## Facts

- Timothy Lamont Clark entered a retail store during normal business hours when it was open to the public.
- He asked an employee where the bathroom was located and moved about the store.
- Clark went to the cashier counter, displayed what appeared to be the handle of a gun from his pocket, and demanded money.
- The clerk gave Clark money from the cash drawer; Clark left and was later apprehended.
- The Commonwealth charged robbery, statutory burglary under Va. Code § 18.2-90, and use of a firearm in the commission of robbery.
- Clark pled guilty to robbery, was acquitted of the firearm charge, and was convicted in a bench trial of statutory burglary.

## Issues

1. Whether entering a store open to the public during business hours constitutes “unlawful entry” under Va. Code § 18.2-90 when the entry is made with contemporaneous intent to commit robbery.

## Decision

- The Court of Appeals of Virginia affirmed the statutory burglary conviction.
- The court held that a person who enters a store intending to commit robbery inside “enters unlawfully” for purposes of Va. Code § 18.2-90, even if the store is open to the public.
- The court concluded the evidence permitted the inference that Clark intended to rob the store at the time he entered, satisfying the statute’s unlawful-entry element.

## Legal Principles

- Under Va. Code § 18.2-90, an entry can be “unlawful” even without a traditional trespass or forced entry if the entrant enters with intent to commit a listed felony (including robbery) inside.
- A business’s implied invitation to the public authorizes entry for lawful purposes; entry made solely to commit a felony exceeds the scope of that implied consent and is treated as unlawful under the statute.
- Factfinder may infer intent at the time of entry from the defendant’s conduct and the circumstances surrounding the offense.

## Conclusion

The court upheld Clark’s statutory burglary conviction, ruling that entry into a store open to the public is unlawful under Va. Code § 18.2-90 when made with the intent to commit robbery inside.


Clark v. Commonwealth, 472 S.E.2d 663 (Va. Ct. App. 1996)