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.
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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 
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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.