Donny Lewis Franklin, Jr. v Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judges Willis and Bumgardner
Argued at Salem, Virginia
DONNY LEWIS FRANKLIN, JR. OPINION BY
v. 	Record No. 3028-97-3 	JUDGE JERE M. H. WILLIS, JR.
DECEMBER 29, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Clifford R. Weckstein, Judge
(Paul F. Fantl; Office of the Public
Defender, on brief), for appellant.
Appellant submitting on brief.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General;
Ruth Ann Morken, Assistant Attorney General,
on brief), for appellee.
On appeal from his conviction in a bench trial for statutory
burglary with intent to commit assault, in violation of Code
§ 18.2-91, Donny Lewis Franklin, Jr., contends that the evidence
fails to prove his entry into the subject premises and, thus, is
insufficient to sustain his conviction. 	We disagree and affirm
the judgment of the trial court.
On appeal, we view 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). 	The judgment of
the trial court sitting without a jury will not be set aside
unless plainly wrong or without evidence to support it. 	Martin
v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

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During the evening of June 30, 1997, Franklin went to the
home of Lashane Turner, his former girlfriend and the mother of
his two children. 	Franklin pounded on the door and threatened to
kill Turner when she refused to admit him. 	She moved a couch in
front of the door. 	However, Franklin managed to break the lock
and splinter the door, and inserted his arm and shoulder through
the opening into Turner's apartment. 	Turner's neighbor, Lisa
Parker, called the police. 	When a security guard arrived,
Franklin fled.
If any person [in the nighttime enters
without breaking or in the daytime breaks and
enters] with intent to commit assault and
battery, he shall be guilty of statutory
burglary . . . .
Code § 18.2-91. 	Franklin contends that because the statute
provides no definition of "entry," it should be read to require
entry of the entire person. 	He argues that because only his arm
and shoulder entered Turner's apartment, the evidence fails to
support his conviction. 	We do not interpret the statute thus.
This case raises an issue of first impression. 	No previous
Virginia case addresses directly what constitutes a burglarious
entry. 	However,
[t]he common law of England, insofar as it is
not repugnant to the principles of the Bill
of Rights and Constitution of this
Commonwealth, shall continue in full force
within the same, and be the rule of decision,
except as altered by the General Assembly.
Code § 1-10. 	Under common law, an entry occurs when any part of
the body enters a dwelling. 	See Roger D. Groot, Criminal

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Offenses and Defenses in Virginia 62 (3d ed. 1994). 	The
legislature has not altered this definition of an entry.
Therefore, Franklin's intrusion of his arm and shoulder into
Turner's apartment constituted an entry under Code § 18.2-91.
The judgment of the trial court is affirmed.
Affirmed.