Tuesday 22nd
April, 1997.
Joseph Franklin McBride, Appellant,
against Record No. 0774-95-1
Circuit Court No. 942675F12C
Commonwealth of Virginia, Appellee.
Upon Rehearing En Banc
Before Chief Judge Moon, Judges Baker, Benton, Coleman,
Willis, Bray, Fitzpatrick, Annunziata and Overton
Robert E. Frank for appellant.
Margaret Ann B. Walker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
By opinion dated July 23, 1996, a majority of a panel of
this Court affirmed the decision of the trial court. McBride v.
Commonwealth, 22 Va. App. 730, 473 S.E.2d 85 (1996). Upon motion of
Joseph Franklin McBride, we granted a hearing en banc. Upon such
rehearing, the judgment of the trial court is affirmed. We adopt as
the opinion of this Court en banc the following from the panel
opinion. In view of the Supreme Court's refusal to grant a writ in
Byers v. Commonwealth, 23 Va. App. 146, 474 S.E.2d 852 (1996), Judge
Baker, who dissented from the panel opinion, concurs with the majority
opinion.
Joseph Franklin McBride (appellant) was convicted of robbery
and use of a firearm in the commission of robbery. On appeal,
appellant contends that the evidence was insufficient to sustain the
firearm conviction. We disagree and affirm the conviction.
I.
On October 11, 1994, Michael Doyle, manager of Doyle Bedding
and Furniture in Norfolk, arrived at the store at 10:00 a.m. At
around 11:00 a.m., Doyle saw a man standing across the street, holding
what appeared to be a baby. A few minutes later, as Doyle was on the
floor assembling a love seat, he saw the man walking down the sidewalk
toward the store's front door. He then heard the bell on that door
ring as the door opened.
Doyle felt the man sit down beside him on the love seat and
"push" something "up against [his] back." Three times the assailant
said, "Don't turn around or I'll shoot." At trial, Doyle testified
that he never saw a gun.
Doyle was instructed to lie on the floor. The robber asked
if Doyle had a gun or if anyone else was in the store. He then tied
Doyle's hands behind him with wire. At that time, a second person
came into the store. Doyle could hear the second person "rifling
through" the front desk. The robber took cash, credit cards, and a
wallet from Doyle. When the robber left the store, Doyle saw a
blanket and plastic bottle which had not been there previously.
Detectives investigating the robbery discovered a plastic
three liter soda bottle which had "balled up" newspapers in a plastic
bag taped to its top. They also found a pink, blue and black blanket,
and speaker wire. A finger and palm print belonging to appellant were
discovered on the newspaper. The police executed a search warrant at
appellant's apartment and discovered several credit cards belonging to
Doyle in a man's shoe in a bedroom.
II.
The issue presented on appeal is whether the evidence was
sufficient to prove that appellant was guilty of use of a firearm in
the commission of robbery.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth, 4 Va.
App. 438, 443, 358 S.E.2d 415, 418 (1987). 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 864, 876 (1983), cert.
denied, 465 U.S. 1109 (1984). See Johnson v. Commonwealth, 2 Va. App.
598, 604-05, 347 S.E.2d 163, 167 (1986) (circumstantial evidence alone
sufficient to sustain conviction).
In Yarborough v. Commonwealth, 247 Va. 215, 441 S.E.2d 342
(1994), the Virginia Supreme Court held that to prove the offense of
use of a firearm, pursuant to 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, 247 Va.
at 218, 441 S.E.2d at 344 (footnote omitted). The Court stated that
possession of a firearm is an "essential element" of the offense. Id.
at 219, 441 S.E.2d at 344.
Yarborough, in robbing his victim, said, "This is a
stickup," and demanded all her money. The victim did not see a gun
but testified that she thought there was a gun in Yarborough's pocket.
Id. at 216-17, 441 S.E.2d at 343. Shortly after the robbery, the
police apprehended Yarborough and discovered an unopened beer can in
his pocket but no weapon. Id. at 217, 441 S.E.2d at 343.
Within four months of the release of the Yarborough opinion,
the Supreme Court awarded an appeal in Johnson v. Commonwealth (Record
No. 940606). In Johnson, the victim was awakened by the sound of the
doorbell ringing and loud knocking on his door. When he went to his
door, he saw it break open. A hand came through the opening, and the
victim heard a man tell him that he had a gun. Johnson told the
victim to get down on the floor or he would kill him. The victim
testified that he never saw a gun and never felt one. The
Commonwealth conceded at trial that the only evidence that Johnson had
a gun was Johnson's statement that he did. The trial court found that
Johnson had a gun.
On appeal to the Virginia Supreme Court, Johnson argued,
inter alia, that under Yarborough, the evidence was insufficient to
sustain his conviction for use of a firearm in the commission of
robbery. The Commonwealth distinguished Yarborough, noting that
Johnson expressly claimed to have a gun and threatened to use it,
whereas in Yarborough, no such claims were made. The Commonwealth
argued that Johnson's conviction was based on his "assertive conduct
and representations that he possessed a gun."
The Supreme Court, by unpublished order, affirmed the
judgment of the trial court. 1 The affirmance in Johnson clearly
stands for the proposition that circumstantial evidence, such as an
1
The order is dated October 21, 1994.
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.
In Elmore v.Commonwealth, 22 Va. App. 424, 470 S.E.2d 588
(1996), we affirmed the conviction for use of a firearm in the
commission of robbery where the victim, a bank teller, testified that
Elmore gave her a note stating that he had a gun, then said he did not
want to hurt anyone and pointed to his pocket. We noted that the
evidence in Elmore consisted of "more than the victim's mere belief or
perception that the defendant had a gun" and concluded that the
evidence was "sufficient to prove beyond a reasonable doubt that the
defendant actually possessed a firearm and used it in a threatening
manner." Id. at 429-30, 470 S.E.2d at 590.
III.
Here, appellant actually "pushed" an object into the
victim's back and told him he would "shoot" if the victim did not
cooperate. While appellant did not explicitly state that he had a
gun, the clear inference to be drawn from his threat to "shoot," is
that he did have a gun.
The 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.
We affirm the judgment of the trial court. Accordingly, the
stay of this Court's July 23, 1996 mandate is lifted.
It is ordered that the trial court allow counsel for the
appellant an additional fee of $200 for services rendered the
appellant on the rehearing portion of this appeal, in addition to
counsel's costs and necessary direct out-of-pocket expenses. This
amount shall be added to the costs due the Commonwealth in the July
23, 1996 mandate.
__________________
Benton, J., with whom Coleman, J., joins, dissenting.
Relying upon an unpublished order from the Supreme Court,
which summarily states that "[u]pon consideration of the record,
briefs and argument of counsel, the [Supreme] Court is of the opinion
that there is no error in the judgment appealed from," Johnson v.
Commonwealth, No. 940606 (Va. Oct. 21, 1994), the majority today
adopts a rule of law contrary to the published decision in Yarborough
v. Commonwealth, 247 Va. 215, 441 S.E.2d 342 (1994). I dissent.
In Yarborough, the Supreme Court reversed this Court's
decision upholding a conviction under Code § 18.2-53.1 for the use of
a firearm in the commission of a felony. See 247 Va. at 219, 441
S.E.2d at 344. The Supreme Court held 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 . . . while committing . . . robbery."
Id. at 218, 441 S.E.2d at 344 (emphasis added). The evidence in
Yarborough proved the following:
As Konchal approached the driveway of the
condominium complex, Yarborough ran past
her. Shortly thereafter, Yarborough
reappeared and ran directly toward her. As
Yarborough approached Konchal, he said,
"This is a stickup[;] give me all your
money." Konchal said, "What?" and tried to
walk past him. Yarborough, however, blocked
Konchal and said, "No, this is a stickup[;]
give me all your money."
According to Konchal, when Yarborough
moved toward her, "[b]oth [of Yarborough's]
hands were in his pockets." She saw
"something protruding . . . from his right
hand pocket of his jacket," and she "thought
[there] was a gun in his pocket." Konchal
then opened her purse, reached in, and
handed Yarborough three twenty dollar bills
from her wallet. Yarborough, using his left
hand, reached into Konchal's purse and took
two one dollar bills. Yarborough then fled
in the direction of a nearby subway (or
Metro) station, and Konchal immediately
reported the robbery to the police.
Id. at 216-17, 441 S.E.2d at 343.
When the police arrested Yarborough "no weapons were found."
Id. at 217, 441 S.E.2d at 343. Because the "evidence that Yarborough
'may have had' a firearm in his possession creates merely a suspicion
of guilt," the Supreme Court ruled that "the evidence [did] not
establish guilt beyond a reasonable doubt and exclude every reasonable
hypothesis of innocence." Id. at 218-19, 441 S.E.2d at 344.
The evidence in McBride's case proved that the victim saw
nothing resembling a firearm. When McBride sat behind the victim, the
victim merely "felt something push up against his back." The victim
testified that the police found a plastic bottle at that site. After
McBride tied the victim's hands, McBride moved about the store,
returned to the victim, and put his hand on the victim's back.
Although the victim could see McBride clearly enough to opine that
McBride "look[ed] like he was panicked," the victim never saw a
firearm.
The evidence in this case is less compelling than the facts
proved in Yarborough. Keeping his right hand in his jacket pocket,
Yarborough used his left hand to take money from the victim. The
victim saw something protruding from Yarborough's right jacket pocket,
and the victim thought the protruding object she saw was a gun. See
id. at 217, 441 S.E.2d at 343.
The majority concludes that the actual presence of a gun is
proved from "the clear inference to be drawn from [McBride's] threat
to 'shoot.'" The majority uses the same logic that was rejected by
the Supreme Court in Yarborough. In improperly affirming Yarborough's
conviction, this Court held that "[a]lthough no gun was found on
appellant, he may have had a gun . . . at the time of the offense
. . . [; thus,] it could be inferred that he had one." Yarborough v.
Commonwealth, 15 Va. App. 638, 642-43, 426 S.E.2d 131, 134 (1993),
rev'd, 247 Va. 215, 441 S.E.2d 342 (1994). Indeed, the Supreme Court
reversed that conviction even though the jury in Yarborough had
inferred from the evidence that Yarborough had a gun protruding from
his right pocket.
The following language from the Supreme Court's decision in
Yarborough clearly undermines the standard the majority again invokes
to uphold McBride's conviction:
[Our prior 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.
247 Va. at 218, 441 S.E.2d at 344 (footnote and citations omitted).
The evidence in this case failed to prove beyond a
reasonable doubt the presence of a firearm. The presence of a firearm
could only be found by drawing inferences from the evidence. However,
the evidence also supports a reasonable inference that McBride used a
plastic bottle to consummate the robbery. The victim testified that
before McBride entered the store, the victim saw him carrying an item
wrapped in a blanket. The item was later identified as a plastic
three liter bottle. The plastic bottle was recovered by the police at
the place where McBride threatened the victim and tied the victim's
hands. Therefore, the Commonwealth failed to exclude the hypothesis
that when McBride approached the victim from behind and threatened to
shoot, he was using the bottle, not a firearm, to frighten the victim.
Finally, I believe the majority's use of the Supreme Court's
unpublished disposition is fundamentally flawed. An unpublished order
from the Supreme Court, though deciding the merits of the particular
case in which the order was entered, has no precedential value for
other cases and should not be read to change the rule of law announced
in a prior published opinion. If the Supreme Court had intended to
change the rule announced in Yarborough, it could have done so in a
published opinion in Johnson or in any number of cases that have
raised this same issue and have been summarily affirmed by unpublished
order. In view of the myriad reasons the Supreme Court may have had
for denying an appeal by unpublished order, I believe the majority
errs in using an unpublished, summary order as a precedent for
deciding this case.
For these reasons, I would hold that the trial judge erred
in convicting McBride of use of a firearm in the commission of the
robbery.
____________________
Coleman, J., dissenting.
Although I join Judge Benton in his dissent, I write
separately in order to make clear my view of the Supreme Court's
holding in Yarborough. As I read that holding, the Supreme Court
ruled that the circumstantial evidence tending to prove Yarborough had
a firearm, which consisted of his saying "this is a stickup" and an
object protruding from his right-hand pocket that the victim thought
was a gun, was not sufficient to overcome the direct evidence that the
item was not a firearm. The direct evidence was that Yarborough was
arrested within minutes after the robbery, he had no weapon on him,
and none was found in the search of the surrounding area. Yarborough
had a chilled, unopened can of beer in one of his pockets. The fact
finder could not reasonably conclude from the circumstantial evidence
that Yarborough had a firearm in his pocket in view of the direct
evidence that he only had a can of beer in the pocket.
Similarly, the circumstantial evidence that McBride used a
firearm consisted of his telling the victim three times, "don't turn
around or I'll shoot" and the victim feeling something push against
his back. The blanket and plastic bottle that were found at the scene
from which McBride fled was direct evidence that the object McBride
used was a bottle, not a firearm. Accordingly, where the direct
evidence was to the contrary, the fact finder could not reasonably
infer from the circumstantial evidence that McBride used a firearm to
commit the robbery.
____________________
This order shall be published and certified to the trial
court.
A Copy,
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk