COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia
JOHN ARTHUR WILLIAMS, JR.
MEMORANDUM OPINION * BY
v. Record No. 0326-00-1 JUDGE WILLIAM H. HODGES
MARCH 20, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Verbena M. Askew, Judge
Bryan L. Saunders for appellant.
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
The trial judge convicted John Arthur Williams, Jr. of
various offenses including two robberies and the use of a firearm
in the commission of the robberies. Williams contends the
evidence was insufficient to prove that he used a firearm in the
commission of two robberies. We disagree and affirm the
convictions.
I.
At trial the evidence proved that on February 25, 1999,
Williams entered a grocery market owned by Chaudhry Sian and said
he wanted candy. When Sian went behind the counter, Williams said
"give me money or I'll shoot you." Sian testified that Williams
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
had his hand under his jacket and that "[i]t look[ed] like in his
hand, was very heavy." Williams threatened to shoot Sian at least
four times. Sian never saw a gun but believed that Williams' hand
was holding a gun under his shirt. After Sian gave Williams
money, Williams left the store.
Susan Reid testified that she was working at a bank on
February 27, 1999, when Williams approached Reid's teller window.
He asked for all of her hundreds and tens, and he told her that he
had a gun and would "blow [her] head off." Reid testified that
Williams had his hand underneath his belt. She "saw a bulge" but
never saw a gun. She testified, "whether or not it was from the
hand, I didn't have time to react to that." Reid gave Williams
$9,560.
Detective Daniels testified that Williams confessed that he
was responsible for the robberies. Williams consistently denied
however, having a gun in his possession. Williams said that
rather than using a gun, he used his fingers in one of the
robberies and grabbed his belt buckle in another one.
At the close of the evidence the judge convicted Williams of
all indicted charges including use of a firearm in the commission
of each robbery. This appeal followed.
II.
Code § 18.2-53.1 provides that it shall be a felony for a
person "to use or attempt to use any . . . firearm or display
such weapon in a threatening manner" while committing robbery.
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[T]he 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.
Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342,
344 (1994) (footnote omitted). "[C]ircumstantial 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, 484 S.E.2d 165, 167 (1997) (en banc).
In McBride, the accused pushed an unknown object into his
victim's back and said he would "shoot" if the victim did not
comply with his demands. Although no one actually saw a gun and
the accused never expressly stated that he had one, we held that
"the clear inference to be drawn from his threat to 'shoot,' is
that he did have a gun." 24 Va. App. at 608, 484 S.E.2d at 168.
Thus, we ruled that "circumstantial evidence, considered as a
whole and viewed in the light most favorable to the Commonwealth,
excluded all reasonable hypotheses of innocence and is therefore
sufficient to support the trial court's finding of guilt." Id.
Similarly, in Byers v. Commonwealth, 23 Va. App. 146, 474 S.E.2d
852 (1996), where the accused told the victim "this is a stickup,"
we upheld the conviction for use of a firearm in the commission of
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robbery. The victim felt a metal object against the back of his
neck and no gun was seen. Id. at 152, 474 S.E.2d at 854.
The evidence proved that Williams threatened to "shoot" Sian
while gesturing and pointing at him with what appeared to Sian to
be a heavy object. Similarly, Williams told Reid he would "blow
[her] head off" and kept his hand tucked under his belt buckle.
In both instances, Williams' statements and his menacing actions
provided sufficient evidence from which the trial judge could
conclude beyond a reasonable doubt that Williams was guilty of
using a firearm in the commission of each robbery. Therefore, we
affirm the convictions.
Affirmed.
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Benton, J., dissenting.
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 hold that the evidence only permits a mere
inference that John Arthur Williams may have had a gun. That
inference fails to rise to proof beyond a reasonable doubt that
Williams had a gun. Each robbery victim only supposed that a gun
existed because of a verbal threat and a bulge where Williams held
his hand under his clothing. No gun was seen or recovered. Only
by speculating can the trier of fact or we conclude that the bulge
was a gun.
[The Supreme Court's decisions] 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.
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. Conviction of a crime is not
justified if the evidence creates only a
suspicion or probability of guilt.
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Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342,
344 (1994) (footnote and citations omitted).
In short, the circumstantial evidence of the use of a
firearm in this case does not exclude every reasonable
hypothesis of guilt. Specifically, it does not exclude the
reasonable hypothesis that Williams pretended to have a gun in
order to frighten his victims into submitting more passively to
his assaults. Accordingly, I would reverse the convictions for
use of a firearm in the commission of the robberies.
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