Grimes v. Commonwealth.

October 29, 2013:

             The Virginia Court of Appeals reversed in part and affirmed in part the decision of the Circuit Court of the City of Newport News, convicting appellant of a number of burglary-related offenses.  A home on Roanoke Avenue in the City of Newport News had been unoccupied since the death of the resident.  On June 18, 2012, two neighbors went over to look at the house, as one was considering purchasing the home as an investment.  They went to the backyard, heard a noise from underneath the house, and called the police.  A man then came out from under the house and began loading items into a truck.  Appellant then came out carrying copper pipes, told one neighbor “the lady” said he could have the pipes, and quickly walked away dropping pipe as he went.

            Upon arrival, one officer noted the man loading pipes into his truck, and the appellant carrying pipes away.  Another officer stopped appellant and searched him.  He was found to be carrying 3 cutting or grabbing tools and a flashlight.  Appellant claimed he had found the pipes in a nearby dumpster, although none could be found in the area, and denied being at the home.  The officers observed copper pipe strewn about on the street, in the backyard of the home, and near the crawl space.  The door to the crawl space was open and the lock had been cut.    

At trial, the Commonwealth attempted to elicit expert testimony regarding the value of the pipes from a detective.  The trial court held he was not an expert and struck his testimony.  The Commonwealth then introduced testimony from the executor of the estate that she had paid $4700 to repair and replace the pipes.  The repairman also testified that the cost of purchasing new copper pipes was $950.  Appellant was found guilty and convicted of grand larceny, conspiracy to commit grand larceny, larceny with intent to sell or distribute property with a value of $200 or more, conspiracy to commit larceny with the intent to sell or distribute property with a value of $200 or more, statutory burglary, felony destruction of property, and possession of burglary tools.  The latter two convictions were not appealed.  Appellant was then sentenced to forty-seven years in prison, with all but seven years suspended.

On appeal, appellant argues first that the Commonwealth failed to establish the value of the copper pipes as $200 or above, as required by statute.  The Virginia Court of Appeals noted that the Commonwealth is required to provide evidence of the actual value, or market value, of the item in question, to establish the stolen item’s value beyond a reasonable doubt.  However, the Commonwealth was only able to provide evidence of the replacement value.  The court of appeals noted that in certain circumstances this can be used to draw an inference about the market value of an item.  In Little v. Commonwealth[1], the court held that use of the replacement value of demo phones was permitted, as the fact-finder could infer the phones were current models and in working condition. 

In the case at bar, there was no evidence of the age or condition of the pipes, apart from a photo, which showed them to be well-worn.  Replacement value would not have been appropriate to establish actual value here.  Further, the court pointed out that unlike jewelry, which tends to hold its value over time, pipes may become worn and sustain damage.  The Virginia Court of Appeals held the Commonwealth did not meet its burden of establishing the value of the copper pipes as $200 or above, as required by statute.  Thus, the court of appeals reversed the convictions for grand larceny, conspiracy to commit grand larceny, larceny with intent to sell or distribute property with a value of $200 or more and conspiracy to commit larceny with the intent to sell or distribute property with a value of $200 or more.

With respect to the statutory burglary charge, appellant argued that he was not guilty because the evidence only showed that he crawled under the residence, and did not enter the residence.  Virginia Code §18.2-91 states that if any person commits any of the actions mentioned in §18.2-90, namely the breaking and entering of a dwelling house, with the intent to commit larceny they will be guilty of statutory burglary.  Appellant did not contest that the home in question was a dwelling house.  The Virginia Court of Appeals stated that the record established that the crawl space was enclosed within the walls of the home.  Further, that access to the crawl space was through an exterior door built into the lower portion of an exterior wall of the dwelling house.  It was physically part of the dwelling house.  The court held that the plain language of the statute does not exclude spaces within the walls of a dwelling house.

Thus, appellant’s actions met the terms of the statute.  The lock on the crawl space door was broken and appellant entered the crawl space.  The court stated that although the crawl space did not connect with the interior of the home and was not used for ordinary household function, this did not mean it was not part of the home for statutory purposes.  The court noted that the purpose of the statute was to protect the “sanctity of the home.”  As such, the breaking and entering of a structure within the walls of a dwelling house satisfies the plain language of the statute.  The Virginia Court of Appeals affirmed the conviction of appellant for statutory burglary.


[1]  Little v. Commonwealth, 59 Va. App. 725, 733, 722 S.E.2d 317, 320 (2012).

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