Vincent v. Com.

• Decision Date: 31 October 2008
• Docket Number: Record No. 072539.
• Citation: 276 Va. 648,668 S.E.2d 137
• Court: Virginia Supreme Court
• Parties: Howard Lewis VINCENT v. COMMONWEALTH of Virginia.

668 S.E.2d 137

276 Va. 648

Howard Lewis VINCENT v. COMMONWEALTH of Virginia.

Record No. 072539.

Supreme Court of Virginia.

October 31, 2008.

Joan C. Robin, Senior Assistant Public Defender, for appellant.

Benjamin H. Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice CYNTHIA D. KINSER.

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 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.

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. 2701-05-4, 2007 WL 142871 (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, 2007 WL 4103812 (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.

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 § 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...