Protecting Your Rights
Common law burglary is an old and very technical crime. The common law burglary statute in Virginia is Va. Code 18.2-89:
“If 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, punishable as a Class 3 felony; provided, however, that if such person was armed with a deadly weapon at the time of such entry, he shall be guilty of a Class 2 felony.”
In order to be guilty of burglary a person must do the following things:
- Break and enter
- the dwelling of another
- at night
- with the intent to commit a felony or larceny
If the burglary is committed while armed with a deadly weapon then there is a more serious punishment.
What is Breaking and Entering?
Breaking and entering into a house does not have to involve damaging or actually breaking anything. A person “breaks and enters” for purposes of burglary, if the defendant uses the application of physical force, however slight, to enter the dwelling.
Opening a window, unlocking a door with the keys or gently pushing open a door can be enough to count as “breaking and entering”. However, walking through a wide-open door does not count as breaking for the purposes of burglary.
“Breaking and Entering” also requires some entering. Putting any part of your body into the dwelling counts is entering. So reaching an arm through a window is enough to count as entering.
Dwelling House Defined:
A dwelling house is any structure which human beings regularly used for sleeping. So businesses, sheds, or abandoned houses do not count as dwelling houses.
To be burglary, the dwelling house must belong to another. So kicking down a roommate’s locked bedroom door does not count because only the one room belongs to another, not the whole dwelling house.
An attached garage is also part of a dwelling house and therefore entering an attached garage can count as entering a dwelling house.
To be burglary under this statute the prosecutor must prove beyond a reasonable doubt that the crime occurred after sunset but before sunrise.
In cases where the defendant was not caught red handed proving this element can be very difficult. In the typical burglary case, a home owner returns home or wakes up and they find that they have been robbed.
In those cases it can be very difficult for the prosecution to prove that the burglary could not have happened during the day.
Of course robbing a house in the day time is still a crime. Robbing a house in the day time is just is not burglary under Va. Code 18.2-89.
Intent to Commit a Felony or Larceny:
Breaking and entering into someone’s home is not burglary under this statute unless the would-be burglar enters into the dwelling with the intent of committing a felony or larceny crime.
If I throw a rock through your window and enter you house so that I can vandalize property worth less than $1000 then I have not committed burglary under this law.
If a would-be burglar is caught before they have a chance to commit a crime inside, proving a person’s intentions when they entered a house at night can be very difficult.
To prove a defendant’s intentions the prosecution typically uses confessions or circumstantial evidence. An example of circumstantial evidence would be if a person is caught in a house with zip ties, duct tape, a hood and a knife in their possession. Those items can be used as evidence that the burglar had the intention of abducting someone inside.
Penalties for Burglary at Night (Va. Code 18.2-89):
Violating Va. Code 18.2-89 (Burglary at Night) is a class 3 felony. Class 3 felonies come with 5-20 years in prison and up to $100,000 in fines.
Committing this same crime while armed with a deadly weapon is a class 2 felony. Class 2 felonies come with up to 20 years to life in prison and a fine of up to $100,000.
If you are convicted of a felony, you lose certain civil rights. Felons cannot vote and cannot own guns in Virginia. Conviction can also affect your ability to get certain jobs, go to graduate school, get security clearance, join the military and may result in deportation.
VA. Code 18.2-90: Statutory Burglary with intent to murder, rape, rob or commit arson.
Statutory burglary is designed to fill some of the squirrely loop holes in common law burglary (Va. Code 18.2-89).
Va. Code 18.2-90 (statutory Burglary with intent to murder, rape, rob or commit arson is the same level or felony with the same types of punishments as Va. Code 18.2-89 (common law burglary)
However, Va. Code 18.2-90 (statutory Burglary with intent to murder, rape, rob or commit arson) is different from Va. Code 18.2-89 (common law burglary) in the following ways:
- Statutory burglary does not require breaking into a building if done at night
- Statutory burglary can happen in the day time if there was breaking and entering.
- Statutory burglary applies to homes, permanent buildings, ships, railroad cars, and trailers and vehicles that someone lives in if done at night.
- Statutory burglary applies to dwellings and adjoining occupied structures if done in the day time.
- Statutory burglary applies to “entering and concealing” not just “breaking and entering”.
- Va. Code 18.2-90 requires the intent to murder, rape, rob or commit arson. (robbery is stealing items that are being held or worn by a person)
VA. Code 18.2-91: Statutory Burglary with intent to commit a felony other than murder, rape, rob or arson.
Statutory burglary under Va. Code 18.2-91 is less serious that statutory burglary under Va. Code 18.2-90 or common law burglary under Va. Code 18.2-89.
Statutory burglary under Va. Code 18.2-91 is punishable with up to 20 years in prison and a $2,500 fine. Or if the crime was committed while armed with a deadly weapon then the crime becomes a class 2 felony. Class 2 felonies come with up to 20 years to life in prison and a fine of up to $100,000.
The difference between Va. Code 18.2-90 and Va. Code 18.2-91 is the intent. If the intent is to commit murder, rape, robbery, or arson the burglar is guilty of Va. Code 18.2-90.
Robbery is different than normal larceny because robbery involves stealing something that a person has in their immediate possession. You commit robbery when you steal something that is held, worn, or in the pockets of another person.
If the burglar’s intentions where not to commit murder, rape, robbery or arson but instead to commit another felony or misdemeanor assault and battery then the burglar is guilty of violating Va. Code 18.2-91.
The easiest way for the prosecution to prove intent is either by a confession or through the actions of the burglars. If a person breaks into a home and then robs the home owners it can be inferred that the burglars committed the burglary with the intent to rob.
Va. Code 18.2-91 is the statute that the prosecution uses when they cannot prove the time of day that the offense occurred or when they cannot prove any intent other than larceny.