses dwelling houses as well as, inter alia, any

office, storehouse, warehouse, banking house, or "other house,"

or any automobile, truck or trailer, if such automobile truck or

trailer is used as a dwelling or place of human habitation. See

Code §§ 18.2-90, 18.2-91. With respect to structures other than

the dwelling house of another, the legislature specifically chose

to impose the habitability element only for automobiles, trucks

or trailers. Accordingly, the Commonwealth was not required to

prove the school's habitability as an element of the crime in

this case. A contrary reading of the statute would defeat its

purpose to expand the subject of burglary to structures other

than dwelling houses.

C. SCHOOL AS SUBJECT OF BURGLARY
In construing Code § 18.2-90, the
Supreme Court determined that the term
"'other house' . . . placed at the end of a
list of specific references to various
structures[,]" all of which "share the common
element of being improvements affixed to the
ground," manifests legislative intent that

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 such structures be a part of the realty.

Buie v. Commonwealth, 21 Va. App. 526, 529, 465 S.E.2d 596, 597

(1996) (citations omitted). Thus, "in order for a structure to

be the subject of burglary, [it] must be permanently affixed to

the ground so as to become part of the realty at the time of the

unlawful entry." Dalton v. Commonwealth, 14 Va. App. 544, 548,

418 S.E.2d 563, 565 (1992). It must also have walls and a roof

and be enclosed to a degree that presents a significant barrier

to trespass. Id. See also Graybeal v. Commonwealth, 228 Va.

736, 740, 324 S.E.2d 698, 700 (1985); Crews v. Commonwealth, 3

Va. App. 531, 536, 352 S.E.2d 1, 3-4 (1987). A chicken house

fits the definition, see Compton v. Commonwealth, 190 Va. 48, 54,

55 S.E.2d 446, 449 (1949), but a trailer, which is not fixed to

the ground, does not. See Graybeal, 228 Va. at 739-40, 324

S.E.2d at 700.

Here, unrebutted photographic evidence established that the

school is a permanent structure, fully enclosed with walls and a

roof, affixed to the ground and part of the realty. Thus,

contrary to appellant's contention, the school is an "other

house," and the proper subject of burglary, within the meaning of

the statute.

II. JURY INSTRUCTION

The court instructed the jury, inter alia, as follows:
The Commonwealth must prove . . . that
[appellant] was present, aiding and abetting
as a principal in the second degree another
person who . . . entered into . . . the
Pleasant View Elementary School by helping in

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 some way in the commission of the crime.

Appellant argues that the trial court erred in granting this

instruction because it referred specifically to the entry of

"Pleasant View Elementary School" rather than to the entry of a

warehouse, store house, or "other house" as defined in the

statute. Appellant contends the instruction intruded upon the

fact-finding function of the jury to determine whether the school

was an "other house."
We will assume, without deciding, that the court erred as

appellant suggests. See United States v. Gaudin, __ U.S. __, __,

115 S. Ct. 2310, 2320 (1995) ("The Constitution gives a criminal

defendant the right to have a jury determine, beyond a reasonable

doubt, his guilt of every element of the crime with which he is

charged"). However, we find any such error in the present case

to be harmless beyond a reasonable doubt. See Lavinder v.

Commonwealth, 12 Va. App. at 1003, 1005, 407 S.E.2d 910, 911

(1991) (en banc).

As discussed above, an "other house" within the meaning of

Code §§ 18.2-90 and 18.2-91 is a structure that is permanently

affixed to the ground so as to become part of the realty, has

walls and a roof and is enclosed to a degree that presents a

significant barrier to trespass. In the present case, the

evidence concerning the school's physical characteristics points

to the single, inexorable conclusion that the school is an "other

house" within the meaning of the statute. We accordingly find

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beyond a reasonable doubt that the jury's verdict was not

affected by any error of the court in instructing it.

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 III. SENTENCING

The jury found appellant guilty of statutory burglary, and

the matter proceeded to sentencing. The trial court imposed the

entire ten-year sentence recommended by the jury and added a

one-year term, which it suspended, conditioned on appellant's

successful completion of post-release supervision. See Code

§ 19.2-295.2. On appeal, appellant contends that the court

improperly enlarged the sentence set by the jury in this case.

However, appellant failed to raise such an objection during the

proceedings before the trial court. Following the trial court's

imposition of sentence, appellant asked, "Your Honor, could I

appeal this decision." However, he made no specific argument,

objecting to the increased sentence, either before the court at

that time or by subsequent motion. Accordingly, his appellate

contention is procedurally barred. Rule 5A:18.
We find no basis to invoke the ends of justice exception to

this rule, because appellant's argument lacks merit. Appellant

acknowledges that Code § 19.2-295.2 allows the court to increase

a sentence under certain circumstances. However, he contends

that this provision does not apply to trials by jury and cites
Duncan v. Commonwealth 2 Va. App. 342, 343 S.E.2d 392 (1986), for

the proposition that, within Virginia's statutory scheme, the

jury determines the maximum punishment which may be imposed. We

disagree with appellant's contention.

Code § 19.2-295.2 provides, in part, that:
the court may, in addition to any other

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 punishment imposed if such other punishment
includes an active term of incarceration
. . . , impose a term in addition to the
active term of not less than six months nor
more than three years, as the court may
determine. Such additional term shall be
suspended and the defendant placed under
post-release supervision upon release from
the active term of incarceration.

The applicability of Code § 19.2-295.2 has not yet been addressed

by this Court.

"The plain, obvious, and rational meaning of a statute is

always preferred to any curious, narrow or strained construction;

a statute should never be construed so that it leads to absurd

results." Branch v. Commonwealth, 14 Va. App. 836, 839, 419

S.E.2d 422, 424 (1992). "[A] fundamental rule of statutory

construction requires that courts view the entire body of

legislation and the statutory scheme to determine the `true

intention of each part.'" Virginia Real Estate Bd. v. Clay, 9

Va. App. 152, 157, 384 S.E.2d 622, 625 (1989) (quoting McDaniel

v. Commonwealth, 199 Va. 287, 292, 99 S.E.2d 623, 627 (1957)).

Contrary to appellant's assertion, a plain reading of the

statute reveals that Code § 19.2-295.2 applies to both bench and

jury trials. The language is expansive and inclusive, not

limiting and exclusive.

Furthermore, Duncan elucidates the following two principles
underlying the statutory scheme at issue: (1) "[t]he choice of

sentencing procedures is a matter for legislative determination";

and (2) under Virginia's statutory scheme, the sentence

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ascertained by the jury is not final or absolute. See 2 Va. App.

at 344-45, 343 S.E.2d at 393-94. See also Bruce v. Commonwealth,

9 Va. App. 298, 302-03, 387 S.E.2d 279, 281 (1990).

At the time Duncan was decided, Virginia's statutory scheme

provided that "[w]ithin the limits prescribed by law, the

[sentence] of a person convicted of a criminal offense, shall be

ascertained by the jury, or by the court in cases tried without a

jury." Code § 19.2-295. In addition, Code § 19.2-303 provided

that "[a]fter conviction, whether with or without jury," the

court could suspend the sentence, or a portion thereof, and order

probation. Thus, under the scheme at the time of Duncan, if the
jury found the defendant guilty, it ascertained the maximum

punishment to be imposed. Duncan, 2 Va. App. at 345, 343 S.E.2d

at 394. For purposes relevant here, Code §§ 19.2-295 and

19.2-303 remain the same today.

Since Duncan, however, the General Assembly enacted Code

§ 19.2-295.2, which provides the court the option of imposing an

additional term of incarceration. Enactment of Code § 19.2-295.2

amended the statutory scheme in effect at the time of Duncan; the
jury's ascertainment of punishment is no longer necessarily the

maximum punishment which may be imposed. Contrary to appellant's

assertion, Code § 19.2-295.2 comports with the principles

underlying the statutory scheme espoused in Duncan: sentencing

procedure is a matter of legislative determination, and the

jury's ascertainment of punishment is not absolute or final.

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 We find that Code § 19.2-295.2 does not conflict with Code

§ 19.2-295, which provides that the jury shall ascertain

punishment, "[w]ithin the limits prescribed by law." Nor does it

conflict with Code § 19.2-303, which allows the court to suspend

a sentence recommended by the jury. 1

Finally, appellant contends that even if the court had the

authority to increase the sentence, doing so was an abuse of

discretion. Appellant argues that the court had no basis for

increasing the jury's sentence, noting the court's reliance on

the criminal record already considered by the jury and the

imposition of suspended three-year sentences in each

codefendant's case.
We find that the court did not abuse its discretion in

imposing the additional period of probation. The jury

recommended a ten year sentence, and appellant requested that the

court suspend a portion of it. The imposition of sentence was

continued for two months pending the preparation of a

pre-sentence report. The report showed that appellant had been

convicted of at least twenty-four felonies, that he had spent

nearly seventeen of the past twenty years incarcerated, and that

he had failed to comply with the terms of his probation or parole
1
Appellant agrees that he has no constitutional right to
jury sentencing. However, he contends that he has a Due Process
right in having the court properly follow the statutory scheme in
imposing sentence. He claims this right was violated by the
court's deviation from the statutory scheme. Our decision that
the trial court did not err renders appellant's Due Process
contention moot.

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three times in the past. Eight of the prior felony convictions

were for statutory burglary. We find nothing improper in the

court's consideration of appellant's prior criminal record

notwithstanding the fact that the jury had also considered his

criminal record in recommending the ten-year term. The statute

clearly provides the court independent authority to control the

imposition of sentence, giving it discretion to suspend or

increase a jury's recommendation. While appellant's codefendants

received lighter sentences, they did not have appellant's

extensive criminal record. Accordingly, we find no abuse of

discretion in imposing the jury sentence and the additional

one-year suspended term under Code § 19.2-295.2.
For the foregoing reasons, appellant's conviction and

sentence are affirmed.

Affirmed.

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