Present: All the Justices
MARK ANTHONY POWELL
v. Record No. 032402 OPINION BY JUSTICE ELIZABETH B. LACY
September 17, 2004
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Mark Anthony Powell seeks reversal of the judgment of the
Court of Appeals affirming his convictions for violation of Code
§ 18.2-53.1, arguing that the evidence was insufficient to
establish that he possessed a firearm in the commission of a
felony.1
I.
On July 19, 2001, Powell and a friend hired a taxicab to
take them from Norfolk to Portsmouth. After a brief stop,
Powell directed the taxicab to a clothing store. Powell entered
the store and told the clerk that he was looking for a present
for his wife. According to the clerk, while Powell was looking
at the clothes, he kept "his left hand in his pocket the entire
1
Code § 18.2-53.1 provides, in pertinent part,
It shall be unlawful for any person to use or
attempt to use any pistol . . . or other firearm
or display such weapon in a threatening manner
while committing or attempting to commit . . .
robbery . . . or abduction. Violation of this
section shall constitute a separate and distinct
felony . . . .
time." After selecting a pair of pants, he and the clerk
proceeded to the cash register where the clerk's supervisor
began conducting the transaction.
After confirming that no other people were currently in the
store, Powell informed the employees that he had a pistol in his
pocket. Moving back and forth in a nervous, fidgety manner with
his hand in his pocket, Powell told them not to move "and won't
nobody get hurt." Powell ordered the supervisor to open the
cash register and give him all the money inside it, and she
immediately complied. With his hand still in his pocket, Powell
directed the employees into a stockroom in the back of the store
and made them lie down on the floor. When he left the room, the
employees watched him exit the building through a one-way
mirror. The supervisor then opened the stockroom door, ran to
the front of the store, and observed Powell enter a taxicab.
Several minutes after Powell left the store, a police
officer, alerted to the robbery, initiated a traffic stop on
Powell's taxicab. The officer waited for additional officers to
arrive before approaching the vehicle. Then the police officers
2
searched the taxicab and the surrounding area. They found $196
in the taxicab, but no gun was ever located.
Powell admitted during questioning that he had told the
store employees he had a gun, but insisted to the questioning
detective that he, in fact, had not had one. Powell was charged
with one count of robbery, two counts of abduction, and three
counts of the use of a firearm in the commission of these
crimes.
At trial, the store employees and the taxicab driver
testified that they never saw Powell with a gun or observed the
outline of a gun in his clothing. Neither the taxicab driver
nor the police officer pursuing the taxicab saw Powell roll down
his window or throw anything out of the taxicab.
The trial court denied Powell's motion to strike the
abduction and firearms charges and convicted Powell of all
offenses. Powell appealed his firearm convictions to the Court
of Appeals, arguing the evidence was insufficient to establish
that he had actually possessed a firearm. The Court of Appeals
affirmed his firearm convictions in an unpublished order,
3
stating that Powell's declarations that he had a gun, "his
assertive conduct," and the surrounding circumstances, including
being fidgety and keeping his hand in his pocket, were an
"implied assertion" that Powell possessed a firearm and
therefore the evidence supported the convictions. Powell v.
Commonwealth, No. 1490-02-1, (August 5, 2003). We awarded
Powell an appeal.
II.
To convict a person of using, attempting to use, or
threatening to use a firearm in violation of Code § 18.2-53.1,
the Commonwealth must prove that
the accused actually had a firearm in his possession
and that he used or attempted to use the firearm or
displayed the firearm in a threatening manner while
committing or attempting to commit robbery or one of
the other specified felonies.
Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342,
344 (1994).
On appellate review, we view the evidence and all
reasonable inferences therefrom in the light most favorable to
the Commonwealth, the prevailing party below, and we will set
4
aside the judgment only if it is clearly wrong or unsupported by
the evidence. Beavers v. Commonwealth, 245 Va. 268, 281-82, 427
S.E.2d 411, 421 (1993). Furthermore, proof of the crime must be
established beyond a reasonable doubt. Rhodes v. Commonwealth,
238 Va. 480, 487, 384 S.E.2d 95, 99 (1989); Young v.
Commonwealth, 185 Va. 1032, 1042, 40 S.E.2d 805, 810 (1947).
Powell asserts that the evidence is insufficient to support
the firearms convictions because the Commonwealth's only proof
that he had a firearm in his possession was the statements he
made during the commission of the robbery and abductions.
Powell argues that it may be reasonable to infer "that one who
says he has a gun, has a gun," if there is no other evidence,
but in this case Powell maintains that the Commonwealth's
evidence "proves" that Powell did not have a gun.2 We disagree.
2
Citing Jackson v. Commonwealth, 255 Va. 625, 499 S.E.2d 538
(1998), Powell argues that "a defendant's out of court
statements alone are insufficient without some corroboration."
However, Jackson and the cases it relies upon stand for the
5
The evidence in this case is virtually undisputed. Powell
told the victims that he had a gun and threatened to "hurt" them
if they didn't follow his instructions. While in the store
Powell was "fidgety" and kept his hand in his pocket. Neither
the victims nor any other witness testified to seeing Powell
with a gun or disposing of a gun, and no gun was recovered. The
police apprehended Powell in a very short period of time after
he left the scene of the crimes, and for most but not all of
that time he was observed by both the police officer following
the taxicab in which Powell was riding and the driver of the
taxicab. Finally, there was evidence that a second passenger
was in the taxicab with Powell, and although the record reflects
proposition that an extra-judicial confession is insufficient to
establish the corpus delicti of a crime unless corroborated by
other evidence. In this case, as Powell recognizes, there was
no confession. Id. at 645-46, 499 S.E.2d at 551. Powell's
extra-judicial statement that he had a gun was a statement he
made in the course of committing the crime.
6
that police officers searched the taxicab, nothing in the record
indicates that the police ever searched Powell or his companion
when apprehended or when transported to the police station.
It was the province of the trier of fact to consider all
the evidence and resolve any conflicts. In this case, evidence
that no gun was found conflicts with Powell's statements and
actions during the commission of the offenses. The trier of
fact resolved this conflict against Powell, and in doing so,
necessarily concluded that Powell had a gun. In other words,
resolution of the factual conflict in this manner established
beyond a reasonable doubt that Powell had a gun. Based on this
record we cannot say that the judgment of the trial court was
plainly wrong or without evidence to support it.
For the reasons stated, we will affirm the judgment of the
Court of Appeals.
Affirmed.
JUSTICE KOONTZ, dissenting.
I respectfully dissent. No principle in the criminal law
is more fundamental and essential to the just resolution of a
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criminal charge against an accused than the principle that the
Commonwealth is required to prove the guilt of the accused
beyond a reasonable doubt. Indeed, that burden of proof has
constitutional status, for a conviction on legally insufficient
evidence constitutes a denial of due process. Jackson v.
Virginia, 443 U.S. 307, 309 (1979); Commonwealth v. Hudson, 265
Va. 505, 512, 578 S.E.2d 781, 785, cert. denied, ___ U.S. ___,
124 S.Ct. 444 (2003). In characterizing that exacting burden of
proof, we have repeatedly stated that the evidence must exclude
every reasonable hypothesis of innocence, and observed that
evidence that creates a suspicion or probability of guilt is
insufficient to support a conviction. Yarborough v.
Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994);
Burrows v. Commonwealth, 224 Va. 317, 320, 295 S.E.2d 893, 895
(1982); Hyde v. Commonwealth, 217 Va. 950, 954-55, 234 S.E.2d
74, 77-78 (1977); see also Hudson, 265 Va. at 513, 578 S.E.2d at
785. In my view, the evidence in the present case fails, as a
matter of law, to establish beyond a reasonable doubt that Mark
Anthony Powell used a “pistol . . . or other firearm” in
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violation of Code § 18.2-53.1 while committing the robbery and
abductions of the employees of the clothing store.
The evidence was presented to the trial judge solely by the
Commonwealth and, as correctly noted by the majority, is
“virtually undisputed.” On appeal, under familiar principles of
appellate review, that evidence and all reasonable inferences
therefrom are to be considered in the light most favorable to
the Commonwealth. Hickson v. Commonwealth, 258 Va. 383, 387,
520 S.E.2d 643, 645 (1999). Beyond question, the evidence
established that Powell asserted during the robbery and
abductions that he had a gun in his pocket and his actions were
consistent with that assertion. The store employees believed
that Powell had a gun and were placed in fear for their personal
safety as a result. In combination, those circumstances
permitted Powell to accomplish his intent in committing those
crimes. The Commonwealth was not required to prove that Powell
actually had a gun to establish his culpability for the robbery
and abductions of the store employees.
9
However, with regard to the Commonwealth’s burden of proof
to establish beyond a reasonable doubt that Powell was also
guilty of violating Code § 18.2-53.1, the Commonwealth was
required to prove that Powell “actually had a firearm in his
possession” when he committed the robbery and abductions of the
store employees. Yarborough, 247 Va. at 218, 441 S.E.2d at 344.
To determine whether, as a matter of law, the Commonwealth met
that burden of proof, Powell’s assertion to the store employees
that he had a gun cannot be considered in isolation or without
consideration of the other undisputed evidence in the case. Lee
v. Commonwealth, 253 Va. 222, 227, 482 S.E.2d 802, 805 (1997)
(Koontz, J., dissenting); see also Hankerson v. Moody, 229 Va.
270, 274-75, 329 S.E.2d 791, 794 (1985); Forbes v. Commonwealth,
27 Va. App. 304, 312, 498 S.E.2d 457, 460 (1998); Wynne v.
Commonwealth, 17 Va. App. 277, 283, 437 S.E.2d 195, 199 (1993)
(Koontz, J., dissenting), majority opinion withdrawn and
different result reached on rehearing, 18 Va. App. 459, 460, 445
S.E.2d 160, 161 (1994) (en banc).
10
The other undisputed evidence established that the store
employees never saw a gun in Powell’s possession or any object
in Powell’s pocket that indicated the presence of a concealed
gun. Following the robbery, one of the employees observed
Powell entering and then fleeing in a waiting taxi which was
occupied by another passenger in addition to the driver.*
Shortly thereafter, police stopped the taxi and arrested Powell.
The police recovered the money taken in the robbery from the
back seat of the taxi. When questioned later by a police
detective, Powell admitted telling the store employees that he
had a gun, but insisted that, in fact, he had not had one. At
trial, the taxi driver testified that he never saw a gun and
that Powell had not thrown any object from the taxi. A police
officer testified that no “firearms or other weapons [were]
recovered from the cab.”
The totality of this evidence, considered in the light most
favorable to the Commonwealth, undoubtedly creates a suspicion
*
There is no suggestion in the record that the passenger in
the taxi was involved in the crimes, and the passenger was not
11
or even a probability that Powell actually possessed a gun when
he committed the separate crimes of robbery and abduction of the
store employees. The same evidence, however, falls far short of
establishing beyond a reasonable doubt that Powell actually
possessed a gun during the commission of those crimes as
required to establish that he was also guilty of violating Code
§ 18.2-53.1. No gun was ever displayed, seen, or recovered and,
under the particular circumstances of this case, the
Commonwealth’s evidence established that Powell had little if
any opportunity to discard a gun before his arrest without being
observed by the store employees, the taxi driver, or the police
following behind the taxi. When the totality of the undisputed
evidence is considered, it requires, at best, speculation and
conjecture to support the Commonwealth’s supposition that
Powell’s assertion to the store employees that he had a gun was
more than a pretext to accomplish the robbery and abductions. A
“verdict . . . based only upon speculation and conjecture . . .
cannot be permitted to stand.” Dunn v. Commonwealth, 222 Va.
called as a witness at Powell’s 12
trial.
704, 705-06, 284 S.E.2d 792, 793 (1981); see also Wright v.
Commonwealth, 217 Va. 669, 670, 232 S.E.2d 733, 734 (1977);
Powers v. Commonwealth, 211 Va. 386, 389, 177 S.E.2d 628, 630
(1970).
An additional issue prompts my dissent in this case. The
majority correctly notes that it was within the province of the
trial judge to resolve factual conflicts in the evidence.
Relying upon that principle, however, the majority then permits
the reasonable doubt standard to be satisfied in this case on
the basis that the trial judge factually concluded that when
Powell asserted that he had a gun, he actually did have a gun,
regardless of the other undisputed evidence suggesting the
contrary. Under the particular circumstances of this case, this
effectively eliminates the requirement for the Commonwealth to
prove its case beyond a reasonable doubt. Whether a conviction
is supported by sufficient evidence to prove the guilt of the
accused beyond a reasonable doubt is not a question of fact, but
one of law. To the extent that this distinction between issues
of fact and law in the present case are not addressed in detail,
13
I write separately to emphasize that distinction to avoid the
mischief that may occur in future cases in which the reasonable
doubt standard is at issue.
For these reasons, I would reverse the judgment of the
Court of Appeals and enter final judgment reversing Powell’s
convictions for violating Code § 18.2-53.1.
14