Taylor v. Commonwealth , 11 Va. App. 649 ( 1991 )

Opinion

BARROW, J.

In this criminal appeal, we hold that common law trespass is not a lesser included offense of statutory burglary under Code § 18.2-91, even when the indictment specifically charges that a dwelling was burglarized.¹ In a trial for statutory burglary of a dwelling, an accused is not, therefore, entitled to an instruction permitting the jury to return a verdict of guilty of common law trespass instead of statutory burglary.

The defendant was discovered one morning in someone else’s home which he had entered after forcing open a locked door. When discovered, he immediately fled but was apprehended later.

He was convicted of statutory burglary in violation of Code § 18.2-91. At trial he requested and was denied a jury instruction which would have permitted the jury to find him guilty of common law trespass² instead of statutory burglary. He contends that the trial court erred in refusing the requested instruction.

If there is evidence tending to support a conviction for a lesser included offense, a trial court errs in refusing an instruction based on the lesser offense. Barrett v. Commonwealth, 231 Va. 102, 107, 341 S.E.2d 190, 193 (1986). However, an accused is not entitled to have the jury instructed on an offense which is not a lesser included offense of the one with which he or she is charged. Simms v. Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d 734, 735 (1986). The defendant was, therefore, only entitled to an instruction on common law trespass if common law trespass is a lesser included offense of statutory burglary.

A lesser included offense is one “composed entirely of elements that are also elements of the greater offense.” Kauffmann v. Commonwealth, 8 Va. App. 400, 409, 382 S.E.2d 279, 283 (1989). For this reason, if a crime is a lesser included offense of another crime, the commission of the greater offense must invariably also be a commission of the lesser offense. Id. Conversely, an offense is not lesser included within another if it has an element the other does not. Jones v. Commonwealth, 218 Va. 757, 759, 240 S.E.2d 658, 660, cert. denied, 439 U.S. 892 (1978). In order, therefore, for common law trespass to be a lesser included offense of statutory burglary, common law trespass must always be committed when statutory burglary is committed and, therefore, not have an element which statutory burglary does not have.

This requirement of identity between the elements of a lesser offense and some of the elements of the greater offense is not an empty technicality. A lesser included offense is necessarily charged by implication in an indictment for a greater offense and necessarily proven by the proof of the greater offense. Since the prosecution is required to prove the lesser offense as well as the greater, it is not disadvantaged by being required to submit the lesser offense for adjudication. A crime that is not a necessarily included lesser offense, on the other hand, is not charged by implication and is not necessarily proved by proof of the greater offense. Submission to a jury, therefore, of a crime not constituting a necessarily included lesser offense would allow an accused to force resolution of an offense the prosecution had not charged and had no reason to seek to prove. To avoid such a result in this case, we must determine if common law trespass is a necessarily included lesser offense of burglary.

The determination of what offenses are necessarily included lesser offenses of the crime charged is based on the fundamental nature of the offenses involved, not on the particular facts of a specific case or the language of a given indictment.³ The only offenses which are lesser included are those which are “in their nature constituent parts of the major offense.” Stapleton v. Commonwealth, 140 Va. 475, 486, 124 S.E. 237, 241 (1924). Even if one offense is committed in almost all cases of the commission of another offense, it is not a necessarily included lesser offense of the other one. Ashby v. Commonwealth, 208 Va. 443, 445, 158 S.E.2d 657, 658 (1968) (Indecent exposure not a lesser included offense of sodomy). Neither the facts charged in the indictment nor those proved at trial determine whether an offense is a necessarily included offense; the determination, instead, is made by examining the elements of the crimes that must be proved in order to sustain a conviction.

We turn, therefore, to the elements of the offenses to see if common law trespass is invariably committed when a statutory burglary is committed. At common law, trespass is a crime only “if it amounts to a breach of the peace, or if it tends to or threatens a breach of the peace.” Miller v. Harless, 153 Va. 228, 244, 149 S.E. 619, 624 (1929). See also Snead v. Commonwealth, 212 Va. 803, 804, 188 S.E.2d 197, 198 (1972); Bouie v. City of Columbia, 378 U.S. 347, 358-59 (1964); State v. Ocheltree, 289 S.E.2d 742, 746 (W. Va. 1982). If an actual or threatened breach of peace does not occur, trespass upon the real property of another, at common law, is not a crime but only the basis for a civil action. Miller, 153 Va. at 244, 149 S.E. at 624. Therefore, if common law trespass is a lesser included offense of statutory burglary, a breach of the peace must constitute an element of the crime of statutory burglary.

A breach of the peace is an act of violence or an act likely to produce violence. State v. Steger, 94 W. Va. 576, 580, 119 S.E. 682, 684 (1923); State v. Runner, 310 S.E.2d 481, 485 n.4 (W. Va. 1983). An entry on another’s property is not a breach of the peace unless it is made in such a way that it would reasonably appear to the possessor of the property that to resist would invite assault. Town of Grundy v. Goff, 191 Va. 148, 160-61, 60 S.E.2d 273, 278 (1950); Southern Ry. v. Lima Wood & Coal Co., 156 Va. 829, 835, 159 S.E. 69, 71 (1931). Even the breaking and entering of “the close of another” is not criminal trespass unless accompanied by a breach of the peace. Henderson v. Commonwealth, 49 Va. (8 Gratt.) 708, 710 (1852). A violation of Code § 18.2- 91 does not require proof of an act of violence or an act likely to produce violence. The statute prohibits certain described entries into dwellings, offices, shops, storehouses, warehouses, banking houses, ships, vessels, river craft, or railroad cars. Code § 18.2- 91. Automobiles, trucks and trailers are so protected if used for human habitation. Id. If one enters any such structure and conceals himself, a physical breaking is not a necessary element of the offense. Id. The force needed to accomplish the breaking need only be slight. Finch v. Commonwealth, 55 Va. (14 Gratt.) 643, 646 (1858). While breaking and entering a dwelling of another may often constitute a breach of the peace, particularly where it is done for the purpose of committing rape, robbery, or murder, breaking into a warehouse or store for the purpose of committing larceny is not a breach of the peace. If it were otherwise, the Commonwealth, in every case of statutory burglary, would have to prove beyond a reasonable doubt that the defendant committed an act likely to produce violence. However, a breach of the peace is not a fact the government is required to prove to obtain a conviction for violation of Code § 18.2-91.

Since statutory burglary does not contain the element of an actual or threatened breach of the peace, common law trespass is not a lesser included offense of statutory burglary. For this reason, the trial court correctly refused the proposed instruction allowing the jury to find the accused guilty of common law trespass.

For these reasons, the judgment of conviction is affirmed.

Affirmed.

Cole, J., concurred.

1 The indictment charged that the defendant “feloniously did break and enter the dwelling of [another] with the intent to commit larceny therein.”

2 The defendant only offered an instruction on common law trespass; therefore, we do not consider whether Code §§ 18.2-119 through 18.2-136.1 or any other statutory prohibition against trespass are lesser included offenses of statutory burglary.

3 The determination of what constitutes a necessarily included lesser offense is distinguishable from the related problems of what offenses constitute the “same offense” for double jeopardy purposes. Even if an offense is not a necessarily included lesser offense, a successive prosecution for the offense may still be barred by double jeopardy. An offense may not be a “necessarily included lesser offense” for jury instruction purposes, yet constitute the “same offense” for double jeopardy purposes, depending on the nature of the government's proof. See Grady v. Corbin, 495 U.S. 508 (1990). Thus, by holding that common law trespass is not a necessarily included lesser offense of the crime charged, we are not holding that a subsequent prosecution of Taylor for common law trespass is permitted.