                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Alston and Senior Judge Coleman
Argued at Richmond, Virginia


LOGAN BOURNE
                                                                 MEMORANDUM OPINION * BY
v.     Record No. 1017-11-2                                       JUDGE SAM W. COLEMAN III
                                                                         MAY 22, 2012
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                               Samuel E. Campbell, Judge

                 John A. Kirkland (Law Offices of David L. Cloninger, on brief), for
                 appellant.

                 Steven A. Witmer, Senior Assistant Attorney General (Kenneth T.
                 Cuccinelli, II, Attorney General, on brief), for appellee.


       Logan Bourne (appellant) appeals from his bench trial conviction for attempted burglary

with the intent to commit larceny, assault and battery, or a felony other than rape, robbery or

arson in violation of Code §§ 18.2-91 and 18.2-26. On appeal, he contends the evidence was

insufficient to prove: (1) he attempted to enter the building, or (2) he had the requisite intent to

commit larceny or any of the other predicate offenses included in Code § 18.2-91. We conclude

that the evidence was sufficient to prove an attempt to break and enter with the intent to commit

larceny. Therefore, we affirm his conviction.

                                          BACKGROUND

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)).

       Around 11:30 p.m. on September 14, 2010, Gary Serber’s dogs began barking. When

Serber opened the door to let them out, they ran to the back of Serber’s garage. Serber followed

and as he neared the garage he heard a metallic rumbling sound. When Serber went to the rear of

the garage, he saw appellant and Mizell Harris fleeing his property and cutting through a

neighbor’s yard. Serber knew appellant and Harris because they were friends with his

stepdaughter and had been inside his house numerous times. Upon inspecting his garage, Serber

observed that the window had been extensively damaged. The window had been intact and

undamaged when Serber had left for work that morning. However, the “window was broke[n

and] smashed out” when he examined it after appellant and Harris had fled. He said, “[t]he

whole window frame was destroyed,” and “several panes were broke out.”

       Serber testified that Harris had been in the garage previously and had asked to borrow

tools from him. At the time of the incident, Serber stored lawn mowers, tools, guns, and

furniture in the garage.

       In his motion to strike after the Commonwealth rested its case-in-chief, appellant argued

that the Commonwealth failed to prove he attempted to enter the building or that he did so with

the necessary intent. After denying the motion to strike, appellant and Harris testified and denied

being present on Serber’s property that night. Appellant argued “even if the Court does believe

that [he was present] there, I still don’t think that gives rise to the level of an attempted breaking

and entering here. At most, destruction of property. You have to have an intent to commit some

kind of larceny.”




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       On appeal, appellant asserts the evidence was insufficient to support his conviction

because there was no evidence that he attempted to enter the building or that he did so with the

intent to commit larceny.

       Ultimately, the issue is simply “‘whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.’” Maxwell v. Commonwealth, 275 Va. 437, 442, 657

S.E.2d 499, 502 (2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

                                         Attempted Entry

       “An attempt to commit a crime is composed of two elements: (1) the intent to commit it;

and (2) a direct, ineffectual act done toward its commission.” Barrett v. Commonwealth, 210

Va. 153, 156, 169 S.E.2d 449, 451 (1969). The act of breaking and entering “must reach far

enough towards the accomplishment of the desired result to amount to the commencement of the

consummation.” Id.

               “Breaking, as an element of the crime of burglary, may be either
               actual or constructive. . . . Actual breaking involves the
               application of some force . . . whereby the entrance is effected.”

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 (1981)); see also Johns v.

Commonwealth, 10 Va. App. 283, 286, 392 S.E.2d 487, 488 (1990) (explaining that a breaking,

for purposes of burglary, requires the application of force, however slight, to accomplish an

entrance against the occupier’s will). “The gravamen of the offense [of burglary] is breaking the

close or the sanctity of the residence . . . .” Bruce v. Commonwealth, 22 Va. App. 264, 270, 469

S.E.2d 64, 68 (1996), aff’d, 256 Va. 371, 506 S.E.2d 318 (1998).

       “‘In the criminal law as to housebreaking and burglary, [breaking] means the tearing

away or removal of any part of a house or of the locks, latches, or other fastenings intended to


                                                -3-
secure it, or otherwise exerting force to gain an entrance, with criminal intent . . . .’” Id. at 269,

469 S.E.2d at 67 (quoting Black’s Law Dictionary 189 (6th ed. 1990)).

        Contrary to appellant’s assertion that no one heard the window break, the evidence was

that Serber heard a “metallic rumbling sound” when he approached the garage. 1 When he

reached the rear of the garage, he saw that the entire window frame had been destroyed and

several panes of glass had been broken. He saw the appellant and co-defendant fleeing the

scene. The fact finder could conclude that Serber heard noise of the breaking glass and metallic

window frame, which had been intact earlier, and that the fleeing appellant and co-defendant had

broken the window and frame in an effort or attempt to gain entry to the garage. Thus, they had

made a direct but ineffectual act done in furtherance of a breaking and entering. Accordingly,

the evidence was sufficient to support the Commonwealth’s theory that appellant broke the

window in an attempt to enter the garage.

                                      Intent to Commit Larceny

        “[I]n a prosecution of burglary with intent to commit larceny, the state must prove the

specific intent to steal beyond a reasonable doubt.” Ridley v. Commonwealth, 219 Va. 834, 836,

252 S.E.2d 313, 314 (1979). “‘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.’” Vincent v. Commonwealth, 276 Va. 648, 652, 668

S.E.2d 137, 140 (2008) (quoting Hargrave v. Commonwealth, 214 Va. 436, 437, 201 S.E.2d 597,

598 (1974)).




        1
         We note that appellant relies on Caminade v. Commonwealth, 230 Va. 505, 338 S.E.2d
846 (1986), where the evidence of a pried open garage door was insufficient to support a
conviction of burglary. Appellant, however, was convicted of attempted burglary, and thus
Caminade is not relevant to this case.

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       “[T]he question of [appellant’s] intent must be determined from the outward

manifestation of his actions leading to usual and natural results, under the peculiar facts and

circumstances disclosed. This determination presents a factual question which lies peculiarly

within the province of the [fact finder].” Ingram v. Commonwealth, 192 Va. 794, 801-02, 66

S.E.2d 846, 850 (1951). “[T]he [fact finder] may consider the conduct of the person involved

and all the circumstances revealed by the evidence.” Wynn v. Commonwealth, 5 Va. App. 283,

292, 362 S.E.2d 193, 198 (1987).

       “[W]hen an unlawful entry is made . . . , 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.” Ridley, 219 Va. at 836, 252 S.E.2d at 314 (citing

Tompkins v. Commonwealth, 212 Va. 460, 461, 184 S.E.2d 767, 768 (1971)). “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.”

Id. at 837, 252 S.E.2d at 314-15 (citations omitted).

       Here, the evidence warranted an inference that appellant’s attempt to enter Serber’s

garage was with the specific intent to commit larceny. Appellant’s co-defendant had been inside

the garage before and was aware that Serber stored tools, lawn mowers, furniture, and guns

there. That knowledge was imputed to appellant. “An ordinary mind will take cognizance of the

fact that people do not break and enter” structures “containing personal property . . . with

innocent intent.” Ridley, 219 Va. at 837, 252 S.E.2d at 315 (explaining that absent any

“explanation or evidence of a different intent, as here, the intelligent mind will infer that entry




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was with the intent to steal property in the store[house]”). Therefore, the trial court did not err in

finding sufficient evidence that appellant had the requisite intent to commit larceny.

       Accordingly, the decision of the trial court is affirmed.

                                                                                            Affirmed.




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