Burglary in Virginia (Va. Code §18.2-89) is the breaking and entering of the dwelling house of another at night time with the intent to commit a larceny or felony. Burglary in Virginia under §18.2-89 is complete when entry is made with felonious intent.
Proof of Burglary in Virginia
To convict an offender of burglary in Virginia under Va. Code §18.2-89, the Commonwealth must prove every element of the offense: breaking and entering the dwelling house of another at night with intent to commit a larceny or felony therein.
Breaking: Breaking means using any element of force against the dwelling house, without permission, to gain entry. The force does not need to cause damage. Pushing a door open or even using a key to unlock a door without permission can be considered a breaking in Virginia.
Breaking can be actual or constructive. Actual breaking is using physical force to enter the dwelling house. Constructive breaking occurs when the offender uses threats, fraud or conspiracy to cause the structure to be opened.
- Constructive Breaking by Threat occurs by threatening the occupant of the dwelling house to provide access to the structure.
- Constructive Breaking by Fraud is when the offender caused the occupant to provide access by fraud.
- Constructive Breaking by Conspiracy occurs when an occupant permits access to others without the right to do so.
Entering: Entering is any intrusion into the interior space of a dwelling house. Burglary is complete when entry is made with the intent to commit a crime. Entry with permission can even support a burglary conviction if the offender entered with the purpose of committing a felony or larceny.
Nighttime: The Commonwealth must prove the breaking and entering occurred at night (between sunset and sunrise) to convict an offender of burglary in Virginia under Va. Code §18.2-89.
Dwelling House: A burglary under Va. Code §18.2-89 can only be committed against a dwelling house. Va. Code §18.2-78 states that a structure is a dwelling house if a person usually lodged there at night. The dwelling is of the occupant, not of the owner, and the occupant does not need to be present at time of the burglary for a conviction.
Of Another: The structure subject to a burglary in Virginia charge under §18.2-89 must be another person’s dwelling house. A person cannot burglarize his own home. To convict an offender of burglary in Virginia, the Commonwealth must allege and prove that some person other than the accused occupied the dwelling house.
Intent to Commit Larceny or Felony: The Commonwealth must prove that the offender intended to commit a specific crime. In the case of a Virginia burglary charge under Va. Code §18.2-89, the specific crime is a larceny or felony. The intent to commit a larceny or felony can be proven by circumstantial evidence, and the intended felony or larceny does not need to be completed to convict an offender of burglary in Virginia under Va. Code §18.2-89. Additionally, the offender can be charged with, and convicted of, both burglary and the larceny committed in the course of the burglary. For more information on larceny in Virginia, click here.
Deadly Weapon: Using a deadly weapon in the commission of burglary under §18.2-89 is a Class 2 felony, which is punished by up to life in prison. For more information on what is considered a deadly weapon in Virginia, click here.
Possession of Recently Stolen Goods: Possession of stolen goods is not enough to prove that the possessor has committed a burglary in Virginia under §18.2-89. However, if the Commonwealth proves that a breaking and entering occurred and that goods were stolen by the same person who broke and entered, the court can infer that anyone possessing those recently stolen goods committed burglary. The commonwealth must prove that the goods possessed were stolen, that they were recently stolen, and that they were exclusively possessed.
Possession of Burglarious tools: Possession of burglarious tools matching the tools used in a burglary or breaking and entering can be evidence of intent to commit burglary. Burglarious tools are tools, implements, or outfits commonly used in breaking and entering. Possession of Burglarious Tools with intent to commit burglary, robbery or larceny is a separate Class 5 felony under §18.2-94. It is punished with up to 10 years in prison. For more information on the charge of Possession of Burglarious Tools in Virginia, click here.
Penalty for Burglary in Virginia (Va. Code §18.2-89)
Burglary in Virginia under Va. Code §18.2-89 is a Class 3 felony. It is punished with 5 -20 years in prison and a fine up to $100,000. If the offender used a deadly weapon in the commission of the burglary, the offense becomes a Class 2 felony, punished with 20 years up to life in prison.
Burglary in Virginia Statute (Va. Code §18.2-89)
§18.2-89. Burglary; how punished.