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." 
 -2- 

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 
 -3- 

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 
 -4- 

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 
 -5- 

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 
 -6- 

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). 
 -7- 

 

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 

 3See 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."). 
 -8- 

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.