Burglary conviction when fully masked- Fairfax criminal lawyer’s view

Burglary convictions are possible in Virginia even when the suspect runs out of sight and has his face hidden

Burglary convictions are not automatically avoided merely because the suspect initially ran out of sight, and was masked. As a Fairfax criminal lawyer, I know that such factors as the suspect’s body size, proximity to the burglary location (both in terms of location and time), exhibiting having been running, and unique athletic footwear,

Virginia’s burglary definition

Burglary in Virginia is defined as follows: “If any person commits any of the acts mentioned in § 18.2-90 with intent to commit larceny, or any felony other than murder, rape, robbery or arson in violation of §§ 18.2-77, 18.2-79 or 18.2-80,  or if any person commits any of the acts mentioned in § 18.2-89 or § 18.2-90 with intent to commit assault and battery, he shall be guilty of statutory burglary.”Va. Code § 18.2-91.

Burglary conviction hits Kristopher Davis at his jury trial

If he was the actual burglary perpetrator, Kristopher Davis may have been overconfident that his chances of escaping arrest and conviction for burglary were enhanced by wearing a ski mask. This Virginia burglary story starts with a homeowner whose application software and live cameras revealed a burglary in progress. When police arrived, they confronted the suspect, who was in a ski mask and a unique pair of Air Jordan’s athletic shoes. The suspect ran away.

At subsequent intervals during this burglary investigation, police again encountered the suspect, who successfully ran away. Finally, police nabbed defendant Davis, after calling for him to stop, seeing Davis run away, and catching him not far away after he fell to the ground. When apprehended, Davis was exhausted and sweaty. Davis v. Virginia, Record No. 1010-19-2 (Va. App., May 5, 2020) (unpublished).

A ski mask does not hide one’s physical build, unique athletic shoes, nor all of one’s skin color

Davis’s downfal in this burglary case was that on his first encounter with police, they were able to recall and detail his body build, unique Air Jordans, and skin colro. On top of that, when apprehended, Davis instead ran and collapsed to the ground. The factfinder at trial is permitted to consider flight by the criminal defendant as consciousness of guilt.

Surveillance footage was not helpful to Davis’s criminal court plight

Additionally in this prosecution, the jury had an opportunity at trial to review moving and still images from the burglary scene, to compare the burglar shown therein with defendant Davis as he sat in the courtroom. The Virginia Court of Appeals affirmed Davis’s conviction, and did reconfirm that identity of a criminal perpetrator may be proven either directly or by circumstantial evidence. Davis. 

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor, and DUI prosecutions. Call 703-383-1100 to meet for free with Jon Katz about your court-pending criminal or DWI case.