COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia
JAMES ARTIS
MEMORANDUM OPINION * BY
v. Record No. 3259-01-1 JUDGE LARRY G. ELDER
DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
James A. Cales, Jr., Judge
Charles B. Lustig, Assistant Public Defender,
for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
James Artis (appellant) appeals from his bench trial
conviction for use of a firearm in the commission of robbery in
violation of Code § 18.2-53.1. On appeal, he contends the
holding in Yarborough v. Commonwealth, 247 Va. 215, 441 S.E.2d
342 (1994), compels the conclusion that the evidence was
insufficient to prove he actually possessed a firearm and that
this Court's interpretation of Yarborough in Elmore v.
Commonwealth, 22 Va. App. 424, 470 S.E.2d 588 (1996), and other
cases is erroneous. We hold that the reasoning of Yarborough as
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
applied in Elmore controls the outcome of the case, and we
affirm appellant's conviction.
On appeal, we view the evidence in the light most favorable
to the Commonwealth and accord the evidence all reasonable
inferences fairly deducible therefrom. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
Moreover, "[c]ircumstantial 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 846, 876 (1983).
To obtain a conviction under 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. . . . [T]he fact that [the victim]
merely thought or perceived that [the
accused] was armed is insufficient to prove
that he actually possessed a firearm.
Yarborough, 247 Va. at 218-19, 441 S.E.2d at 344. Although
proof of "possession of a firearm is an 'essential element' of
the offense," id. at 219, 441 S.E.2d at 344, "circumstantial
evidence, such as an assailant's statement that he possesses a
firearm, can be sufficient evidence to prove beyond a reasonable
doubt that an accused indeed possessed a firearm," McBride v.
Commonwealth, 24 Va. App. 603, 607-08, 484 S.E.2d 165, 167-68
(1997) (en banc) (affirming conviction where defendant "'pushed'
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an object into the victim's back and told him he would 'shoot'
if the victim did not cooperate").
We applied these principles in Elmore, which involved the
robbery of a bank. There, we held the evidence was sufficient
to prove the defendant possessed an actual firearm where he gave
the bank teller a note which said he was there to rob the bank
and had a gun, coupled with the defendant's statement, which he
made while pointing at his pocket, that he did not want to hurt
anyone. 22 Va. App. at 426, 429-30, 470 S.E.2d at 588-89, 590.
Thus, we held, "the evidence in [Elmore], unlike the evidence in
Yarborough, consist[ed] of more than the victim's mere belief or
perception that the defendant had a gun." Elmore, 22 Va. App.
at 429, 470 S.E.2d at 590; see also McBride, 24 Va. App. at 607,
484 S.E.2d at 168 (implicitly approving of reasoning in Elmore).
Here, as in Elmore, the evidence also consisted of more
than the victim's mere belief that appellant may have had a gun.
Appellant entered the victim's store with his hand behind his
back, beneath his baggy shirt, and expressly said to the victim,
"Don't make me pull this gun out of my pants." Although the
victim did not know whether appellant did, in fact, have a gun,
appellant's threat was sufficient to cause the victim to
relinquish all the money in the cash register. Finally, here,
as in Elmore, "[t]he only evidence that refute[d] [appellant's]
admission that he possessed a firearm [was] his general denial
[at trial], which the trial court rejected," as it was free to
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do. Elmore, 22 Va. App. at 430, 470 S.E.2d at 590. Thus, here,
as in Elmore, the only reasonable hypothesis flowing from the
remaining evidence, viewed in the light most favorable to the
Commonwealth, was that appellant "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." Yarborough, 247
Va. at 218, 441 S.E.2d at 344; see also Commonwealth v. Burns,
240 Va. 171, 173-74, 395 S.E.2d 456, 457 (1990) (holding that
panel decision of Court of Appeals is binding upon subsequent
panels under rule of stare decisis).
For these reasons, we hold the evidence was sufficient to
support appellant's conviction, and we affirm.
Affirmed.
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Benton, J., dissenting.
[T]o 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.
Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342,
344 (1994) (emphasis added). As in every criminal case, "the
evidence must establish the accused's guilt beyond a reasonable
doubt and exclude every reasonable hypothesis of innocence."
Id. Thus, for the reasons 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 this conviction
because, as in McBride, "[t]he evidence in this case failed to
prove beyond a reasonable doubt the presence of a firearm." Id.
at 611, 484 S.E.2d at 169. "Conviction of a crime is not
justified if the evidence creates only a suspicion or
probability of guilt." Yarborough, 247 Va. at 218, 441 S.E.2d
at 344.
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