Warren Thaddious Buie v. Commonwealth , 21 Va. App. 526 ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Annunziata
Argued at Norfolk, Virginia
WARREN THADDIOUS BUIE
v. Record No. 0117-95-1 OPINION BY
JUDGE RICHARD S. BRAY
COMMONWEALTH OF VIRGINIA JANUARY 16, 1996
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Edward I. Sarfan (Sarfan & Nachman, on brief),
for appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Robert B. Condon, Assistant Attorney General,
on brief), for appellee.
Warren T. Buie (defendant) was convicted on an indictment
charging burglary of "a certain office, shop, storehouse, warehouse
or other house" in violation of Code § 18.2-91. On appeal, he
contends that the evidence was insufficient to support the
conviction. We disagree and affirm the decision of the trial
court.
Under familiar principles of appellate review, we examine "the
evidence in the light most favorable to the Commonwealth, granting
to it all reasonable inferences fairly deducible therefrom."
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). "The judgment of a trial court sitting without a jury is
entitled to the same weight as a jury verdict and will not be set
aside unless it appears from the evidence that [it] is plainly
wrong or without evidence to support it." Id.
During the predawn hours of June 28, 1994, defendant was
observed "moving back and forth" inside an "office trailer"
(trailer) located within the perimeter of a fenced construction
site that was secured by locked gates. Police were summoned to the
scene, and defendant, appearing from the side of the trailer,
raised his arms, and stated, "All right. You guys got me. I was
trespassing." Subsequent investigation revealed broken glass and
open windows in the trailer, interior cabinets "rummaged through,"
and other contents in disarray.
The evidence disclosed that the fully enclosed trailer rested
on blocks positioned along its underside, was served by
electricity, air conditioned, and was appropriately designed and
furnished for office use. The trailer was accessed by steps
leading to one of two doors, both of which, together with its
several windows, were locked at the conclusion of each workday. It
is uncontroverted that the structure regularly functioned as an
office at the time of the offense.
Nevertheless, defendant argues that the trailer was not
sufficiently "permanent" and "affixed to realty" to satisfy the
elements of Code § 18.2-91. 1
Code § 18.2-91 provides, inter alia:
If any person [commits] any of the acts
mentioned in Code § 18.2-90 with intent to
commit larceny . . . he shall be guilty of
statutory burglary . . . .
1
Other elements of the offense are not in issue on appeal.
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Code § 18.2-90 provides, in pertinent part:
If any person . . . in the nighttime enters
without breaking or at any time breaks and
enters . . . any office, shop, storehouse,
warehouse, banking house, or other house . . .,
he shall be deemed guilty of statutory 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 such structures be a part of the
realty. 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). Thus, "in order for a structure to be the
subject of burglary, . . . [it] must be permanently affixed to the
ground . . . at the time of the unlawful entry." Dalton v.
Commonwealth, 14 Va. App. 544, 548, 418 S.E.2d 563, 565 (1992). 2
In Dalton, we noted that permanency is "necessarily a factual
determination . . . that may vary from case to case." Id. at n.1,
418 S.E.2d at 565 n.1. Therefore, "the focus . . . is on whether
the structure is affixed to the ground so as to become a part of
the realty at the time of the unlawful entry and not that the
manner in which it is affixed . . . will in fact be permanent."
Id. (emphasis added). "Whether previously mobile property that has
been rendered stationary is affixed and a part of the real estate,
2
Although not an issue in this appeal, Dalton also instructs
that "a structure subject to burglary must . . . have walls and a
roof." Dalton, 14 Va. App. at 548, 418 S.E.2d at 565.
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and thus a subject of burglary, is a factual question[,]" and the
determination of the trial court will be reversed only if
unsupported by credible evidence. Rooney v. Commonwealth, 16 Va.
App. 738, 740, 432 S.E.2d 525, 526-27 (1993); Dalton, 14 Va. App.
at 546, 418 S.E.2d at 564.
In Rooney, the appellant also challenged a burglary conviction
resulting from the unlawful entry of an office trailer, arguing
that it was not a structure contemplated by Code §§ 18.2-90
and -91. Rooney, 16 Va. App. at 739-40, 432 S.E.2d at 526. In
affirming the conviction, we noted that the trailer was "set up on
a . . . lot[,] . . . rested on a cinder block foundation," and was
regularly utilized as an "office," with attendant electric service
and furnishings, all characteristics shared by the trailer subject
of the instant offense. Id. at 740, 432 S.E.2d at 527. Moreover,
the instant trailer was served by fixed steps leading from ground
level to an elevated doorway and surrounded by a secure fence.
We, therefore, find ample support in the record for the
court's conclusion that the trailer was protected by the provisions
of Code §§ 18.2-90 and -91 and affirm the conviction.
Affirmed.
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