Present: All the Justices 

HOWARD LEWIS VINCENT 

v. RECORD NO. 072539 OPINION BY 

JUSTICE CYNTHIA D. KINSER 

COMMONWEALTH OF VIRGINIA October 31, 2008 

FROM THE COURT OF APPEALS OF VIRGNIA 

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 

 1

 The Commonwealth introduced into evidence as one of its 

exhibits a compact disc containing video-recorded footage from 

the surveillance cameras. 
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. 

2 
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-

3 
4 (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 (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. 

 2

 Vincent does not contest that he was the intruder seen on 

the video-recorded footage from the store’s surveillance 

cameras. 

4 
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 

5 
§ 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 the building by shattering a window with a large piece of 

cinder block and then entered through a large hole in the 

window. Id. at 835-36, 252 S.E.2d at 314. The police found 

the defendant in a corner of the building. Id. at 836, 

252 S.E.2d at 314. The defendant, however, did not have any of 

6 
the store’s merchandise in his possession when the police 

apprehended him, and there was no evidence that the defendant 

had tampered with or moved any merchandise. Id.

In addressing the defendant’s challenge to the sufficiency 

of the evidence to prove his intent to commit larceny, we cited 

the principle that “when an unlawful entry is made into a 

dwelling of another, 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.” Id. (citing Tompkins v. Commonwealth, 

212 Va. 460, 461, 184 S.E.2d 767, 768 (1971)). Although the 

principle was originally utilized in conjunction with the 

burglary of a dwelling, we concluded that it was equally 

applicable to the breaking and entering of the storehouse at 

issue in Ridley. Id.

Consequently, we held that the evidence was sufficient to 

support the inference that the defendant’s unauthorized 

presence in the furniture store was with the intent to commit 

larceny. Id. at 837, 252 S.E.2d at 315. The “surrounding 

facts and circumstances” supporting that inference included 

evidence that the defendant had broken into and entered a 

closed store containing items of personal property. The 

evidence also proved that, although the defendant did not have 

any of the store’s merchandise in his possession when the 

7 
police apprehended him, he was still inside the furniture store 

at that point. Furthermore, there was no evidence either as to 

the length of time the defendant had been in the store or as to 

his movements or actions while he was in the building before 

the police found him. 

That is the factual context in which we then stated: “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 the 

intent to commit larceny.” Id. at 837, 252 S.E.2d at 314. 

However, in Velasquez v. Commonwealth, 276 Va. 326, 661 S.E.2d 

454 (2008), this Court rejected the use of a jury instruction 

containing such an inference. There, the trial court granted a 

jury instruction with regard to a charge of breaking and 

entering with the intent to commit rape that read: “In the 

absence of evidence showing a contrary intent, you may infer 

that a defendant’s unauthorized presence in a building of 

another was with the intent to commit rape.” Id. at 328 n.1, 

661 S.E.2d at 455 n.1. The Court held the instruction was an 

improper comment on the evidence and explained that, while 

specific intent may be inferred from the surrounding facts and 

circumstances of a burglary, the nature of that specific intent 

“is a matter for determination by the fact-finder alone, based 

upon the evidence. It is not the function of the court to 

8 
suggest to the jury what conclusion it should draw from the 

facts in evidence.” Id. at 330, 661 S.E.2d at 456. 

Thus, under a correct reading of Ridley, Tompkins, and 

Velasquez, a trier of fact may not reasonably infer the 

specific intent to commit larceny merely from the absence of 

evidence showing a different intent. Instead, as we stated in 

both Ridley and Tompkins, the specific intent with which an 

unlawful entry is made “may be inferred from the surrounding 

facts and circumstances.” Ridley, 219 Va. at 836, 252 S.E.2d 

at 314; Tompkins, 212 Va. at 461, 184 S.E.2d at 768. 

In the case before us, the evidence and the reasonable 

inferences flowing therefrom, viewed in the light most 

favorable to the Commonwealth, proved only that Vincent 

forcibly broke into and entered the retail department store by 

breaking the glass in an entrance door, that he walked around 

in the store for approximately four minutes, that he shoved a 

shopping cart into a rack of clothing, and that he exited the 

store without touching or tampering with cash registers and 

without removing any merchandise. In contrast to the defendant 

in Ridley, Vincent was not apprehended while he was in the 

store but, instead, several hours later after he had exited the 

store. At that time, the police did not find any of the 

store’s merchandise on Vincent’s person, and the store manager 

could not state whether any merchandise was even missing. 

9 
10 

These facts and circumstances do not support the inference that 

Vincent had the specific intent to commit larceny. As we have 

explained, such an intent may not reasonably be inferred merely 

from the absence of evidence of a different intent. We agree 

with Vincent that, to hold otherwise, would relieve the 

Commonwealth of its burden to prove each element of the offense 

beyond a reasonable doubt. 

For these reasons, we conclude that the evidence was not 

sufficient to prove beyond a reasonable doubt that Vincent had 

the specific intent to commit larceny when he unlawfully broke 

into and entered the retail department store. The Court of 

Appeals thus erred by affirming the judgment of the trial court 

finding Vincent guilty of breaking and entering with the intent 

to commit larceny. We will reverse the judgment of the Court 

of Appeals of Virginia and dismiss the indictment. 

Reversed and dismissed.