Clark v. Commonwealth
22 Va. App. 673, 472 S.E.2d 663 (1996)
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Rule of Law:
An individual's entry into a commercial establishment, open to the public, is unlawful for the purposes of statutory burglary if the entry is made with the intent to commit a felony therein, because the owner's general invitation does not extend to those with criminal intent.
Facts:
- On February 21, 1994, at 8:00 p.m., Timothy Lamont Clark entered the Kentuck Grocery during its regular business hours.
- Clark asked a store employee where the bathroom was located.
- After returning from the bathroom, Clark approached the counter and pulled an object from his pocket that appeared to be the butt of a gun.
- Clark demanded money, stating, “open it up and I mean now,” followed by, “let me have it all.”
- The employee gave Clark all the money from the cash drawer.
- Clark later confessed to the police that he had committed the robbery but denied using a real gun.
Procedural Posture:
- Timothy Lamont Clark was indicted in a Virginia trial court on charges of robbery, statutory burglary, and use of a firearm in the commission of robbery.
- Clark pled guilty to robbery but pled not guilty to statutory burglary and use of a firearm.
- Following a bench trial, the trial court judge found Clark guilty of statutory burglary.
- The trial court judge found Clark not guilty of use of a firearm in the commission of robbery.
- Clark, the appellant, appealed his statutory burglary conviction to the Court of Appeals of Virginia.
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Issue:
Does a person's entry into a store, open to the public during regular business hours, constitute an unlawful entry for the purposes of statutory burglary under Code § 18.2-90 if the person enters with the intent to commit robbery?
Opinions:
Majority - Moon, C.J.
Yes. A person who enters a store with the intent to commit robbery enters unlawfully for the purposes of statutory burglary. The plain language of Code § 18.2-90, which penalizes one who 'enters without breaking,' specifically eliminates the common law requirement of a physical breaking. The court reasoned that a store owner’s invitation to the public is for the limited purpose of lawful activities, such as making a purchase. This implied consent does not extend to an individual who enters with the intent to steal or commit robbery. Citing precedent, the court affirmed that it would be an 'impeachment of the common sense of mankind' to suggest a thief enters a store with the owner’s consent. Therefore, Clark’s entry, when coupled with his contemporaneous intent to rob, satisfied the elements of statutory burglary.
Dissenting - Benton, J.
No. An entry into a public business during its operating hours is not an unlawful entry under the burglary statute, even if accompanied by a felonious intent. At common law, consent to enter was a complete defense to burglary, as the crime required an entry contrary to the will of the occupier. Statutes that override the common law must do so with plain and manifest intent. While the Virginia statute plainly eliminated the requirement of a forceful 'breaking,' it did not explicitly eliminate the common law defense of a consensual or invited entry. The statute’s separate prohibition of 'entering and concealing oneself' suggests the legislature contemplated scenarios of lawful initial entry, which would be redundant if 'enters' alone covered invitees with criminal intent. The majority's interpretation improperly expands the crime of burglary through judicial legislation and creates absurd results.
Analysis:
This decision significantly expands the scope of statutory burglary in Virginia by shifting the focus from the physical nature of the entry to the defendant's state of mind at the moment of entry. It establishes that an otherwise lawful and permissive entry into a public place can be rendered unlawful based on the entrant's secret criminal intent. This precedent lowers the prosecutorial burden, as proving a physical trespass is no longer necessary; instead, prosecutors need only prove that the defendant entered with the requisite felonious intent. The ruling effectively merges the actus reus (the act of entering) with the mens rea (the criminal intent), making it easier to convict individuals of both robbery and burglary for the same criminal transaction.
