COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia
DONNIE LEE BRUCE
OPINION BY
v. Record No. 0931-95-2 JUDGE LARRY G. ELDER
APRIL 16, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
Paul M. Peatross, Jr., Judge
Denise Y. Lunsford (Michie, Hamlett, Lowry,
Rasmussen & Tweel, P.C., on brief), for
appellant.
Monica S. McElyea, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Donnie Lee Bruce (appellant) appeals his conviction for
breaking and entering his estranged wife's residence armed with a
deadly weapon, with the intent to commit assault, in violation of
Code § 18.2-91. 1 Appellant contends that the evidence was
insufficient to prove the elements of the charge. Disagreeing
with appellant, we affirm his conviction.
I.
FACTS
Appellant and Deborah Bruce (Deborah), although married,
lived in separate residences during late 1993. Deborah lived
1
Code § 18.2-91 states, "[I]f any person commits any of
the acts mentioned in § 18.2-90 with intent to commit larceny,
assault and battery or any felony other than murder, rape or
robbery, he shall be guilty of statutory burglary."
with the couple's son, Donnie Bruce, Jr. (Donnie) and Donnie's
girlfriend at Greenfield Trailer Park in Albemarle County,
Virginia. Although appellant stayed with Deborah at the
residence during a period of time in September or October of
1993, his name was not on the lease, he was not given a key to
the residence, and he did not have permission to enter the
residence at the time of the alleged offense.
On December 5, 1993, at approximately 2:00 p.m., Deborah,
Donnie, and Donnie's girlfriend left their residence. Earlier
that morning, Donnie told appellant that Deborah would not be
home that afternoon. Upon departing, Donnie and Deborah left the
front door and front screen door closed but unlocked. The front
door lacked a knob but had a handle which allowed the door to be
pulled shut or pushed open.
After Deborah, Donnie, and Donnie's girlfriend left their
residence, a witness observed appellant drive his truck into the
front yard of the residence and enter through the front door
without knocking. Appellant testified, however, that he parked
his truck in the lot of a nearby supermarket and never parked in
front of the residence. Appellant stated that the front screen
door was open and that the front door was open three to four
inches when he arrived. Appellant testified that he gently
pushed the front door open to gain access and entered the
residence to look for Donnie.
While preparing to leave the residence, appellant answered a
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telephone call from a man with whom Deborah was having an affair.
The conversation angered appellant, and he threw Deborah's
telephone to the floor, breaking it. Appellant stated that he
then exited through the residence's back door, leaving the door
"standing open," and retrieved a .32 automatic gun from his
truck, which was parked in the nearby supermarket parking lot.
Appellant returned to the residence through the open back door.
Appellant, who testified that he intended to shoot himself with
the gun, went to Deborah's bedroom, lay on her bed, and drank
liquor.
When Deborah, Donnie, and Donnie's girlfriend returned to
their residence, appellant's truck was not parked in the front
yard. Upon entering the residence, Donnie saw that someone was
in the bathroom, with the door closed and the light on. When
police arrived soon thereafter, they found appellant passed out
on Deborah's bed and arrested him.
On May 24, 1994, a jury in the Circuit Court of Albemarle
County convicted appellant of breaking and entering a residence,
while armed with a deadly weapon, with the intent to commit
assault. Appellant appealed to this Court.
II.
PROOF OF REQUISITE ELEMENTS
In order to convict appellant of the crime charged, the
Commonwealth had to prove that appellant broke and entered into
his wife's residence with the intent to assault her with a deadly
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weapon. Under the facts of this case, the Commonwealth satisfied
this burden.
Breaking, as an element of the crime of
burglary, may be either actual or
constructive. . . . Actual breaking involves
the application of some force, slight though
it may be, whereby the entrance is effected.
Merely pushing open a door, turning the key,
lifting the latch, or resort to other slight
physical force is sufficient to constitute
this element of the crime.
Bright v. Commonwealth, 4 Va. App. 248, 252, 356 S.E.2d 443, 445
(1987)(quoting Johnson v. Commonwealth, 221 Va. 872, 876, 275
S.E.2d 592, 594-95 (1981))(emphasis added). "Where entry is
gained by threats, fraud or conspiracy, a constructive breaking
is deemed to have occurred." Jones v. Commonwealth, 3 Va. App.
295, 299, 349 S.E.2d 414, 416-17 (1986)(emphasis added). "[A]
breaking, either actual or constructive, to support a conviction
of burglary, must have resulted in an entrance contrary to the
will of the occupier of the house." Johnson, 221 Va. at 876, 275
S.E.2d at 595 (emphasis added).
Appellant's initial entry into Deborah's residence
constituted an actual breaking and entering. Sufficient credible
evidence proved that appellant applied at least slight force to
push open the front door and that he did so contrary to his
wife's will. However, as the Commonwealth concedes on brief,
appellant did not possess the intent to assault his wife with a
deadly weapon at this time. The Commonwealth bears the burden of
"proving beyond a reasonable doubt each and every constituent
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element of a crime before an accused may stand convicted of that
particular offense." Martin v. Commonwealth, 13 Va. App. 524,
529, 414 S.E.2d 401, 403 (1992)(en banc)(citing Jackson v.
Virginia, 443 U.S. 307, 315-16 (1979)). The Commonwealth
therefore had to prove appellant intended to assault his wife
when he re-entered the residence with his gun.
We hold that the Commonwealth presented sufficient credible
evidence to prove the crime charged. On the issue of intent, the
jury reasonably could have inferred that the phone call from
Deborah's boyfriend angered appellant, resulting in his
destruction of the telephone and the formation of an intent to
commit an assault with a deadly weapon upon Deborah. Viewed in
the light most favorable to the Commonwealth, credible evidence
proved that appellant exited the back door of the residence,
leaving the door open, moved his truck to a nearby parking lot,
and re-entered the residence carrying a gun with the intent to
assault Deborah.
Well-established principles guide our analysis of whether
appellant's exit and re-entry into the residence constituted an
actual or constructive breaking. As we stated above, an
"[a]ctual breaking involves the application of some force, slight
though it may be, whereby the entrance is effected." Bright, 4
Va. App. at 252, 356 S.E.2d at 444 (quoting Johnson, 221 Va. at
876, 275 S.E.2d at 594)(emphasis added). "In the criminal law as
to housebreaking and burglary, [breaking] means the tearing away
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or removal of any part of a house or of the locks, latches, or
other fastenings intended to secure it, or otherwise exerting
force to gain an entrance, with criminal intent . . . ." Black's
Law Dictionary 189 (6th ed. 1990). Virginia, like most of our
sister states, follows the view that "breaking out of a building
after the commission of a crime therein is not burglary in the
absence of a statute so declaring." 13 Am. Jur. 2d Burglary
§ 14, at 329 (1964)(footnote omitted). 2 In this case, appellant
exited the back door of the residence on his way to retrieve the
2
"This is true because a common-law burglary required the
breaking to be for the purpose of effecting an entrance, and not
for the purpose of escape. [One state has held], however, that
under the common law it is burglary to break out after the
commission of the felony, and that the precise order in which the
acts are done is not material." 13 Am. Jur. 2d Burglary § 14, at
329 (1964)(citing State v. Ward, 43 Conn. 489 (1876)).
As one noted scholar writes:
It was disputed whether one who gained
entry without a breaking, but committed a
breaking in order to leave, was guilty of
burglary. The correct view was that of Hale,
who explained that the burglary indictment
charged "fregit intravit" (breaking and
entering), so that "fregit & excivit"
(breaking and leaving) would not suffice.
This would also be in accord with the
rationale for requiring a breaking as part of
the offense. . . . In this country, courts
have continued to follow the original
distinction in defining what constitutes a
sufficient breaking.
Wayne R. LaFave, Handbook on Criminal Law § 96, at 709 (1972)
(citations omitted). See also Charles E. Torcia, Wharton's
Criminal Law § 319, at 231 (1995)(stating that the American
common law has not recognized the principle that a defendant who
breaks out of a house is guilty of burglary).
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gun from his truck. In doing so, the appellant did not break for
the purpose of escaping or leaving. Rather, by opening the
closed door, he broke in order to facilitate his re-entry. At
the time he committed the breaking, he did so with the intention
of re-entering after retrieving his firearm. Although appellant
used no force to effect his re-entry into the residence, he used
the force necessary to constitute a breaking by opening the
closed door on his way out. Even though no prior case involves
facts similar to the instant case, the breaking and the entry
need not be concomitant, so long as the intent to commit the
substantive crime therein is concomitant with the breaking and
entering. 3
Sound reasoning supports the conclusion that a breaking from
within in order to facilitate an entry for the purpose of
committing a crime is sufficient to prove the breaking element of
burglary. The gravamen of the offense is breaking the close or
the sanctity of the residence, which can be accomplished from
within or without. A breaking occurs when an accomplice opens a
locked door from within to enable his cohorts to enter to commit
a theft or by leaving a door or window open from within to
facilitate a later entry to commit a crime. Professor LaFave
states, "if one gained admittance without a breaking but
3
See Torcia, Wharton's Criminal Law § 321, at 247 ("The
breaking and entering need not occur on the same night; the
defendant may break on one night and enter on another night, so
long as he enters through the opening made by his prior break.").
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committed a breaking once inside, there could be no burglary
unless there then was an entry through this breaking . . . [and]
the entry may be separate in time from the breaking." Wayne R.
LaFave, Handbook on Criminal Law § 96, at 711 (1972).
Accordingly, a breaking occurred when appellant opened the
back door of the victim's residence, even though the breaking was
accomplished from within. Thus, because the evidence was
sufficient to prove an intent to commit assault at the time of
the breaking and the entering, the Commonwealth proved the
elements of the offense. Thus, we affirm appellant's conviction.
Affirmed.
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