Jones v. Com., 0923-85

• Decision Date: 21 October 1986
• Docket Number: No. 0923-85,0923-85
• Citation: 3 Va.App. 295,349 S.E.2d 414
• Parties: Anthony JONES v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 414

349 S.E.2d 414

3 Va.App. 295

Anthony JONES v. COMMONWEALTH of Virginia.

Record No. 0923-85.

Court of Appeals of Virginia.

Oct. 21, 1986.

Robert P. Geary (Geary and Davenport, Richmond, Va., on brief), for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Richmond, Va., on brief), for appellee.

Present: BAKER, COLE and DUFF, JJ.

JOSEPH E. BAKER, Judge.

Anthony Jones (appellant) was indicted and convicted in a bench trial in the Circuit Court of the City of Richmond of statutory burglary (§ 18.2-91) ¹ and grand larceny (§ 18.2-95) ². He appeals from an order of that court affirming the verdicts.

Appellant asserts two issues on this appeal: (1) whether the evidence showed an unlawful entry as required by Code § 18.2-91; and (2) whether the grand larceny conviction is supported by the evidence in that the Commonwealth failed to prove that any property was removed from inside the building entered. The effect of appellant's assertion is that the evidence was insufficient to prove an element of each offense.

When the sufficiency of the evidence is challenged, the judgment of the trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be disturbed on appeal unless plainly wrong or without evidence to support it. Evans v. Commonwealth, 215 Va. 609, 613, 212 S.E.2d 268, 271 (1975). The evidence must be viewed in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Id. at 612, 212 S.E.2d at 271. The record discloses that on December 5, 1981, at 11:47 p.m., Officer Anderson received a radio message that a silent alarm had activated in a Memco department store. He immediately went to the store, examined all of the exterior doors and found them to be secure. He then summoned Memco's night manager who responded and opened the front door. Upon their entry into the store, they found bags of potato chips strewn about the floor, boxes lying in an aisle, and a pried open gun rack from which two guns were missing.

As they looked about the store, Officer Anderson discovered appellant and another man as they emerged from a storage area located in the rear of the store. Anderson arrested them, gave them Miranda warnings, and inquired as to how they gained entry into the store. They responded that they entered the store before closing and secreted themselves in the storeroom where they remained until the store closed, at which time they intended to do "a little Christmas shopping." At the time of their arrest each was wearing a new jacket and shoes which belonged to Memco.

A search of the storeroom revealed several duffel bags which were filled with merchandise removed from other areas of the store, the two guns missing from the broken rack and two bicycles. The door which led from the storeroom to the outside was locked with a steel bar and a padlock. It had pry marks on it and lying near the door was a bent crowbar. Anderson stated that it appeared to him that the crowbar was used in an attempt to pry the door open from the inside.

The store manager stated he closed the door earlier that evening and that he had not given appellant permission to remain in the store, nor to move the various items from their several in-store locations to the storeroom. He estimated that the value of the moved merchandise was $1,300.

I. BREAKING AND ENTERING

Appellant first argues that it was error for the trial court, from these facts, to infer or hold that there was a "breaking and entering" within the meaning of Code § 18.2-91, because there was no attempt to steal during regular store hours. While we may agree that appellant did not attempt to remove the goods from the store until it closed for business, we do not agree that such fact precludes the conviction. The intent to steal was formulated prior to the time appellant and his codefendant entered the store, and such intent, when combined with the method of entry, is sufficient to sustain the conviction.

Where entry is gained by threats, fraud or conspiracy, a constructive breaking is deemed to have occurred. Davis v. Commonwealth, 132 Va. 521, 523, 110 S.E. 356, 357 (1922); Clarke v. Commonwealth, 66 Va. (25 Gratt.) 908 (1874). Thus, breaking may be actual or constructive. Johnson v. Commonwealth, 221 Va. 872, 876, 275 S.E.2d 592, 594 (1981).

Code § 18.2-91 provides, in pertinent part, that if any person enter a storehouse in the nighttime "with intent to commit larceny, or any felony other than murder, rape or robbery, he shall be deemed guilty of statutory burglary; ..."

It is elementary that where, as here, the statute makes an offense consist of an act combined with a particular intent, proof of such intent is as necessary as proof of the act itself and must be established as a matter of fact.

Intent is the purpose formed in a person's mind which may, and often must, be inferred from the facts and circumstances in a particular case. The state of mind of an alleged offender may be shown by his acts and conduct.

In Tompkins v. Commonwealth, 212 Va. 460, 461, 184 S.E.2d 767, 768 (1971), the defendant was convicted of breaking and entering a dwelling house in the nighttime with intent to commit murder. There, we said 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. This same principle is equally applicable to breaking and entering a storehouse in the nighttime with intent to commit larceny.

The rule, as applied in most jurisdictions, is that in a prosecution of burglary with intent to commit larceny, the state must prove the specific intent to steal beyond a reasonable doubt, although it may and frequently must prove such intent by the facts and circumstances. 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 intent to commit larceny.

Ridley v. Commonwealth, 219 Va. 834, 836-37, 252 S.E.2d 313, 314 (1979) (citations omitted).

Appellant concedes that Davis v. Commonwealth, 132 Va. 521, 110 S.E. 356 (1922), holds that there can be a constructive breaking and entry, but asserts that Davis further provides that the breaking must be "contrary to the will of the owner." He avers that at the time of the actual entry on the premises the owner was inviting the public to enter and, therefore, his entry was not against the owner's will. We disagree. Where a store owner invites the public to enter his premises he consents for the entrant to view his merchandise for the limited purpose of purchase, or to otherwise engage in a lawful activity thereon. It is not the will of the owner that entrance be made to defraud or steal from him. The consent to entry expires at the close of business and an invitee's presence on the premises thereafter, without the knowledge or consent of the owner, constitutes a form of entry by fraud and deception when the original entry was made with intent to steal.

The facts of this record disclose that appellant entered the Memco store under the pretense that he was a prospective customer. He then secreted himself on the premises until the store closed for business at which time, without permission of the owner, he attempted to remove property from the store without paying for it. The acts, conduct and...