COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
MICHAEL AUGUSTUS BYERS
OPINION BY
v. Record No. 1241-95-1 JUDGE ROSEMARIE ANNUNZIATA
SEPTEMBER 10, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Alfred W. Whitehurst, Judge
Rex V. Sparks (Kenneth E. Hildebrand, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Appellant, Michael Augustus Byers, was convicted of two
counts of robbery and two counts of use of a firearm in the
commission of robbery. Appellant contends the evidence was
insufficient to sustain one of the firearm convictions under Code
§ 18.2-53.1. We disagree and affirm the conviction.
I.
Upon familiar principles, we view the evidence in the light
most favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
On April 21, 1993, at approximately 4:05 a.m., taxicab
driver Christopher Rodgers (Rodgers) was dispatched to pick up an
individual. Rodgers, unable to locate the specific address given
to him by the dispatcher, was approached by appellant, and
appellant indicated that he had called the cab. Appellant
entered the cab and directed Rodgers to pull up to a house two
doors away. Appellant told Rodgers that he was waiting for a
friend to come out of the house and that he wanted Rodgers to
take them to their destination. After waiting about two or three
minutes, Rodgers suggested that he blow the cab's horn to signal
the person inside the house. Appellant answered, "No, that's all
right, that's all right." A few seconds later, appellant added,
"You know this is a stickup, don't you?" Rodgers "kind of looked
over [his] shoulder and [asked] what?" Appellant repeated, "This
is a stickup. Don't look back, I['ll] butt you in the head, you
know." At the same time, Rodgers felt a metal object against the
back of his neck, and he testified that he "figured [the metal
object] was a gun." When asked whether he actually saw a gun,
Rodgers responded, "No, I didn't see a gun." Another cab driver,
Michael Ezeigbo, testified that at approximately 5:40 a.m. on
April 14, 1993, appellant and some accomplices robbed him at
gunpoint after calling and requesting a cab.
II.
Code § 18.2-53.1 provides, in part:
It shall be unlawful for any person to use or
attempt to use any . . . firearm or display
such weapon in a threatening manner while
committing or attempting to commit . . .
robbery . . . .
To convict an accused under this statute, "the Commonwealth must
prove that the accused actually had a firearm in his possession
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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) (footnote omitted). Possession of a firearm is an
"essential element" of the offense, and the fact that a victim
merely thinks or perceives that the accused was armed is
insufficient to prove actual possession. Id. at 219, 441 S.E.2d
at 344.
Contrary to the dissent's suggestion, we do not hold that
Yarborough does not require the evidence to show an accused
"`actually' used a gun to consummate the crime." Rather, in
reliance on Yarborough, we hold that proof of "actual" possession
of a firearm under Code § 18.2-53.1 may be established by
circumstantial evidence, direct evidence, or both. See id. at
216-19, 441 S.E.2d at 343-44 (circumstantial evidence that
accused actually possessed firearm insufficient to establish
guilt beyond a reasonable doubt and exclude every reasonable
hypothesis of innocence). See also McBride v. Commonwealth, __
Va. App. __, __, __ S.E.2d __, __ (1996) (circumstantial evidence
sufficient to support conviction).
"Circumstantial evidence . . . is evidence of facts or
circumstances not in issue from which facts or circumstances in
issue may be inferred." 1 Charles E. Friend, The Law of Evidence
in Virginia § 12-1 (4th ed. 1993); see also Ryan v. Maryland
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Casualty Co., 173 Va. 57, 62, 3 S.E.2d 416, 418 (1939) (citation
ommitted) ("Circumstantial evidence is proof of a series of other
facts than the fact in issue, which by experience have been found
so associated with that fact, that, in the relation of cause and
effect, they lead to a satisfactory and certain conclusion").
Direct evidence, on the other hand, is "[e]vidence that directly
proves a fact, without an inference or presumption, and which in
itself, if true, conclusively establishes that fact." Black's
Law Dictionary 460 (6th ed. 1990).
"Circumstantial evidence is as competent and is entitled to
as much weight as direct evidence, provided it is sufficiently
convincing to exclude every reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864,
876 (1983), cert. denied, 465 U.S. 1109 (1984). "[W]here the
Commonwealth's evidence as to an element of an offense is wholly
circumstantial, `all necessary circumstances proved must be
consistent with guilt and inconsistent with innocence and exclude
every reasonable hypothesis of innocence.'" Moran v.
Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 (1987)
(citation omitted); see also Dukes v. Commonwealth, 227 Va. 119,
122, 313 S.E.2d 382, 383 (1984); Wilkins v. Commonwealth, 18 Va.
App. 293, 298, 443 S.E.2d 440, 444 (1994). However, the
Commonwealth "`is not required to disprove every remote
possibility of innocence, but is, instead, required only to
establish guilt of the accused to the exclusion of a reasonable
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doubt.'" Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373
S.E.2d 328, 338 (1988) (quoting Bridgeman v. Commonwealth, 3 Va.
App. 523, 526-27, 351 S.E.2d 598, 600 (1986)). "The hypotheses
which the prosecution must reasonably exclude are those `which
flow from the evidence itself, and not from the imagination of
defendant's counsel.'" Id. at 289-90, 373 S.E.2d at 338-39
(quoting Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608,
609 (1981)).
In Yarborough, the victim testified to seeing "something
protruding" from Yarborough's jacket pocket during the incident,
which Yarborough called a "stickup." 247 Va. at 216-17, 441
S.E.2d at 343. Although the victim believed Yarborough had a gun
in his pocket, she never saw or felt a firearm. Id. Yarborough
never stated he had a gun, and the police found no firearm in
Yarborough's possession, although they later found an unopened
can of beer in his jacket pocket. Id.
The issue on appeal to the Supreme Court was whether the
circumstantial evidence that Yarborough actually possessed a
firearm was sufficient to prove his guilt beyond a reasonable
doubt. In the absence of testimony that a firearm was actually
seen, and in light of the hypothesis that the victim could have
mistaken the beer can for a firearm, the Court found that the
evidence "create[d] merely a suspicion of guilt," which clearly
failed to "exclude every reasonable hypothesis of innocence."
Id. at 218-19, 441 S.E.2d at 344. Accordingly, the Court
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reversed the conviction. Id. at 219, 441 S.E.2d at 344.
Here, the evidence established that (1) appellant twice told
Rodgers, "this is a stickup"; (2) appellant threatened to "butt"
Rodgers in the head if Rodgers turned around; (3) Rodgers felt a
metal object which he thought was a gun against the back of his
neck; and (4) appellant took part in a similar robbery a week
before in which a firearm was used. In light of this evidence,
the trial court, as trier of fact, could reasonably have inferred
that appellant "actually" possessed a firearm while robbing
Rodgers.
Determining whether an alternative explanation is a
"reasonable hypothesis of innocence" is a question of fact.
Cantrell, 7 Va. App. at 290, 373 S.E.2d at 339. Based on
familiar principles, this Court does not substitute its own
judgment for that of the trier of fact. Cable v. Commonwealth,
243 Va. 236, 239, 415 S.E.2d 218, 220 (1992). The trial court's
judgment will not be set aside unless it appears that the
judgment is plainly wrong or without supporting evidence. Code
§ 8.01-680; Josephs v. Commonwealth, 10 Va. App. 87, 99, 390
S.E.2d 491, 497 (1990) (en banc).
Here, the trial court found no alternative hypothesis which
could reasonably explain that the metal object appellant
possessed while robbing Rodgers was anything but a firearm. We
cannot say the trial court's finding is plainly wrong or without
support in the record. Unlike Yarborough, where the Supreme
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Court found that the circumstantial evidence of guilt clearly
failed to exclude the reasonable hypothesis that the victim
mistook the can of beer the police found in defendant's pocket
for a firearm, we find no reasonable, innocent hypothesis in this
case.
Having concluded that the evidence is sufficient to support
the finding beyond a reasonable doubt that appellant "actually"
possessed a firearm, we find the evidence clearly supports the
finding that appellant "used or attempted to use the firearm or
displayed the firearm in a threatening manner while committing or
attempting to commit robbery." See Yarborough, 247 Va. at 218,
441 S.E.2d at 344.
Accordingly, appellant's conviction is affirmed.
Affirmed.
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Baker, J., dissenting.
While finding it difficult to disagree with the rationale of
the majority, I find it more difficult to hold that Yarborough v.
Commonwealth, 247 Va. 215, 441 S.E.2d 342 (1994), does not
require that the evidence must show that the accused "actually"
used a gun to consummate the crime. In Yarborough, the victim
testified that the robber said "this is a stickup," while holding
his hand on something that caused the victim to believe that
Yarborough had a gun. Holding that this evidence was
insufficient to sustain Yarborough's conviction under Code
§ 18.2-53.1, the Supreme Court stated, "we reject . . . the
conclusion reached by the Court of Appeals" that "'actual
sighting of the weapon is unnecessary for a conviction under Code
§ 18.2-53.1.'" Id. at 217-18, 441 S.E.2d at 343-44 (emphasis
added).
Thereafter, the Court said:
Code § 18.2-53.1, a penal statute, must be
strictly construed against the Commonwealth
and in favor of an accused. When so
construed, we think that, to convict an
accused of violating 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.
Id. at 218, 441 S.E.2d at 344 (footnote omitted) (emphasis added)
(citations omitted).
If a writ is sought in this case and the Supreme Court
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refuses to grant it, I will concede that circumstantial evidence
may be sufficient to prove "the actual sighting" required by that
Court in Yarborough. However, until then, I am of the opinion
that this case must be reversed and dismissed for want of
evidence to support the conviction.
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