COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and
Senior Judge Overton
Argued at Alexandria, Virginia
GEORGE PEREZ LEVENBERRY
MEMORANDUM OPINION * BY
v. Record No. 0979-00-4 CHIEF JUDGE JOHANNA L. FITZPATRICK
APRIL 3, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
Paul F. Sheridan, Judge
Robert W. Gookin for appellant.
Susan M. Harris, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
George Perez Levenberry (appellant) was convicted in a jury
trial of statutory burglary in violation of Code § 18.2-91. 1 The
sole issue raised is whether the evidence was sufficient to
establish the requisite "breaking" for statutory burglary.
Finding the evidence is insufficient, we dismiss his conviction.
I.
Under familiar principles of appellate review, we examine the
evidence in the light most favorable to the Commonwealth, the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant was also convicted of grand larceny in violation
of Code § 18.2-95. That conviction is not at issue in this
appeal.
prevailing party below, granting to that evidence all reasonable
inferences fairly deducible therefrom. See Juares v.
Commonwealth, 26 Va. App. 154, 156, 493 S.E.2d 677, 678 (1997).
The testimony of Mr. Hodge, the homeowner, regarding the
condition of the door is as follows:
Q. So you were living at 3716 Lorcum
Lane on June 11th, 1999?
A. Yes, sir.
Q. Did you drive to work that day?
A. Yes, sir.
Q. And did you – what time did you
return home?
A. I'm not sure. I am thinking it was
right after my son got home, which is
a little bit after 3:00.
Q. What are the usual hours that your
house is vacant during the day on a
regular school day?
A. It's usually vacant after 8:00. I
believe my oldest son goes to school
8:00 to 8:30, 9:00. It varies when
he has to be there. And then my youngest
son gets back at 3:00.
Q. And when you returned home, what did
you observe?
A. An open door in the kitchen. There is
a glass door back there, and it was
standing open almost all the way or half
way, somewhere around there.
Q. Can I approach the witness?
The Court: You may.
Q. Are those pictures bearing accurate
depictions of your sliding glass door?
A. Yes.
Q. And it was actually open when you got home?
A. Yes.
The Commonwealth concedes that no evidence established that
the door was "locked or shut." No witnesses for the
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Commonwealth testified whether the door was closed at the time
the last person left the home.
II.
Appellant contends no evidence established the requisite
"breaking" required by Code §§ 18.2-90 and 18.2-91. 2 We agree.
"Actual breaking involves the application of
some force, slight though it may be, whereby
the entrance is effected. 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 the crime. . . ."
Robertson v. Commonwealth, 31 Va. App. 814, 821, 525 S.E.2d 640,
644 (2000) (quoting Davis v. Commonwealth, 132 Va. 521, 523, 110
S.E. 356, 357 (1922)). The evidence established only that the
door was open when the homeowner returned. No evidence proved
that the door was closed when Mr. Hodge left for work or when
his children later left for school. Absent evidence of any
force, even the "slight physical force" necessary to establish a
2
Code § 18.2-90 provides, in pertinent part, that
[i]f any person . . . in the daytime breaks
and enters . . . in a dwelling house . . .
with intent to commit . . . [enumerated
felonies] . . . he shall be deemed guilty of
statutory burglary . . . .
(Emphasis added).
Code § 18.2-91 provides, in pertinent part, that
[i]f any person commits any of the acts
mentioned in § 18.2-90 with intent to commit
larceny . . . he shall be guilty of
statutory burglary . . . .
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breaking, we must reverse and dismiss the statutory burglary
conviction. 3
Reversed and dismissed.
3
The Commonwealth relies on Bright v. Commonwealth, 4 Va.
App. 248, 356 S.E.2d 443 (1987), for the proposition that recent
possession of stolen goods raises an inference that the
possessor also committed the burglary. However, this does not
remove from the Commonwealth the need to prove the underlying
elements of the burglary.
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