FROM THE CIRCUIT COURT OF STAFFORD COUNTY. J. Peyton Farmer, Judge.
Patricia Kelly, Assistant Public Defender, for appellant.
Donald E. Jeffrey, III, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Chief Judge
Fitzpatrick, Judge Benton and Senior Judge Duff.
MEMORANDUM OPINION [*]
JAMES W. BENTON, JR., JUDGE
Jonathan M. Whitaker was tried by a judge and convicted of breaking and entering with the intent to commit larceny, a statutory burglary in violation of Code § 18.2-91. Whitaker contends the evidence was insufficient to prove a " breaking." We agree and reverse Whitaker's conviction.
When considering the sufficiency of the evidence on appeal in a criminal case, this Court views the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). So viewed, the evidence proved that prior to trial, Whitaker pleaded guilty to grand larceny and possession of a firearm after having been convicted of a felony.  The larceny was committed in the house of Whitaker's mother and stepfather, the same residence in which the burglary was alleged to have occurred. Following his plea, Whitaker was tried for burglary in a bench trial with two codefendants who were charged with multiple offenses involving property stolen from the house of Whitaker's mother and stepfather.
At trial, Whitaker's mother testified that before these events occurred Whitaker had lived " on and off" in the house. In 1996, she and her husband, Whitaker's stepfather, had agreed to allow Whitaker to live in their house provided Whitaker maintained a job and assisted with household chores. On or around October 31, 1996, Whitaker's stepfather told Whitaker to look for another place to live because Whitaker lost his job. Although Whitaker never spent a night in the house after that day, Whitaker retained a set of keys to the house and returned to the house on occasion.
Whitaker's mother further testified that neither she nor Whitaker's stepfather told Whitaker he was not allowed in the house. Whitaker's mother testified that she had given Whitaker permission to enter the house to take showers, pick up clean clothes, or have a meal. She never asked Whitaker to return his house key and " never told him not to come back in the house."
Around mid-November, Whitaker's mother and stepfather noticed things were missing from the house. Whitaker's mother called the police to report the missing jewelry, camcorder, camera, camping stove, binoculars, router, and two firearms. Whitaker's mother and stepfather then changed the locks on the front door of the house. Whitaker's mother testified that nothing was taken after the locks were changed. She also testified that after she filed the report with the police, Whitaker admitted to her that he took the firearms. 
Whitaker's stepfather testified that after he told Whitaker that Whitaker needed to look for another place to live, Whitaker did not " say anything one way or the other." He did not impose a time by which Whitaker had to leave. Although Whitaker did not " come back to spend the night, " Whitaker left his clothes and personal items in the house. When asked if " Whitaker had permission to be in [the] house, " Whitaker's stepfather testified, " I didn't say he couldn't be there." Whitaker's stepfather further testified that he did not object to Whitaker " coming or going, getting his personal items out of the house" and agreed that Whitaker " had some type of permission to be in there to get his clothes."
Whitaker's stepfather noticed the guns missing in mid-November, several weeks after he told Whitaker to look for another place to live. The police later recovered the missing items from several local pawn shops. In a statement to police, Whitaker admitted that he took two firearms, a camping stove and a router from his parents' house. Whitaker said that he pawned the camping stove and the router and that one of the codefendants, Harris, pawned the guns for him. Whitaker denied taking or pawning his mother's jewelry.
Over Whitaker's objection, the trial judge admitted into evidence a statement made to the police by Whitaker's other codefendant, Vasquez.  Vasquez told police that after Whitaker got " kicked out, " Vasquez drove Whitaker to the house " almost every day." Vasquez and Harris would sit in Vasquez's car smoking a cigarette while Whitaker went into the house. Whitaker took some rings, a circular saw, firearms and a camcorder. Vasquez stated that he pawned all of the items Whitaker took from the house. Vasquez stated that the " first few times ...