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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- 7 -

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.