COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Bray and 

 Senior Judge Overton∗

Argued at Norfolk, Virginia 

OSCAR DALVIN ROSS, JR. 

 MEMORANDUM OPINION∗∗ BY 

v. Record No. 0526-98-1 JUDGE NELSON T. OVERTON 

 FEBRUARY 16, 1999 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

John K. Moore, Judge 

 Stephen C. Mahan (Brydges, Mahan, O'Brien & 

Frucci, P.C., on brief), for appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 ∗

Judge Overton participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

January 31, 1999 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401, recodifying Code 

§ 17-116.01:1. 

∗∗Pursuant to Code § 17.1-413, recodifying Code 

§ 17.1-116-010, this opinion is not designated for publication. 

 Oscar Dalvin Ross, Jr. (defendant) appeals his convictions 

for robbery, in violation of Code § 18.2-58, and the use of a 

firearm in the commission of a felony, in violation of Code 

§ 18.2-53.1. He contends that the evidence was insufficient to 

support his convictions. We hold that the evidence was 

sufficient, and we affirm. 

 The parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedental 

value, no recitation of the facts is necessary. 
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When the sufficiency of the evidence is challenged on 

appeal, we review the evidence in the light most favorable to the 

Commonwealth and grant to it all reasonable inferences fairly 

deducible therefrom. See Higginbotham v. Commonwealth, 216 Va. 

349, 352, 218 S.E.2d 534, 537 (1975). We may not disturb the 

conviction unless it is plainly wrong or unsupported by the 

evidence. See Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 

S.E.2d 719, 721 (1988). 

 Defendant first asserts that the evidence was insufficient 

to support his conviction for robbery because he thought the 

musical equipment that he took belonged to him and, therefore, he 

did not intend to commit robbery. It is true that if a person 

has a reasonable belief that the property he takes belongs to 

him, no robbery has been committed, even if it is accompanied by 

force. "[T]here can be no larceny of the property taken if it, 

in fact, is the property of the taker, or if he, in good faith, 

believes it is his, for there is lacking the criminal intent 

which is an essential element of larceny." Butts v. 

Commonwealth, 145 Va. 800, 811-12, 133 S.E. 764, 767-68 (1926). 

However, the trial court did not accept defendant's "claim of 

right" defense. Defendant failed to present credible evidence to 

explain why he thought the equipment was his, yet the 

Commonwealth presented substantial evidence that the stolen 

equipment belonged to defendant's former employer. Because the 

record supports the trial court's decision, we shall not disturb 

it. 
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 Defendant further asserts that the evidence was insufficient 

to support his convictions because there was no evidence of a 

firearm. We disagree. Mr. Daniel Rosenbaum, the person from 

whom the musical equipment was taken, testified that two men 

helped defendant take the equipment. Rosenbaum also testified 

that one of the men drew a small, silver-colored handgun and 

asked defendant to "talk to this kid," indicating Rosenbaum. At 

that point both offenses were complete. The display of a firearm 

in a threatening manner completed the offense of robbery, see

Chappelle v. Commonwealth, 28 Va. App. 272, 504 S.E.2d 378 

(1998), and the use of a firearm in the commission of a felony. 

See Code § 18.2-53.1; Thomas v. Commonwealth, 25 Va. App. 681, 

684, 492 S.E.2d 460, 462 (1997). Because the trial court chose 

to believe Rosenbaum's testimony over defendant's, the record 

supports the convictions. 

 We hold that the convictions are not plainly wrong or 

unsupported by the evidence. Accordingly, they are affirmed. 

 Affirmed.