## Facts

- Lacy Johnson went with a group of men to an apartment occupied by Brenda Broadnax and her family; a member of the group sought to fight Broadnax’s son over a prior altercation.
- Broadnax refused entry; someone in the group kicked the front door open.
- Broadnax shut and re-locked the door, fled with her family through another exit, and contacted police.
- Returning with police, the family found the door broken, extensive damage to the apartment and personal property, and some items missing.
- Johnson was charged with statutory burglary and petit larceny; testimony conflicted on whether Johnson broke in and whether he entered the apartment.
- After a bench trial, the court acquitted Johnson of petit larceny and convicted him of the lesser-included offense of breaking and entering with intent to commit a misdemeanor under Virginia’s statutory burglary scheme.

## Issues

1. Whether Virginia’s statutory burglary/breaking-and-entering offense involving a “dwelling” requires proof that the residence was physically occupied at the moment of the breaking and entry when occupants temporarily fled due to threats.

## Decision

- The Court of Appeals of Virginia affirmed the conviction.
- The court held the apartment did not lose its character as a “dwelling” because the lawful occupants temporarily vacated it in response to fear or immediate danger.
- The occupants’ absence at the precise moment of entry did not negate the dwelling element of the offense.

## Legal Principles

- For Virginia statutory burglary and related breaking-and-entering offenses, a “dwelling” is determined by the premises’ character and use as a place of human habitation, not by actual presence of occupants at the instant of entry.
- Temporary absence—including flight caused by threats or fear—does not convert an occupied residence into a non-dwelling; abandonment is materially different.
- Statutory interpretation should avoid unreasonable results that would exempt from burglary liability those who drive occupants out and then immediately enter.

## Conclusion

The court affirmed Johnson’s conviction, concluding that a residence remains a “dwelling” under Virginia burglary statutes despite the occupants’ brief, threat-induced departure before entry, and therefore physical occupancy at the moment of entry is not an element the Commonwealth must prove.


Johnson v. Commonwealth, 444 S.E.2d 559 (Va. Ct. App. 1994)