COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Felton, Senior Judges Willis and Annuziata Argued at Alexandria

MULUKEN HUILA WUBNEH MEMORANDUM OPINION * BY v. Record No. 0239-07-4 JUDGE JERE M.H. WILLIS, JR. JANUARY 8, 2008 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ARLINGTON COUNTY William T. Newm an, Jr., Judge Michael F. Devine (Devine, Co nnell & Sheldon, P.L.C., on brief), for appellant. Joshua M. Didlake, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

On appeal from his conviction in a bench trial for using a firear m in the commission of a robbery, in violation of Code § 18.2-53.1, Muluken Huila Wubneh contends that the evidence was insufficient to support his conviction because it failed to prove that th e object he used to intimidate the victim was, in fact , a firearm. We disagree and a ffirm the judgment of the trial

court. On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitl ed to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wr ong or without evidence to support it. Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - So viewed, the evidence proved that Wubneh and Solomon Tibebu robbed Mohamed Mohamed, a taxicab driver. Mohamed testifie d that Wubneh displayed a “gun” and Tibebu displayed a knife. They demanded that Mohamed give them his money and cell phone. Mohamed said that Wubneh “put the gun to [the back of his] head, [and] he kept pushing [Mohamed’s] head forward.” Mohamed saw the gun when he turned to look in the glove box for more money. He described the gun as hard and black and said that it “looked like a real gun.” Tibebu testified that he used a knife during the robbery. He testif ied that Wubneh used a BB gun. The object Wubneh used during th e robbery was never located or produced at trial. After hearing argument by counsel, the trial court denied the motion to strike the evidence, holding that “the Commonwealth has put fort h sufficient evidence to find that this was, in fact, a firearm, and that the use and display he re, based upon everything that the victim has tes tified to, it is sufficient.” [T]o 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 po ssession 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.” McBride v. Commonwealth , 24 Va. App. 603, 606, 484 S.E.2d 165, 167 (1997) ( en banc ) (quoting Yarborough v. Commonwealth , 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994)); see also Powell v. Commonwealth , 268 Va. 233, 236, 602 S.E.2d 119, 120 (2004). The purpose of Code § 18.2-53.1, keyed to serious crimes and prescribing inflexible penaltie s, is to deter violent criminal conduct. The statute not only is aimed at preventing actual physical injury or death but also is designed to discourage criminal conduct that produces fear of physic al harm. Such fear of harm results just as readily from employ ment of an instrument that gives the appearance of having a firi ng capability as from use of a weapon that actually has the capac ity to shoot a projectile. The victim of a crime can be intimidated as much by a revolver that- 3 - does not fire bullets as by one that does; such victim cannot be required to distinguish between a loaded pistol and a spring gun when it is brandished during commission of a felony. Holloman v. Commonwealth , 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980) (upholding conviction for using a firearm while committing rape where the “object in question” proved to be a BB gun; Court relied “upon proof that defenda nt employed an instrument which gave the appearance of having a firing capab ility, whether or not the object actually had the capacity to propel a bullet by the force of gunpowder,” id. at 197, 199, 269 S.E.2d at 357, 358) (citations omitted).

In Sprouse v. Commonwealth , 19 Va. App. 548, 549, 453 S.E.2d 303, 304 (1995), the defendant displayed what appeared to the victim to be a firearm during a robbery. A few days later, police recovered a toy gun from Sprouse’s car, and at trial, the Commonwealth conceded the object was a toy. Id. at 550, 453 S.E.2d at 305. Reversing Sp rouse’s conviction, we held that a defendant could not be convict ed of violating Code § 18.2-53.1 “unless the evidence discloses beyond a reasonable doubt that the object used to cause the victim to reasonably believe it was a firearm was, in fact, a firearm.” Id. at 551-52, 453 S.E.2d at 306. Whether a particular object used by an accused during the commission of a felony was a fi rearm may be proved by direct evidence, circumstantial evidence, or both. Prior case law indicates that, when determining wh ether a particular object is a “firearm,” the fact finder may cons ider the victim’s visual and nonvisual observations of the object, the victim’s knowledge of firearms, the accused’s representations about the object during the commission of the felony, expert testimony, and the appearance of the object itself when it is admitted into evidence. However, the evidence regarding the object mu st prove beyond a reasonable doubt that it is a “firearm” as that term is used in Code § 18.2-53.1, and when the evidence regarding the object is purely circumstantial, it must exclude all reasonable hypotheses of innocence. Thomas v. Commonwealth , 25 Va. App. 681, 686-87, 492 S.E.2d 460, 463 (1997) (finding the evidence sufficient to prove a BB pistol used by Thomas to rob the victim was a firearm, based- 4 - on the victim’s observations and the appearance of the object, which was admitted and found to resemble a real firearm, thus excludi ng reasonable hypothesis it was mere toy). Wubneh argues that the evidence proved that he used only a BB gun in robbing Mohamed, not a firearm, and that our holding in Sprouse requires reversal of his conviction. We do not reach this question. “It was the province of the trier of fact to consider all the evidence and resolve any conflicts.” Powell , 268 Va. at 237, 602 S.E.2d at 121. Mohamed’s testimony that the object felt like and appeared to be a real firearm conflicted with Tibebu ’s testimony that it was a BB gun. The trier of fact resolved this conflict agai nst Wubneh, concluding that the evidence proved Wubneh used a firearm. See Thomas , 25 Va. App. at 687-88, 492 S.E.2d at 463 (finding sufficient evidence to prove BB pistol used by Thomas to rob victim was firearm based on victim’s observations and appearance of object); Byers v. Commonwealth , 23 Va. App. 146, 152, 474 S.E.2d 852, 855 (1996) (upholding conviction based on circumstantial evidence where victim felt metal object he thought was gun agains t his neck and defendant said “this is a stick-up”); Wilson v. Commonwealth , 19 Va. App. 535, 536-37, 452 S.E.2d 884, 885 (1995) (upholding conviction where clerk was familiar with guns and test ified she saw handle of gun). Unlike the situations in Thomas and Sprouse , the object used in this case was never recovered. The only evidence that it was a BB gun came from Wubneh’s accomplice, whose testimony the fact finder rejecte d. Thus, the Commonwealth presented competent and credible evidence sufficient to prove beyond a reasonab le doubt that Wubneh possessed and used a firearm during the robbery. The judgment of the trial court is affirmed. Affirmed.