COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Bray and Senior Judge Overton 

Argued at Norfolk, Virginia 

TERESA WASHINGTON 

 MEMORANDUM OPINION* BY 

v. Record No. 0568-98-1 JUDGE NELSON T. OVERTON 

 APRIL 6, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

Russell I. Townsend, Jr., Judge 

 Reginald B. Frazier for appellant. 

 Michael T. Judge, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication.

 A judge convicted Teresa Washington on two charges of 

abduction and two charges of use of a firearm in the commission 

of robbery. Washington had previously pleaded guilty to two 

counts of robbery. On this appeal, Washington contends that the 

evidence was insufficient to prove that she used a firearm in 

the commission of the robberies. We affirm the convictions. 

I. 

 "Where the sufficiency of the evidence is challenged after 

conviction, it is our duty to consider it in the light most 

favorable to the Commonwealth and give it all reasonable 

inferences fairly deducible therefrom." Higginbotham v. 
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). So 

viewed, the evidence proved that Magdelena Herrera and Patricia 

K. Westman were both working as clerks at a convenience store 

when Washington robbed them. Herrera testified that Washington 

approached from Herrera's back and used her right hand to lift 

Herrera by the collar. Washington pointed something into 

Herrera's back, said "this is a robbery," and commanded Herrera 

to walk to the bathroom. Herrera testified that whatever had 

been pointed into her back felt like a weapon, but that she was 

not sure because she was scared. Herrera could not recall 

Washington saying anything to Westman. 

 Westman was washing coffee pots in the back room when 

Washington appeared with Herrera. Westman testified that 

Washington told her to stop what she was doing or Washington 

would "blow [their] fucking heads off." Westman testified that 

Washington had something in the back of Herrera's neck, but 

Westman could not discern what it was. Because of Washington's 

comment, Westman assumed Washington had a gun. However, both 

Herrera and Westman testified that they never actually saw a 

firearm. Westman went into the bathroom with Herrera. 

 After her arrest, Washington made oral and written 

statements to the police in which she admitted robbing the 

store. In her oral statement, Washington denied having a gun. 

She did not mention a gun in her written statement. According 

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to Washington's statement, when Washington told Herrera that she 

was a robber, Herrera repeatedly said "don't shoot me." 

Washington told the police that as she and Herrera approached 

Westman, Washington responded by saying, "I'm not going to shoot 

you. I'm not the kind of person that comes in to blow your head 

off." Washington said she had her hands in Herrera's back 

leading her forward. 

II. 

 To convict a defendant of using a firearm in the commission 

of a felony under Code § 18.2-53.1, "the Commonwealth must prove 

that the accused actually had a firearm in [her] possession and 

that [she] used or attempted to use the firearm or displayed the 

firearm in a threatening manner while committing or attempting 

to commit robbery." Yarborough v. Commonwealth, 247 Va. 215, 

218, 441 S.E.2d 342, 344 (1994). "[P]ossession of a firearm is 

an 'essential element' of the offense." McBride v. 

Commonwealth, 24 Va. App. 603, 606, 484 S.E.2d 165, 167 (1997) 

(en banc). However, the Commonwealth does not have to prove 

that anyone actually saw the gun, and the Commonwealth may prove 

by circumstantial evidence the use of a firearm. See id. at 

607-08, 484 S.E.2d at 167-68. See also Elmore v. Commonwealth, 

22 Va. App. 424, 429-30, 470 S.E.2d 588, 590 (1996) (finding 

sufficient evidence that the accused possessed a gun where he 

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gave the victim a note stating that he had a gun, he stated that 

he did not want to hurt anyone, and he pointed to his pocket). 

 Herrera believed that the object Washington placed at her 

back was a weapon. When Herrera pleaded that Washington not 

shoot her, Washington did not respond that she did not have a 

gun. She merely told Herrera that she would not shoot. 

Furthermore, Westman testified that Washington was pointing 

something into the back of Herrera's neck when she threatened to 

"blow [their] fucking heads off." 

 From this evidence, the trial court could infer beyond a 

reasonable doubt that Washington possessed a firearm. The 

Commonwealth's evidence was competent, was not inherently 

incredible, and was sufficient to prove beyond a reasonable 

doubt that Washington was guilty of using a firearm in the 

commission of robbery. Accordingly, we affirm the convictions. 

 Affirmed. 

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Benton, J., dissenting. 

 "[A] defendant may not be convicted for the use of a 

firearm under 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." Sprouse v. Commonwealth, 19 Va. App. 548, 551-52, 453 

S.E.2d 303, 306 (1995). In Yarborough v. Commonwealth, 247 Va. 

215, 441 S.E.2d 342 (1994), where the accused said "this is a 

stickup" and had his hand on an object protruding from his 

pocket that the victim believed was a firearm, the Supreme Court 

ruled as follows: 

 The Attorney General contends that "the 

law does not require that a firearm actually 

be seen or even used in order to sustain a 

conviction under § 18.2-53.1" and that the 

evidence is sufficient to support a 

conviction "if the victim is made to feel

that an assailant has a firearm, and reacts 

in response to that perception." Consistent 

with that contention, the Court of Appeals 

stated that "actual sighting of the weapon 

is unnecessary for a conviction under Code 

§ 18.2-53.1." Continuing, the Court of 

Appeals noted that, although [the victim] 

saw no gun, she saw what she believed was a 

gun and that [the accused] "may have had a 

gun in his right pocket at the time of the 

offense." 

 * * * * * * * 

 [W]e reject the Attorney General's 

contention and the conclusion reached by the 

Court of Appeals. 

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 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. 

 In the present case, evidence that [the 

accused] "may have had" a firearm in his 

possession creates merely a suspicion of 

guilt. Possession of a firearm is an 

essential element of the statutory offense, 

and the fact that [the victim] merely 

thought or perceived that [the accused] was 

armed is insufficient to prove that he 

actually possessed a firearm. Clearly, the 

evidence does not establish guilt beyond a 

reasonable doubt and exclude every 

reasonable hypothesis of innocence. 

Therefore, it is insufficient, as a matter 

of law, to support the firearm conviction. 

Id. at 217-19, 441 S.E.2d at 343-44 (footnotes and citations 

omitted). 

 Both Herrera and Westman testified that they saw neither a 

firearm nor any object that resembled a firearm. The detective 

who investigated the robbery testified that neither Herrera nor 

Westman actually saw a firearm in Washington's hand. 

Furthermore, when the detective interviewed Washington shortly 

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after the robbery, Washington confessed to committing the 

robbery but denied having a firearm. 

 Indeed, the testimony of Herrera and Westman conclusively 

establishes that Washington did not have a firearm. Herrera 

testified that Washington held her collar and picked her up 

using one hand. Her testimony established that Washington was 

pointing something in Herrera's back with her free hand. 

Although Westman testified on direct examination that she "saw 

[Washington] had her hand up there" at Herrera's neck, on 

cross-examination, she testified that she "did not see her 

actual hand." Westman also testified however, that she saw 

Washington's other hand (the hand Herrera said was pointing to 

her back) and that Washington's other hand did not hold a 

firearm. In response to the question, "you never saw a firearm 

at any time," Westman testified "No. I just assumed that she 

had one." 

 The evidence in this case failed to prove beyond a 

reasonable doubt the presence of a firearm because the presence 

of a firearm could only be found by drawing impermissible 

inferences from the evidence. In improperly affirming the 

conviction in Yarborough, this Court held that "[a]lthough no 

gun was found on appellant, he may have had a gun . . . at the 

time of the offense. . . . [F]rom the totality of the 

circumstances, it could be inferred that he had one." 

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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). The 

Supreme Court reversed that conviction even though the jury in 

Yarborough had inferred from Yarborough's statement and the 

object protruding from his right pocket that Yarborough had a 

firearm. That inference, as in this case, was based solely on 

suspicious circumstances. See 247 Va. at 218-19, 441 S.E.2d at 

344. 

 The Commonwealth failed to exclude the hypothesis that when 

Washington approached the victim from behind and, according to 

Westman's testimony, threatened to shoot, Washington was using 

her hand, not a firearm, to frighten them. Westman's testimony 

at trial proved that Westman saw the hand that Herrera believed 

held a weapon as it was pointing against Herrera's back. 

Westman saw no firearm in that hand. 

 The mere fact that the victim merely thought or perceived 

that the accused was armed is insufficient to prove that he 

actually possessed a firearm.1 See id. at 219, 441 S.E.2d at 

 

 1At trial, the Commonwealth proceeded on the theory that the 

victim's belief that Washington had a firearm was sufficient 

proof. Indeed, at the conclusion of the evidence the following 

discussion occurred regarding the firearm charges: 

 [DEFENSE ATTORNEY]: I have a motion. 

 THE COURT: Can we take them in the order I 

would like to hear them in? You want to talk 

about the firearm first, don't you? 

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 [DEFENSE ATTORNEY]: Yes, sir. 

 THE COURT: Did feloniously use or display a 

firearm in a threatening manner. Now, first 

of all, I guess we don't need to get too deep 

into it. Let's let the two of you educate 

me, and I don't mean that flippantly either. 

Because there is no evidence, and I think Mr. 

Campbell agrees, or I will put it this way, 

there is not sufficient evidence that there 

was actually any firearm involved. 

 [DEFENSE ATTORNEY]: Exactly. 

 THE COURT: You may say a little bit of 

circumstantial evidence but not enough to say 

there was a firearm involved. 

 Now, Mr. Campbell, is the Commonwealth 

contending that because, let's just say for 

the sake of argument -- I'm not saying this 

is the evidence but to get to the legal 

point, if there was a reasonable basis say 

for a victim concluding that there was a 

firearm, we are not talking about robbery but 

if there is a sufficient basis for a victim 

concluding that a firearm was being used we 

all agree. There was no firearm but there 

was a sufficient basis for the witness to 

reasonably conclude that there was a firearm 

and for a trier of fact to believe that the 

victim did, in fact, think there was a 

firearm involved. 

 Does that change this particular charge any? 

 [COMMONWEALTH'S ATTORNEY]: No, Judge. The 

theory the Commonwealth rests on is that the 

victims believed. 

 THE COURT: But in the charge of a firearm -- 

I am not talking about robbery. 

 [COMMONWEALTH'S ATTORNEY]: No, sir, not for 

the firearm charge. 
344. The evidence regarding the object must prove beyond a 

reasonable doubt that it is a firearm. See id. at 218, 441 

S.E.2d at 344. Moreover, when the evidence is purely 

circumstantial, it must exclude all reasonable hypotheses of 

innocence. See id. The evidence in this case establishes only 

a suspicion that Washington had a gun. "But a suspicion of 

guilt, however strong, or even a probability of guilt, is 

insufficient to support a criminal conviction." Bishop v. 

Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984). 

 For these reasons, I would reverse the convictions. 

 

 THE COURT: Is there any evidence to support 

the firearm charge? 

 [COMMONWEALTH'S ATTORNEY]: Yes, there is, 

Judge. Maybe I don't understand the Court's 

point. 

 THE COURT: Maybe I am missing something. 

 [DEFENSE ATTORNEY]: I move to strike on all 

the charges, Judge. 

 THE COURT: Let's talk about the firearm. 

What I guess I am saying is to convict on a 

firearm charge do you have to prove that 

there actually was a firearm? 

 [COMMONWEALTH'S ATTORNEY]: No, sir. 

That argument by the Commonwealth resurrects the theory that the 

Supreme Court expressly rejected in Yarborough. See 247 Va. 

217-18, 441 S.E.2d at 343-44. 

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