Present: All the Justices
HOWARD LEWIS VINCENT
v. RECORD NO. 072539 OPINION BY
JUSTICE CYNTHIA D. KINSER
COMMONWEALTH OF VIRGINIA October 31, 2008
FROM THE COURT OF APPEALS OF VIRGNIA
Howard Lewis Vincent was convicted in a bench trial in the
Circuit Court of the City of Alexandria of breaking and
entering with the intent to commit larceny in violation of Code
§ 18.2-91. The sole issue presented on appeal is whether the
evidence was sufficient to prove beyond a reasonable doubt that
Vincent had the intent to commit larceny when he broke into and
entered a retail department store. Because we conclude that
the evidence was insufficient to prove that specific intent, we
will reverse the judgment of the Court of Appeals of Virginia
upholding Vincent’s conviction.
At approximately 6:33 a.m. on June 9, 2005, a male
intruder broke into and entered a then closed retail department
store located in the City of Alexandria. The store was
equipped with a video camera surveillance system that recorded
the intruder’s entrance into the store. 1 The intruder used a
1
The Commonwealth introduced into evidence as one of its
exhibits a compact disc containing video-recorded footage from
the surveillance cameras.
metal pole to shatter the glass in one of the store’s entrance
doors. The metal pole was subsequently found inside the store.
When the manager arrived at the store approximately
30 minutes after the unlawful entry, he discovered the broken
glass. No audible alarm was sounding at that time, but a
police officer arrived soon thereafter in response to a call.
The officer reviewed the surveillance cameras’ video recording
and searched the immediate vicinity for the person observed on
the recording. The search was not productive. Later that day,
however, Vincent was arrested for being intoxicated in public.
The police subsequently recognized Vincent as the intruder seen
on the store’s video recording. The police searched him, but
the search did not reveal any merchandise owned by the retail
department store.
The positioning of the various surveillance cameras in the
store did not allow the cameras to record all of Vincent’s
movements during the approximate four minutes that he remained
in the store. The video-recorded footage did, however, show
Vincent walking past cash registers without stopping and
exiting the premises through the door with the broken glass.
When he left the store, he was not carrying any of the store’s
merchandise, and there were no discernable bulges in his
clothing to suggest that he was concealing merchandise.
Finally, the footage revealed Vincent shoving a shopping cart.
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The store manager testified that the store sells watches,
jewelry, clothes, shoes, household goods, and other “small
items which are very easy to conceal.” Because of the large
inventory, and because the last in-store inventory had been
conducted approximately a year before the incident, the manager
could not state whether Vincent had taken any items. The
manager did affirmatively testify that no cash was missing from
the store. He additionally testified that the shopping cart
Vincent shoved went “almost through” a clothes rack and that
the “merchandise was dispersed.”
At trial, the Commonwealth argued, pursuant to this
Court’s decision in Ridley v. Commonwealth, 219 Va. 834,
252 S.E.2d 313 (1979), that, in the absence of evidence showing
a contrary intent, an inference arises that an unlawful entry
is made with the intent to commit larceny. The trial court
“adopt[ed]” the inference and found Vincent guilty of breaking
and entering with the intent to commit larceny.
On appeal to the Court of Appeals, Vincent argued that the
trial court erred in utilizing that inference because there was
evidence showing a contrary intent at the time of the unlawful
entry, i.e, that Vincent intended only to damage the store’s
merchandise, not to steal it. The Court of Appeals initially
reversed the conviction in an unpublished opinion, with one
judge dissenting. Vincent v. Commonwealth, Record No. 2701-05-
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4 (Jan. 23, 2007) (Haley, J., dissenting). Upon a rehearing en
banc, the Court of Appeals affirmed the trial court’s judgment
and concluded that Vincent’s hypothesis of innocence –
specifically, that “his intent at the time he entered was to
damage property, not to steal property” – was not reasonable
because there was no evidence that any property in the store
had been damaged. Vincent v. Commonwealth, Record No. 2701-05-
4, slip op. at 5-6 (Nov. 20, 2007). Vincent now appeals to
this Court.
On appeal, Vincent’s sole assignment of error challenges
the sufficiency of the evidence to prove that he had the intent
to commit larceny when he broke into and entered the store. 2
Vincent argues, as he did in the trial court and in the Court
of Appeals, that the circumstantial evidence proved only that
he had the intent to vandalize or damage the store and its
merchandise. Thus, according to Vincent, the permissible
inference adopted by the trial court was inapplicable because
there was evidence showing a contrary intent. Furthermore,
Vincent argues that the inference cannot be used to relieve the
Commonwealth of its duty to prove each element of the offense
beyond a reasonable doubt.
2
Vincent does not contest that he was the intruder seen on
the video-recorded footage from the store’s surveillance
cameras.
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Citing this Court’s decision in Ridley, the Commonwealth
contends that the trial court properly relied upon the
permissible inference that Vincent’s breaking into and entering
the retail department store was with the intent to commit
larceny because there was no evidence of a contrary intent. On
oral argument, the Commonwealth, however, agreed that, without
the benefit of the inference, the evidence was insufficient to
prove beyond a reasonable doubt that Vincent had the intent to
commit larceny.
In deciding the question before us, we review the evidence
and all reasonable inferences flowing therefrom in the light
most favorable to the Commonwealth as the prevailing party in
the trial court. Commonwealth v. Hudson, 265 Va. 505, 514,
578 S.E.2d 781, 786 (2003). When a defendant on appeal
challenges the sufficiency of the evidence to sustain a
conviction, we must examine the evidence that supports the
conviction and allow the conviction to stand unless it is
plainly wrong or without evidence to support it. Code § 8.01-
680; Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263,
265 (1998).
The relevant provisions of Code § 18.2-91 state that a
person is guilty of statutory burglary if that person breaks
into and enters any building permanently affixed to realty with
the intent to commit larceny. When a statute, such as Code
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§ 18.2-91, “makes an offense consist of an act combined with a
particular intent, such intent is as necessary to be proved as
the act itself, and it is necessary for the intent to be
established as a matter of fact before a conviction can be
had.” Dixon v. Commonwealth, 197 Va. 380, 382, 89 S.E.2d 344,
345 (1955); accord Patterson v. Commonwealth, 215 Va. 698, 699,
213 S.E.2d 752, 753 (1975). “Intent in fact is the purpose
formed in a person’s mind and may be, and frequently is, shown
by circumstances. It is a state of mind which may be shown by
a person’s conduct or by his statements.” Hargrave v.
Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597, 598 (1974);
accord Johnson v. Commonwealth, 209 Va. 291, 295, 163 S.E.2d
570, 574 (1968).
The trial court relied on the decision in Ridley and the
permissible inference at issue when it found Vincent guilty.
The defendant in Ridley, like Vincent, asserted that the
evidence was insufficient to prove the specific intent to
commit larceny when breaking into and entering a furniture
store. 219 Va. at 835, 252 S.E.2d at 314. The defendant broke
into the building by shattering a window with a large piece of
cinder block and then entered through a large hole in the
window. Id. at 835-36, 252 S.E.2d at 314. The police found
the defendant in a corner of the building. Id. at 836,
252 S.E.2d at 314. The defendant, however, did not have any of
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the store’s merchandise in his possession when the police
apprehended him, and there was no evidence that the defendant
had tampered with or moved any merchandise. Id.
In addressing the defendant’s challenge to the sufficiency
of the evidence to prove his intent to commit larceny, we cited
the principle that “when an unlawful entry is made into a
dwelling of another, the presumption is that the entry was made
for an unlawful purpose, and the specific intent with which
such entry was made may be inferred from the surrounding facts
and circumstances.” Id. (citing Tompkins v. Commonwealth,
212 Va. 460, 461, 184 S.E.2d 767, 768 (1971)). Although the
principle was originally utilized in conjunction with the
burglary of a dwelling, we concluded that it was equally
applicable to the breaking and entering of the storehouse at
issue in Ridley. Id.
Consequently, we held that the evidence was sufficient to
support the inference that the defendant’s unauthorized
presence in the furniture store was with the intent to commit
larceny. Id. at 837, 252 S.E.2d at 315. The “surrounding
facts and circumstances” supporting that inference included
evidence that the defendant had broken into and entered a
closed store containing items of personal property. The
evidence also proved that, although the defendant did not have
any of the store’s merchandise in his possession when the
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police apprehended him, he was still inside the furniture store
at that point. Furthermore, there was no evidence either as to
the length of time the defendant had been in the store or as to
his movements or actions while he was in the building before
the police found him.
That is the factual context in which we then stated: “In
the absence of evidence showing a contrary intent, the trier of
fact may infer that a defendant’s unauthorized presence in a
house or building of another in the nighttime was with the
intent to commit larceny.” Id. at 837, 252 S.E.2d at 314.
However, in Velasquez v. Commonwealth, 276 Va. 326, 661 S.E.2d
454 (2008), this Court rejected the use of a jury instruction
containing such an inference. There, the trial court granted a
jury instruction with regard to a charge of breaking and
entering with the intent to commit rape that read: “In the
absence of evidence showing a contrary intent, you may infer
that a defendant’s unauthorized presence in a building of
another was with the intent to commit rape.” Id. at 328 n.1,
661 S.E.2d at 455 n.1. The Court held the instruction was an
improper comment on the evidence and explained that, while
specific intent may be inferred from the surrounding facts and
circumstances of a burglary, the nature of that specific intent
“is a matter for determination by the fact-finder alone, based
upon the evidence. It is not the function of the court to
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suggest to the jury what conclusion it should draw from the
facts in evidence.” Id. at 330, 661 S.E.2d at 456.
Thus, under a correct reading of Ridley, Tompkins, and
Velasquez, a trier of fact may not reasonably infer the
specific intent to commit larceny merely from the absence of
evidence showing a different intent. Instead, as we stated in
both Ridley and Tompkins, the specific intent with which an
unlawful entry is made “may be inferred from the surrounding
facts and circumstances.” Ridley, 219 Va. at 836, 252 S.E.2d
at 314; Tompkins, 212 Va. at 461, 184 S.E.2d at 768.
In the case before us, the evidence and the reasonable
inferences flowing therefrom, viewed in the light most
favorable to the Commonwealth, proved only that Vincent
forcibly broke into and entered the retail department store by
breaking the glass in an entrance door, that he walked around
in the store for approximately four minutes, that he shoved a
shopping cart into a rack of clothing, and that he exited the
store without touching or tampering with cash registers and
without removing any merchandise. In contrast to the defendant
in Ridley, Vincent was not apprehended while he was in the
store but, instead, several hours later after he had exited the
store. At that time, the police did not find any of the
store’s merchandise on Vincent’s person, and the store manager
could not state whether any merchandise was even missing.
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These facts and circumstances do not support the inference that
Vincent had the specific intent to commit larceny. As we have
explained, such an intent may not reasonably be inferred merely
from the absence of evidence of a different intent. We agree
with Vincent that, to hold otherwise, would relieve the
Commonwealth of its burden to prove each element of the offense
beyond a reasonable doubt.
For these reasons, we conclude that the evidence was not
sufficient to prove beyond a reasonable doubt that Vincent had
the specific intent to commit larceny when he unlawfully broke
into and entered the retail department store. The Court of
Appeals thus erred by affirming the judgment of the trial court
finding Vincent guilty of breaking and entering with the intent
to commit larceny. We will reverse the judgment of the Court
of Appeals of Virginia and dismiss the indictment.
Reversed and dismissed.
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