COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Retired Judge Brown ∗
Argued at Salem, Virginia
MARK ANTHONY POWELL
MEMORANDUM OPINION ∗∗ BY
v. Record No. 1490-02-1 JUDGE RUDOLPH BUMGARDNER, III
AUGUST 5, 2003
COMMNWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on briefs), for
appellant.
Steven A. Witmer, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
The trial court convicted Mark Anthony Powell of robbery,
two counts of abduction, and three counts of use of a firearm in
the commission of a felony. He argues the evidence was
insufficient to prove he had a firearm, Code § 18.2-53.1. 1 We
conclude the trial court did not err and affirm the convictions.
∗
Retired Judge J. Howe Brown, Jr., took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400.
∗∗
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
"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."
Code § 18.2-53.1.
We view the evidence and the reasonable inferences fairly
deducible therefrom in the light most favorable to the
Commonwealth. Dowden v. Commonwealth, 260 Va. 459, 467, 536
S.E.2d 437, 441 (2000). The defendant walked to the register of
a clothing store and inquired, "Where is your help today?" The
cashier responded that she and the sales associate were alone.
As he demanded money from the register, the defendant said he
had a gun and "Don't move and won't nobody get hurt." He had
his hand in the pocket of his loose fitting jeans the entire
time. The employees believed the defendant had a firearm,
though neither of them saw one. The defendant was "fidgety" and
moved his hand in his pocket left to right. As the cashier
opened the register, the defendant told her to move slowly so no
one would get hurt. She gave him more than $100 cash. The
defendant ordered the employees into the storeroom, told them to
lie on the floor, and closed the door as he left. The employees
watched the defendant leave the premises, saw him get into a
taxi, and called the police.
Officer Nathan Clark received a robbery alert, reported to
the store, and learned the defendant had left in a taxi. Clark
spotted the taxi and pursued it. He did not see anything thrown
from the window. When he stopped the taxi, the defendant told
its driver to "keep going." The taxi driver did not notice the
defendant roll the window down, did not see or hear anything
being thrown out the window, and did not see a firearm. The
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police recovered $196 cash under the back seat of the cab near
where the defendant sat, but no firearm.
In a statement to police, the defendant conceded, "I told
the girl that I had a gun and to give me the money." However,
he denied he had a gun.
The defendant maintains that his statements that he had a
gun were uncorroborated assertions and constituted the only
evidence that he possessed a gun.
Elmore v. Commonwealth, 22 Va. App. 424, 430, 470 S.E.2d
588, 590 (1996), controls this case. The defendant gave a bank
teller "a note stating that he had a 'gun,' pointed to his
pocket and said that he did not want to hurt anyone." At trial,
he denied he possessed a firearm. This Court affirmed his
conviction under Code § 18.2-53.1.
In this case, the evidence is more than an uncorroborated
assertion by the defendant that he had a gun. The defendant had
his hand in his pocket, told the employees he had a gun, and
threatened to use it. He was fidgety, moved his hand in his
pocket back and forth, and ordered them to move slowly so no one
would get hurt. When he ordered them to the storeroom, his hand
remained in his pocket. The defendant accomplished the robbery
and abductions by placing the employees in fear that he would
use the gun to hurt them. His statements, his assertive
conduct, and the circumstances surrounding them were an "implied
assertion" that he had a firearm. See Redd v. Commonwealth, 29
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Va. App. 256, 258-59, 511 S.E.2d 436, 437-38 (1999) (Code
§ 18.2-308.2).
Credible evidence supports the convictions. Accordingly,
we affirm.
Affirmed.
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Benton, J., dissenting.
In Yarborough v. Commonwealth, 247 Va. 215, 441 S.E.2d 342
(1994), the Supreme Court decided several principles that are
again at issue in this case.
The Attorney General contends that "the
law does not require that a firearm actually
be seen or even used in order to sustain a
conviction under [Code] § 18.2-53.1" and
that the evidence is sufficient to support a
conviction "if the victim is made to feel
that an assailant has a firearm, and reacts
in response to that perception." Consistent
with that contention, the Court of Appeals
stated that "actual sighting of the weapon
is unnecessary for a conviction under Code
§ 18.2-53.1." Yarborough [v. Commonwealth],
15 Va. App. [638,] 642, 426 S.E.2d [131,]
133-34 [(1993)]. Continuing, the Court of
Appeals noted that, although Konchal saw no
gun, she saw what she believed was a gun and
that Yarborough "may have had a gun in his
right pocket at the time of the offense."
Id., 426 S.E.2d at 134.
We have decided two cases dealing with
the sufficiency of the evidence to support a
conviction under Code § 18.2-53.1. In Cox
v. Commonwealth, 218 Va. 689, 690-91, 240
S.E.2d 524, 525 (1978), we held that a
pistol, which was capable of firing live
ammunition but which was loaded with wooden
bullets, was "a weapon whose use was
specifically proscribed by [Code
§ 18.2-53.1]." In Holloman v. Commonwealth,
221 Va. 196, 197, 269 S.E.2d 356, 357
(1980), the sole issue was whether the
instrument in the defendant's possession was
a "firearm" within the meaning of Code
§ 18.2-53.1. Although the instrument
"appear[ed] in size, weight and shape to be
a .45 caliber automatic pistol," it fired
BBs "by the force of a spring, not by
gunpowder." Id. We held that the evidence
was sufficient to convict the defendant of
using a firearm in violation of Code
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§ 18.2-53.1, even though the instrument was
fired by a spring rather than by gunpowder.
Id. at 199, 269 S.E.2d at 358.
These cases do not stand for the
proposition that the Commonwealth need not
prove that the defendant actually possessed
a firearm. Indeed, they stand for the
contrary proposition, and we reject the
Attorney General's contention and the
conclusion reached by the Court of Appeals.
Code § 18.2-53.1, a penal statute, must
be strictly construed against the
Commonwealth and in favor of an accused.
Martin v. Commonwealth, 224 Va. 298, 300,
295 S.E.2d 890, 892 (1982). 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. In order to convict an accused of
a crime, the evidence must establish the
accused's guilt beyond a reasonable doubt
and exclude every reasonable hypothesis of
innocence. Cameron v. Commonwealth, 211 Va.
108, 110, 175 S.E.2d 275, 276 (1970).
Conviction of a crime is not justified if
the evidence creates only a suspicion or
probability of guilt. Id.
Id. at 217-18, 441 S.E.2d at 343-44 (footnote omitted).
The evidence in this case proved that during the robbery
Powell said he had a gun. Both salespersons testified, however,
that they did not see a gun, did not see "the outline of a gun"
in Powell's pocket, and saw no other indication of a gun. After
committing the robbery, Powell entered a taxi and traveled a
short distance before the police stopped the taxi and arrested
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Powell. The evidence proved the police recovered money from the
back seat of the taxi but no weapon. The taxi driver testified
Powell did not throw any items from the taxi. When questioned
by the police, Powell denied having a gun or using a gun. In
summary, only by conjecture could the trier of fact find that
the evidence proved Powell actually had a gun.
It is, of course, a truism of the
criminal law that evidence is not sufficient
to support a conviction if it engenders only
a suspicion or even a probability of guilt.
Conviction cannot rest upon conjecture. The
evidence must be such that it excludes every
reasonable hypothesis of innocence. The
giving by the accused of an unclear or
unreasonable or false explanation of his
conduct or account of his doings are matters
for the jury to consider, but they do not
shift from the Commonwealth the ultimate
burden of proving by the facts or the
circumstances, or both, that beyond all
reasonable doubt the defendant committed the
crime charged against him.
Smith v. Commonwealth, 192 Va. 453, 461-62, 65 S.E.2d 528, 533
(1951).
As in Yarborough, I would hold that the evidence failed to
prove beyond a reasonable doubt that Powell "actually possessed
a firearm." 247 Va. at 219, 441 S.E.2d at 344. See also
McBride v. Commonwealth, 24 Va. App. 603, 608-11, 484 S.E.2d
165, 168-70 (1997) (Benton, J., dissenting). Therefore, I would
reverse the firearm convictions.
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