Virginia Common Law and Statutory Burglary Crimes

A person who commits burglary in Virginia can face serious felony penalties, including lengthy terms of imprisonment and hefty fines.

Each state has its own laws defining burglary and related offenses. Virginia law provides a unique distinction between common law and statutory burglaries not found in many other states.

Burglary: Common Law and Statutory

In Virginia, common law burglary is defined as breaking and entering into a dwelling house at night with the intent to commit a felony or any larceny (theft) therein. This crime closely mirrors the original definition of the crime, which the United States inherited from the common law of England.

Virginia law also contains several additional burglary statutes, which are partially repetitive of the common law definition, but each has distinctive features concerning time, place, and intended crimes.

(Va. Code § 18.2-89 (2020).)

Elements and Definitions for Burglary

Burglary can generally be defined as (1) an unlawful breaking or entering of (2) a dwelling or place (3) during the day or nighttime (4) with the intent to commit a crime inside. The prosecutor must prove all of these elements beyond a reasonable doubt (or the defendant must admit to them) for a conviction. Without sufficient proof of each element, the prosecutor may secure a conviction for some other crime (such as trespass or attempted burglary) but not burglary. Let's review these elements and definitions in more detail.

Unlawful Breaking, Entering, or Concealing

Depending on the statute, the crime of burglary can involve an unlawful:

  • breaking and entering
  • entering (without breaking), or
  • entering and concealing oneself.

Breaking and entering. Breaking requires that the defendant use some degree of force, even if slight, and physically pass into a building. The breaking can be actual or constructive. Actual breaking involves the defendant using force to get inside. Constructive breaking occurs when the defendant gains entry by threats, fraud, or conspiracy. For example, a defendant who threatens someone inside the house to gain entry. Entering can also be slight, as long as it follows a breaking. For example, someone who nudges a door open, reaches their arm into the house, and grabs a purse sitting near the door satisfies both parts of breaking and entering.

Entering without breaking. Certain types of statutory burglary can be prosecuted if the defendant entered without breaking. An entry through an already open door into a dwelling at night falls into this category. The offender entered into the structure; however, neither actual breaking nor constructive breaking took place.

Entering and concealing. An example of entering and concealing involves a person entering a store during open business hours under the guise of being a customer. Instead, the person hides in a storage room until the store closes waiting to steal merchandise after everyone has departed.

Dwelling House and Other Buildings

A person can only commit common law burglary by entering a dwelling house, though the occupant does not need to be present. Statutory burglaries protect dwellings along with other buildings or places, including adjoining occupied outhouses, buildings permanently affixed to realty, churches, watercraft, and any motor vehicle used as a place of habitation (like an RV).

Daytime or Nighttime

Burglary can occur in the daytime or at nighttime, depending on the specific statutory crime alleged. Nighttime means after sunset and before sunrise. Generally, if a burglary happens at night, the prosecution only needs to show an unlawful entry occurred (no breaking or concealing required). To convict a daytime burglary, the prosecutor needs to prove a breaking and entering or an entering and concealing.

Intent to Commit a Crime Inside

Finally, the defendant’s state of mind at the time of entry is vital. To be convicted of burglary, the defendant must have decided to commit a felony or some other crime, depending on the statute under which the criminal complaint is based. And then, the defendant must enter the building for the purpose of committing that crime, whether or not the defendant actually completes the crime. The prosecutor can try to prove the defendant’s intent using circumstantial evidence, but the alleged intent must be inferred from the facts. In Virginia, if a defendant unlawfully enters a business establishment, the intent to commit larceny can be inferred.

(Va. Code § 18.2-89 (2020).)

Common Law Burglary: Crime and Penalties

As noted above, common law burglary occurs when a person breaks and enters into a dwelling house at nighttime with the intent to commit a felony or any larceny inside. Burglary is usually a Class 3 felony, which incurs a $100,000 fine and five to 20 years in prison. However, the offense increases to a Class 2 felony when the defendant is armed with a deadly weapon at the time of entry. A Class 2 felony carries penalties of 20 years to life in prison and a $100,000 fine.

(Va. Code §§ 18.2-10, -89 (2020).)

Statutory Burglary: Crimes and Penalties

Statutory burglary offenses were created to address crimes that did not fall into the traditional common law burglary definition.

These statutory crimes are broken into several categories, based on whether a breaking and entry (or only unlawful entry) took place, what time of the day or night the crime occurred, what kind of building or place was involved, and what crime the defendant intended to commit. We’ll break out these crimes by the intended crime.

Intent to Commit Murder, Rape, Robbery, or Arson

A defendant who:

  • enters a dwelling (without breaking) at night
  • breaks and enters a dwelling at any time, or
  • enters and conceals oneself in a dwelling at any time,

with the intent to commit a murder, rape, robbery, or arson inside, commits a Class 3 felony. The offense increases to a Class 2 felony if the defendant was armed with a deadly weapon at the time of entry.

In addition to a dwelling, the involved structure or place can include an adjoining occupied outhouse, any building permanently affixed to realty, any ship, vessel, or river craft, any railroad car, or any motor vehicle used as a place of habitation.

A person guilty of a Class 3 felony faces five to 20 years in prison and a $100,000 fine. A Class 2 felony carries 20 years to life in prison and a $100,000 fine.

(Va. Code §§ 18.2-10, -90 (2020).)

Intent to Commit Other Felonies, Larceny, or Assault and Battery

This category includes defendants who intend to commit any felonies not mentioned in the section above (murder, rape, robbery, or arson) or any larceny or assault and battery (regardless of their offense level). Such an offense carries a felony penalty of one to 20 years in prison. At the discretion of the judge or jury, the defendant instead can be sentenced to a misdemeanor, up to 12 months in jail and a $2,500 fine.

If the defendant was armed with a deadly weapon at the time of entry, however, the offense increases to a Class 2 felony, which incurs a fine of up to $100,000 and 20 years to life in prison. Additionally, a bank burglar is subject to the Class 2 felony punishment.

(Va. Code §§ 18.2-10, -91, -93 (2020).)

Intent to Commit Other Misdemeanors

An unarmed person who breaks and enters a dwelling while occupied, in either the day or night, with the intent to commit a misdemeanor other than trespass or assault and battery is guilty of a Class 6 felony. This low-level felony incurs one to five years in prison. Or, at the discretion of the judge and jury, the defendant can be sentenced to a misdemeanor, punishable by 12 months in jail and a $2,500 fine. An armed offender, however, commits a Class 2 felony with a possible punishment of 20 years to life in prison and a $100,000 fine.

(Va. Code §§ 18.2-10, -92 (2020).)

Possession of Burglar’s Tools or Implements

A person who possesses any tools or implements with the intent to use them for a burglary commits a Class 5 felony. Such an offense carries penalties of one to ten years in prison or, at the discretion of the judge or jury, 12 months in jail and a $2,500 fine.

(Va. Code §§ 18.2-10, -94 (2020).)

Talk to a Lawyer

If you have been charged with burglary or a related crime, or if you have questions about state laws, consult a qualified local criminal defense attorney. An experienced lawyer can review the unique facts of your situation and advise you on how the law will apply to your case.

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