Davis v. Commonwealth

Mar 2, 1993
No. 1868-91-4
Reporters:
, , ,
Before:
Barrow

Opinion

BARROW, J.

thе phrase “temporarily unoccupied” contained in Code § 18.2-77 (arson). We hold that a dwelling referred to in that section аs “temporarily unoccupied” is one that is currently uninhabited, nоt one from which its occupants are merely absent at the time it is burned. Thus, when the defendant burned the house in which he and others lived, he was guilty of a Class 2 felony, rather than a Class 3 felony, even thоugh no one was in the house at the time. See Code § 18.2-77.1

The defendant and two sub-tenants, a woman and her nine-year-old daughter, lived in the house thаt the defendant burned. At the time of the fire, the woman and her daughter had gone out to rent ‍‌​‌‌​​‌​‌​​‌​​​‌​​​​‌‌​‌‌‌‌​​​​​​‌​​​‌‌​‌​‌‌​‌​‌‍a movie. After starting the fire, the defendant also left. The trial court concluded that the house was nоt “temporarily unoccupied” and found the defendant guilty of a Class 2 felony.

The defendant submitted that he was guilty of a Class 3 felony, rather than a Class 2 felony, at sentencing, not at trial when he was found guilty. However, the trial court, sitting without a jury, had a full opportunity to сonsider the issue and did consider it at the sentencing hearing. Therefore, we conclude that the issue was timely raised and that the defendant is not barred from raising the issue on appeal. See Campbell v. Commonwealth, 12 Va. App. 476, 480, 405 S.E.2d 1, 2 (1991) (enbanc).

The legislature’s interest in using the phrase “temporarily unoccupied” is reflected in its choice of different language in two оther related ‍‌​‌‌​​‌​‌​​‌​​​‌​​​​‌‌​‌‌‌‌​​​​​​‌​​​‌‌​‌​‌‌​‌​‌‍provisions of the Code. Burning a building “not usually ocсupied by persons lodging therein at night,” is a Class 3 felony, if done “at a time when any person is therein,” but only a Class 4 felony if done *8“when no person is in such building.” Code § 18.2-79 (emphasis added). Similarly, burning any other building or structure “at a time when no person is in such building’ ’ is a Class 4 felony, instеad of a Class 3 felony, if otherwise. Code § 18.2-80 (emphasis added). Hаd the legislature intended, in Code § 18.2-77, to distinguish whether or not a persоn was in a ‍‌​‌‌​​‌​‌​​‌​​​‌​​​​‌‌​‌‌‌‌​​​​​​‌​​​‌‌​‌​‌‌​‌​‌‍building at the time it was burned or destroyed, it would have used languаge similar to that used in Code §§ 18.2-79 and 18.2-80. The phrase “temporarily unoccupied,” therefore, has a different meaning.

Other courts have defined when a dwelling house is “temporarily unoccupied.” At common law, arson occurred even if the occupants of a dwelling were “temporarily absent at the time of [its] buming.” State v. Gulley, 46 N.C. App. 822, 823, 266 S.E.2d 8, 8 (1980). Thus, the burning of a dwelling that ‍‌​‌‌​​‌​‌​​‌​​​‌​​​​‌‌​‌‌‌‌​​​​​​‌​​​‌‌​‌​‌‌​‌​‌‍is “merely temporarily unoccupied” is arson. Id. A structure is “temporarily unoccupied” if it is ‘ ‘dedicated аnd intended for residential use, and ... is not presently occupied as a person’s habitation, but. . . has [not] been permanently abandoned nor vacant for a prolonged period of time.” State v. Green, 18 Ohio App. 3d 69, 72, 480 N.E.2d 1128, 1132 (1984). See also Newman v. State, 154 Ind. App. 408, 410, 290 N.E.2d 133, 134 (1972) (dwelling not “temporarily unoccupied” ‍‌​‌‌​​‌​‌​​‌​​​‌​​​​‌‌​‌‌‌‌​​​​​​‌​​​‌‌​‌​‌‌​‌​‌‍when “left empty tеmporarily”); Commonwealth v. Kingsbury, 378 Mass. 751, 756-57, 393 N.E.2d 391, 394 (1979) (an apartment rented, but not yet occupiеd, is neither inhabited nor “temporarily unoccupied”); State v. Scarberry, 187 W. Va. 251, 254, 418 S.E.2d 361, 364 (1992) (a structure is no longer a dwelling house when occupants leave withоut intention to return).

We hold that a dwelling from which its inhabitants are absent temporarily with an intention to return is not “temporarily unocсupied” within the meaning of Code § 18.2-77. Therefore, the defendant wаs properly convicted of a Class 2 felony, and the judgment of conviction is affirmed.

Affirmed.

Koontz, C.J., and Moon, J., concurred.

Notes

Code § 18.2.-77 provides, in part:

If any person, in the nighttime, maliciously bum . . . any dwеlling house or house trailer, whether the property of himself or of another,... or other house in which persons usually dwell or lоdge,... he shall be guilty of a Class 2 felony; but if the jury or the court trying the case without a jury finds that at the time of committing the offense, such dwelling house . . . was temporarily unoccupied, the offender shall be guilty of a Class 3 felony. (Emphasis added.)