Giles v. Com.

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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