COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Retired Judge Brown ∗
Argued at Salem, Virginia
MAHTOREE L. BELL, III
MEMORANDUM OPINION ∗∗ BY
v. Record No. 0318-02-1 JUDGE RUDOLPH BUMGARDNER, III
JULY 1, 2003
COMMONWEALTH 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.
Stephen R. McCullough, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial court convicted Mahtorhee L. Bell, III, of
attempted robbery, armed statutory burglary, grand larceny, two
counts of abduction, and four counts of use of a firearm in the
commission of a felony. He argues the evidence was insufficient
to prove he was armed with a deadly weapon, Code § 18.2-91, 1 and
∗
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
"If any person commits any of the acts mentioned in
§ 18.2-90 with intent to commit larceny . . . he shall be guilty
of statutory burglary . . . which offense shall be a Class 3
felony. However, if the person was armed with a deadly weapon
that the force used to detain the victims was incidental to the
force used to effect the attempted robbery. We conclude the
trial court did not err and affirm the convictions.
We view the evidence, and the reasonable inferences fairly
deducible therefrom, in the light most favorable to the
Commonwealth. Commonwealth v. Taylor, 256 Va. 514, 516, 506
S.E.2d 312, 313 (1998). Frances Cherry awoke to the sound of
drawers being opened and closed in her roommate's bedroom. She
opened the door to that room and found the defendant inside.
When Cherry asked what he wanted, he demanded money. When she
told her boyfriend they were being robbed, the defendant
responded, "You tell your man if he comes out of that room, I
have a gun, I will shoot you." As he spoke, he patted the side
of his bulky leather jacket. Cherry did not see a gun, but she
believed he had a gun and "fear[ed] for her life." The
boyfriend heard the defendant's threat and stayed in the bedroom
because "he didn't feel the need to come out and get anyone
killed that day."
The defendant went to the living room where he repeated his
demand for money. He again said that he had a gun. He forced
Cherry to unplug the DVD player and then took it and a cell
phone, two cell phone batteries, and a wedding ring. Before the
at the time of such entry, he shall be guilty of a Class 2
felony." Code § 18.2-91.
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defendant would leave, he ordered Cherry into the bedroom. Once
she complied, he left the apartment.
The defendant maintains his statements that he had a gun
were uncorroborated assertions and constituted the only evidence
that he possessed a gun. He argues such evidence was
insufficient to show he committed statutory burglary while armed
with a deadly weapon. Code § 18.2-91. 2
"The finder of fact is entitled to consider all of the
evidence, without distinction [between circumstantial and direct
evidence], in reaching its determination." Commonwealth v.
Hudson, 265 Va. 505, 512-13, 578 S.E.2d 781, 785 (2003); Byers
v. Commonwealth, 23 Va. App. 146, 151, 474 S.E.2d 852, 855
(1996) (Code § 18.2-53.1). The fact finder "determine[s] what
inferences are to be drawn from proved facts, provided the
inferences are reasonably related to those facts." Inge v.
Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567-68 (1976).
In Yarborough v. Commonwealth, 247 Va. 215, 216-17, 441
S.E.2d 342, 343 (1994), the defendant kept his hands in his
pocket during a robbery and twice said, "this is a stick up."
The victim saw something protruding from his pocket and thought
he had a gun. When the police apprehended him shortly after the
2
A firearm is a deadly weapon. See Cox v. Commonwealth,
218 Va. 689, 691-92, 240 S.E.2d 524, 526 (1978). Thus, if the
defendant possessed a firearm, the evidence is sufficient to
prove his conviction under Code § 18.2-91.
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robbery, he had a beer can, but no firearm. The Supreme Court
reversed his conviction of using a firearm during the robbery
because the evidence failed to exclude the reasonable hypothesis
that the victim mistook the beer can for a weapon.
In Elmore v. Commonwealth, 22 Va. App. 424, 430, 470 S.E.2d
588, 590 (1996), 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. In affirming his conviction of using a
firearm during a bank robbery, this Court distinguished
Yarborough, because "the defendant's out-of-court statement
admitted the existence of a 'gun.'" Id. at 429, 470 S.E.2d at
590. The evidence amounted to more than the victim's mere
belief that the defendant was armed.
In McBride v. Commonwealth, 24 Va. App. 603, 484 S.E.2d 165
(1997) (en banc), the defendant pushed an object into the
victim's back and said, "don't turn around or I'll shoot."
While the victim did not see a gun, the fact finder could infer
from the defendant's threat to shoot that he had a gun. Id. at
607-08, 484 S.E.2d at 167. This Court affirmed the defendant's
conviction of using a firearm during a robbery.
"[C]ircumstantial evidence, such as appellant's statement that
he possesses a firearm, can be sufficient evidence to prove
beyond a reasonable doubt that an accused indeed possessed a
firearm." Id. at 607, 484 S.E.2d at 167.
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In this case, the evidence is not simply an uncorroborated
assertion by the defendant that he had a gun. As the defendant
told Cherry he had a gun, he patted his pocket and threatened to
shoot if the boyfriend came out of the bedroom. As he proceeded
to steal items from the living room, he repeated his assertion
that he had a gun and his threat to use it. His statements, his
assertive conduct, and the circumstances surrounding them were
an "implied assertion" that he had a firearm. See Redd v.
Commonwealth, 29 Va. App. 256, 258-59, 511 S.E.2d 436, 437-38
(1999) (Code § 18.2-308.2). This case is controlled by Elmore
and is distinguished from Yarborough because no reasonable
hypothesis of innocence arose from this evidence.
The defendant maintains the force used to detain the two
victims was no more than that necessary to accomplish the
attempted robbery. A defendant may not be convicted of both
abduction and attempted robbery unless "the detention committed
in the act of abduction is separate and apart from, and not
merely incidental to, the restraint employed in the commission
of" the second offense. Brown v. Commonwealth, 230 Va. 310,
314, 337 S.E.2d 711, 714 (1985) (abduction and rape).
The defendant's threat to use the gun effectively detained
Cherry's boyfriend in the bedroom. After the defendant moved to
the living room, he forced Cherry to unplug the DVD player and
took it and other items. Then he ordered her back to her
bedroom. The fact finder could reasonably conclude the
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defendant ordered the victim to the bedroom in order to avoid
detection and to better his escape. See Phoung v. Commonwealth,
15 Va. App. 457, 462, 424 S.E.2d 712, 715 (1992). The acts of
detaining the boyfriend and later ordering Cherry back to her
room were separate and apart from the attempted robbery. They
were not inherent in or necessary to complete the attempted
robbery. Accordingly, the evidence was sufficient to prove
beyond a reasonable doubt the defendant committed two acts of
abduction.
The defendant also maintains that statutory burglary, Code
§ 18.2-91, is not encompassed within the meaning of "burglary"
as used in Code § 18.2-53.1, and that he cannot be convicted of
both burglary while armed with a deadly weapon and the use of a
firearm during the commission of burglary. However, he
presented neither of these arguments to the trial court, and we
will not consider them for the first time on appeal.
Rule 5A:18; Ohree v. Commonwealth, 26 Va. App. 299, 308, 494
S.E.2d 484, 488 (1998). The record reflects no reason to invoke
the good cause or ends of justice exceptions to Rule 5A:18.
Credible evidence supports the convictions. Accordingly,
we affirm.
Affirmed.
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Benton, J., concurring and dissenting.
I.
I concur in the holding that issues two and three,
concerning burglary, and issue five, concerning the abduction of
Cherry, are procedurally defaulted and are barred from review by
Rule 5A:18. I dissent from the remaining portions of the
majority opinion.
II.
To convict an accused of armed statutory burglary in
violation of Code § 18.2-91, the Commonwealth must prove the
accused was armed with a deadly weapon. "Conviction of a crime
is not justified if the evidence creates only a suspicion of
guilt." Yarborough v. Commonwealth, 247 Va. 215, 218, 441
S.E.2d 342, 344 (1994). As in every criminal case, "the
evidence must establish the accused's guilt beyond a reasonable
doubt." Id. For the reasons more fully stated in McBride v.
Commonwealth, 24 Va. App. 603, 608-11, 484 S.E.2d 165, 168-70
(1997) (Benton, J., dissenting), I would reverse the conviction
because the evidence failed to prove beyond a reasonable doubt
the presence of a weapon. See also Yarborough, 247 Va. at
218-19, 441 S.E.2d at 344 (holding the "evidence that [the
accused] 'may have had' a firearm in his possession creates
merely a suspicion of guilt . . . [that] is insufficient to
prove . . . he actually possessed a firearm").
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III.
I would also reverse the conviction for the abduction of
Hancock. The trial judge convicted Bell of attempted robbery.
The principle is well established that "in cases of robbery,
there usually is a detention of the victim and often a seizure."
Johnson v. Commonwealth, 221 Va. 872, 878, 275 S.E.2d 592, 596
(1981). This principle applies equally to attempted robbery and
brings into play the following holding:
[O]ne accused of abduction by detention and
another crime involving restraint of the
victim, both growing out of a continuing
course of conduct, is subject upon
conviction to separate penalties for
separate offenses only when the detention
committed in the act of abduction is
separate and apart from, and not merely
incidental to, the restraint employed in the
commission of the other crime.
Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 713-14
(1985).
The evidence failed to prove that the detention of Hancock
was "separate and apart from" the kind of restraint intrinsic in
the act of attempting a robbery within the residence. "[I]n the
enactment of the abduction statute the General Assembly did not
intend to make the kind of restraint which is an intrinsic
element of crimes such as rape, robbery, and assault a criminal
act, punishable as a separate offense." Id. at 314, 337 S.E.2d
at 713.
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For these reasons, I would reverse the four convictions for
use of a firearm while committing a felony (Code § 18.2-53.1),
the conviction for armed statutory burglary (Code § 18.2-91),
and the conviction for simple abduction of Hancock (Code
§ 18.2-47). 3
3
Although the conviction order recites that the trial
judge convicted Bell of simple abduction (Code § 18.2-47), a
lesser-included offense of Code § 18.2-48, and sentenced him
consistent with the punishment for simple abduction, the
conviction order reflects Code § 18.2-48 rather than Code
§ 18.2-47.
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