FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Wilford Taylor, Jr., Judge
Ben Pavek, Assistant Public Defender, for appellant.
Aaron J. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Decker, Russell and Senior Judge Felton Argued at Norfolk, Virginia.
WESLEY G. RUSSELL, JR. JUDGE.
Appellant, Charles Jayson Beck, was convicted in a bench trial of breaking and entering in violation of Code § 18.2-91, grand larceny in violation of Code § 18.2-95, and obtaining money by false pretenses in violation of Code § 18.2-178. On appeal, appellant first argues the evidence is insufficient to prove a burglary because the evidence showed appellant broke within a dwelling rather than broke into a dwelling. In the alternative, appellant argues the trial court erred in convicting him of burglary because the evidence failed to prove beyond a reasonable doubt whether the offense occurred during the daytime or during the nighttime. For the reasons that follow, we affirm appellant's burglary conviction.
"Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below." Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). This principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn therefrom." Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis, citation, and internal quotation marks omitted).
Colleen Shook ("Shook") lived with her son in a single family home in Hampton. Previously, to provide a place for her mother to live, Shook converted three bedrooms within the house into what she described as a separate apartment, comprised of its own living quarters, including a kitchen containing a refrigerator, stove, and dishwasher.
Although the apartment was initially intended for use by Shook's mother, Shook made it available for rent once her mother no longer used the apartment. Appellant and his mother were tenants in the apartment in September of 2013.
The apartment has its own entrance and is connected to the Shooks' living quarters by a utility room that houses laundry facilities. The utility room has three doors-one leading to the apartment, one to the Shooks' living quarters, and the third to the garage. The utility room is the sole passageway between the apartment and the Shooks' living quarters.
Shook testified the appellant never had permission to enter her side of the home, although there were times when he was there by invitation. The door from the Shooks' living quarters to the laundry room was always closed. It is undisputed that appellant had permission to use the utility room and that, in at least some circumstances, he had permission to access the garage.
On September 20, 2013, Shook discovered that two guitars and thirty pieces of jewelry were missing from the Shooks' living quarters. On September 23, 2013, appellant pawned one of the guitars at a local pawn shop. At trial, appellant admitted to pawning the guitar, but claimed that he had permission to do so.
At the close of the Commonwealth's evidence, appellant made a motion to strike. In denying the motion, the trial court, recognizing the garage and utility room as common areas, stated that "the evidence that is presented . . . established that Mrs. Shook had separated or created a separate place by the renovation project. . . . [H]er mother had a separate apartment . . . ." At the close of all the evidence and arguments of counsel, the court ruled that appellant's apartment ...