Vincent v. Commonwealth, Record No. 2701-05-4 (Va. App. 11/20/2007)

Decision Date20 November 2007
Docket NumberRecord No. 2701-05-4.
CourtVirginia Court of Appeals
PartiesHOWARD LEWIS VINCENT, JR. v. COMMONWEALTH OF VIRGINIA.

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

Benjamin Katz, Assistant Attorney General (Robert F. McDonnell, Attorney General; Deana A. Malek, Assistant Attorney General, on brief), for appellee.

Present: Chief Judge Felton, Judges Elder, Frank, Humphreys, Clements, Kelsey, McClanahan, Haley, Petty and Beales, Benton and Senior Judge Annunziata.

MEMORANDUM OPINION*

JUDGE JAMES W. HALEY, JR.

I. PROCEDURAL BACKGROUND

This matter comes before the Court from an unpublished divided panel opinion rendered on January 23, 2007 [07 Vap UNP 2701054 (2007)]. That opinion reversed the trial court. By order entered April 30, 2007, we granted the Commonwealth's petition for rehearing en banc, stayed the mandate of the divided panel, and reinstated the appeal.

Howard Lewis Vincent, Jr. was convicted in a bench trial of breaking and entering with the intent to commit larceny in violation of Code § 18.2-91. He challenges only the sufficiency of the evidence supporting the intent with which he admittedly broke and entered.1 Finding that evidence sufficient, we affirm.

II. FACTS

At approximately 6:33 a.m. on June 9, 2005, an intruder broke into the then closed Ross Store on North Washington Street in Alexandria. The store's security cameras recorded the perpetrator entering the store by breaking a glass door with a metal pole and stepping inside the store. The metal pole was found in the store. The store was also equipped with an audible alarm system designed to sound when the store's entrance was breached or movement was detected within the store. When the audible alarm system was tripped, a message was sent to the security company, which then contacted the police. The security camera recorded some of the intruder's actions once inside, but was so located that for a number of minutes the intruder was not in view. The recorded view does not show the intruder putting anything in his pockets. The camera did, however, show the intruder leaving through the broken door at approximately 6:44 a.m. The police arrived shortly thereafter and reviewed the security video, but a search of the immediate neighborhood was not productive.

The store sells, among other merchandise, watches, jewelry, household goods, and other "small items, which are very easy to conceal." Because of a large inventory, and because the last in-store inventory had been taken one year before the break-in, the store manager could not testify whether any item or items had, or had not, been stolen. The manager also testified that a shopping cart had been pushed "almost through" a rack of jeans and that that "merchandise was dispersed."

At 5:53 p.m. on the day of the breaking and entering, Vincent was arrested for being drunk in public next to a 7-Eleven in the City of Alexandria. The police later that day recognized him from the security camera tape, and he was arrested for the burglary. No property identifiable as coming from Ross was found in his possession. Vincent did not testify, and here does not contest that he was the individual on that tape.

At trial, the Commonwealth argued that, pursuant to Ridley v. Commonwealth, 219 Va. 834, 252 S.E.2d 313 (1979), an inference arises, in the absence of evidence showing a contrary intent, that an unlawful entry is made with the intent to commit larceny. The trial court concluded: "I adopt the permissible inference."

III. STANDARD OF REVIEW

Under our standard of review, we view the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786, cert. denied, 540 U.S. 972 (2003); see also Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980), cert. denied, 450 U.S. 1029 (1981); Pryor v. Commonwealth, 50 Va. App. 42, 46, 646 S.E.2d 21, 23 (2007). We "examine the evidence that tends to support the conviction and . . . permit the conviction to stand unless . . . [it] is plainly wrong or without evidentiary support." Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998); see also Ford v. Commonwealth, 48 Va. App. 262, 265, 630 S.E.2d 332, 334 (2006). As here specifically relevant are the principles that "'[w]hether the required intent exists is generally a question for the trier of fact,'" Crawley v. Commonwealth, 25 Va. App. 768, 773, 494 S.E.2d 505, 507 (1997) (quoting Nobles v. Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977)), and that "[t]he fact finder may draw reasonable inferences from the evidence that the perpetrator intended to commit one felony rather than another," Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 609 (1981).

Further, under these standards, this Court "does not `ask itself whether it believes that the evidence at trial established guilt beyond a reasonable doubt.'" Myers v. Commonwealth, 43 Va. App. 113, 118, 596 S.E.2d 536, 538 (2004) (emphasis in original) (quoting Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003)). Rather, with proper deference, we inquire "whether `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Haskins v. Commonwealth, 44 Va. App. 1, 7, 602 S.E.2d 402, 405 (2004) (emphasis added) (quoting Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc)). "`This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence and to draw reasonable inferences from basic facts to ultimate facts.'" Burrell v. Commonwealth, 50 Va. App. 72, 85, 646 S.E.2d 35, 42 (2007) (quoting Kelly, 41 Va. App. at 257-58, 584 S.E.2d at 447). Thus, we do not "substitute our judgment for that of the trier of fact" even if our opinion were to differ with that judgment. Wactor v. Commonwealth, 38 Va. App. 375, 380, 564 S.E.160, 162 (2002).

IV. ANALYSIS

"`[W]hen an unlawful entry is made into a dwelling, the presumption is that the entry was made for an unlawful purpose.'"2 Black, 222 Va. at 840, 284 S.E.2d at 609 (quoting Tompkins v. Commonwealth, 212 Va. 460, 461, 184 S.E.2d 767, 768 (1971)). "This principle applies equally to business premises." Hucks v. Commonwealth, 33 Va. App. 168, 175, 531 S.E.2d 658, 661 (2000); see also Ridley, 219 Va. at 836, 252 S.E.2d at 314.

"The specific purpose, meaning specific intent, with which such an entry is made may be inferred from the surrounding facts and circumstances." Scott v. Commonwealth, 228 Va. 519, 524, 323 S.E.2d 572, 575 (1984). "Intent is the purpose formed in a person's mind at the time an act is committed." Commonwealth v. Taylor, 256 Va. 514, 519, 506 S.E.2d 312, 314 (1998); see also Guill v. Commonwealth, 255 Va. 134, 140, 495 S.E.2d 489, 492 (1998). "Although the Commonwealth may prove by circumstantial evidence the specific intent to steal, that proof must be, as in all criminal cases, beyond a reasonable doubt." Maynard v. Commonwealth, 11 Va. App. 437, 452, 399 S.E.2d 635, 644 (1990) (en banc). However, "[i]n the absence of evidence showing a contrary intent, the trier of fact may infer that the defendant's unauthorized presence in . . . [the] building of another . . . was with intent to commit larceny." Ridley, 219 Va. at 837, 252 S.E.2d at 314 (citations omitted) (emphasis added). This Court has frequently cited the Ridley inference. See Slaughter v. Commonwealth, 49 Va. App. 659, 667, 644 S.E.2d 89, 92 (2007); Hucks, 33 Va. App. at 178, 531 S.E.2d at 662; Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

Vincent's argument may be succinctly stated: the trial court erred in applying the Ridley inference because there was evidence showing a contrary intent at the time of his unlawful entry, that evidence being that Vincent's purpose, or his intent, at the time he entered was to damage property, not to steal property.3 The problem with this argument, however, is that the record shows no evidence that property within the store was damaged in any way or in any amount. The only relevant evidence was that a shopping cart had been pushed into a rack of jeans and the "merchandise was dispersed."4

Likewise in support of this hypothesis, Vincent writes on brief: "[T]he facts . . . surrounding Mr. Vincent's entry into the store suggested an intent to vandalize the Ross store." We do not find this argument persuasive. The means by which a person breaks into a store is not the determining factor as to his intent once within the store. Indeed, the circumstances of the breaking here are strikingly similar to those employed in Ridley, where that Court found an intent to commit larceny proven. There, "the police officers found that a plate glass window . . . had been broken. The hole was large enough for a man to walk through. The window apparently had been broken by a large piece of cinder block which was found . . . just inside the broken window." Ridley, 219 Va. at 835, 252 S.E.2d at 313. Moreover, had it been appellant's intent to damage property within the store, he possessed the instrument to do so—the metal pole he used to break in, but dropped immediately upon entry.

Finally, Vincent argues that his hypothesis is a reasonable one consistent with his innocence. We concede there is a hypothesis. We do not agree it is a reasonable one upon the uncontested facts. As the Virginia Supreme Court has explained:

We place too great a burden on the Commonwealth if we require it to exclude every possible theory or surmise presented by the defense. Our precedents do not require this. The hypotheses which the prosecution must reasonably...

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