COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Senior Judge Hodges 

Argued at Norfolk, Virginia 

MICHAEL AUGUSTUS BYERS 

 OPINION BY 

v. Record No. 1241-95-1 JUDGE ROSEMARIE ANNUNZIATA 

 SEPTEMBER 10, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Alfred W. Whitehurst, Judge 

 Rex V. Sparks (Kenneth E. Hildebrand, on 

brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Appellant, Michael Augustus Byers, was convicted of two 

counts of robbery and two counts of use of a firearm in the 

commission of robbery. Appellant contends the evidence was 

insufficient to sustain one of the firearm convictions under Code 

§ 18.2-53.1. We disagree and affirm the conviction. 

 I. 

 Upon familiar principles, we view the evidence in the light 

most favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom. Higginbotham v. 

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). 

 On April 21, 1993, at approximately 4:05 a.m., taxicab 

driver Christopher Rodgers (Rodgers) was dispatched to pick up an 

individual. Rodgers, unable to locate the specific address given 

to him by the dispatcher, was approached by appellant, and 
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appellant indicated that he had called the cab. Appellant 

entered the cab and directed Rodgers to pull up to a house two 

doors away. Appellant told Rodgers that he was waiting for a 

friend to come out of the house and that he wanted Rodgers to 

take them to their destination. After waiting about two or three 

minutes, Rodgers suggested that he blow the cab's horn to signal 

the person inside the house. Appellant answered, "No, that's all 

right, that's all right." A few seconds later, appellant added, 

"You know this is a stickup, don't you?" Rodgers "kind of looked 

over [his] shoulder and [asked] what?" Appellant repeated, "This 

is a stickup. Don't look back, I['ll] butt you in the head, you 

know." At the same time, Rodgers felt a metal object against the 

back of his neck, and he testified that he "figured [the metal 

object] was a gun." When asked whether he actually saw a gun, 

Rodgers responded, "No, I didn't see a gun." Another cab driver, 

Michael Ezeigbo, testified that at approximately 5:40 a.m. on 

April 14, 1993, appellant and some accomplices robbed him at 

gunpoint after calling and requesting a cab. 

 II. 

 Code § 18.2-53.1 provides, in part: 

 It shall be unlawful for any person to use or 

attempt to use any . . . firearm or display 

such weapon in a threatening manner while 

committing or attempting to commit . . . 

robbery . . . . 

To convict an accused under this statute, "the Commonwealth must 

prove that the accused actually had a firearm in his possession 
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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 v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 

(1994) (footnote omitted). Possession of a firearm is an 

"essential element" of the offense, and the fact that a victim 

merely thinks or perceives that the accused was armed is 

insufficient to prove actual possession. Id. at 219, 441 S.E.2d 

at 344. 

 Contrary to the dissent's suggestion, we do not hold that 

Yarborough does not require the evidence to show an accused 

"`actually' used a gun to consummate the crime." Rather, in 

reliance on Yarborough, we hold that proof of "actual" possession 

of a firearm under Code § 18.2-53.1 may be established by 

circumstantial evidence, direct evidence, or both. See id. at 

216-19, 441 S.E.2d at 343-44 (circumstantial evidence that 

accused actually possessed firearm insufficient to establish 

guilt beyond a reasonable doubt and exclude every reasonable 

hypothesis of innocence). See also McBride v. Commonwealth, __ 

Va. App. __, __, __ S.E.2d __, __ (1996) (circumstantial evidence 

sufficient to support conviction). 

 "Circumstantial evidence . . . is evidence of facts or 

circumstances not in issue from which facts or circumstances in 

issue may be inferred." 1 Charles E. Friend, The Law of Evidence 

in Virginia § 12-1 (4th ed. 1993); see also Ryan v. Maryland 
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Casualty Co., 173 Va. 57, 62, 3 S.E.2d 416, 418 (1939) (citation 

ommitted) ("Circumstantial evidence is proof of a series of other 

facts than the fact in issue, which by experience have been found 

so associated with that fact, that, in the relation of cause and 

effect, they lead to a satisfactory and certain conclusion"). 

Direct evidence, on the other hand, is "[e]vidence that directly 

proves a fact, without an inference or presumption, and which in 

itself, if true, conclusively establishes that fact." Black's 

Law Dictionary 460 (6th ed. 1990). 

 "Circumstantial 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). "[W]here the 

Commonwealth's evidence as to an element of an offense is wholly 

circumstantial, `all necessary circumstances proved must be 

consistent with guilt and inconsistent with innocence and exclude 

every reasonable hypothesis of innocence.'" Moran v. 

Commonwealth, 4 Va. App. 310, 314, 357 S.E.2d 551, 553 (1987) 

(citation omitted); see also Dukes v. Commonwealth, 227 Va. 119, 

122, 313 S.E.2d 382, 383 (1984); Wilkins v. Commonwealth, 18 Va. 

App. 293, 298, 443 S.E.2d 440, 444 (1994). However, the 

Commonwealth "`is not required to disprove every remote 

possibility of innocence, but is, instead, required only to 

establish guilt of the accused to the exclusion of a reasonable 
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doubt.'" Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 

S.E.2d 328, 338 (1988) (quoting Bridgeman v. Commonwealth, 3 Va. 

App. 523, 526-27, 351 S.E.2d 598, 600 (1986)). "The hypotheses 

which the prosecution must reasonably exclude are those `which 

flow from the evidence itself, and not from the imagination of 

defendant's counsel.'" Id. at 289-90, 373 S.E.2d at 338-39 

(quoting Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 

609 (1981)). 

 In Yarborough, the victim testified to seeing "something 

protruding" from Yarborough's jacket pocket during the incident, 

which Yarborough called a "stickup." 247 Va. at 216-17, 441 

S.E.2d at 343. Although the victim believed Yarborough had a gun 

in his pocket, she never saw or felt a firearm. Id. Yarborough 

never stated he had a gun, and the police found no firearm in 

Yarborough's possession, although they later found an unopened 

can of beer in his jacket pocket. Id. 

 The issue on appeal to the Supreme Court was whether the 

circumstantial evidence that Yarborough actually possessed a 

firearm was sufficient to prove his guilt beyond a reasonable 

doubt. In the absence of testimony that a firearm was actually 

seen, and in light of the hypothesis that the victim could have 

mistaken the beer can for a firearm, the Court found that the 

evidence "create[d] merely a suspicion of guilt," which clearly 

failed to "exclude every reasonable hypothesis of innocence." 

Id. at 218-19, 441 S.E.2d at 344. Accordingly, the Court 
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reversed the conviction. Id. at 219, 441 S.E.2d at 344. 

 Here, the evidence established that (1) appellant twice told 

Rodgers, "this is a stickup"; (2) appellant threatened to "butt" 

Rodgers in the head if Rodgers turned around; (3) Rodgers felt a 

metal object which he thought was a gun against the back of his 

neck; and (4) appellant took part in a similar robbery a week 

before in which a firearm was used. In light of this evidence, 

the trial court, as trier of fact, could reasonably have inferred 

that appellant "actually" possessed a firearm while robbing 

Rodgers. 

 Determining whether an alternative explanation is a 

"reasonable hypothesis of innocence" is a question of fact. 

Cantrell, 7 Va. App. at 290, 373 S.E.2d at 339. Based on 

familiar principles, this Court does not substitute its own 

judgment for that of the trier of fact. Cable v. Commonwealth, 

243 Va. 236, 239, 415 S.E.2d 218, 220 (1992). The trial court's 

judgment will not be set aside unless it appears that the 

judgment is plainly wrong or without supporting evidence. Code 

§ 8.01-680; Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 

S.E.2d 491, 497 (1990) (en banc). 

 Here, the trial court found no alternative hypothesis which 

could reasonably explain that the metal object appellant 

possessed while robbing Rodgers was anything but a firearm. We 

cannot say the trial court's finding is plainly wrong or without 

support in the record. Unlike Yarborough, where the Supreme 
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Court found that the circumstantial evidence of guilt clearly 

failed to exclude the reasonable hypothesis that the victim 

mistook the can of beer the police found in defendant's pocket 

for a firearm, we find no reasonable, innocent hypothesis in this 

case. 

 Having concluded that the evidence is sufficient to support 

the finding beyond a reasonable doubt that appellant "actually" 

possessed a firearm, we find the evidence clearly supports the 

finding that appellant "used or attempted to use the firearm or 

displayed the firearm in a threatening manner while committing or 

attempting to commit robbery." See Yarborough, 247 Va. at 218, 

441 S.E.2d at 344. 

 Accordingly, appellant's conviction is affirmed. 

Affirmed.
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Baker, J., dissenting. 

 While finding it difficult to disagree with the rationale of 

the majority, I find it more difficult to hold that Yarborough v. 

Commonwealth, 247 Va. 215, 441 S.E.2d 342 (1994), does not 

require that the evidence must show that the accused "actually" 

used a gun to consummate the crime. In Yarborough, the victim 

testified that the robber said "this is a stickup," while holding 

his hand on something that caused the victim to believe that 

Yarborough had a gun. Holding that this evidence was 

insufficient to sustain Yarborough's conviction under Code 

§ 18.2-53.1, the Supreme Court stated, "we reject . . . the 

conclusion reached by the Court of Appeals" that "'actual 

sighting of the weapon is unnecessary for a conviction under Code 

§ 18.2-53.1.'" Id. at 217-18, 441 S.E.2d at 343-44 (emphasis 

added). 

 Thereafter, the Court said: 

 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. 

Id. at 218, 441 S.E.2d at 344 (footnote omitted) (emphasis added) 

 (citations omitted). 

 If a writ is sought in this case and the Supreme Court 
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refuses to grant it, I will concede that circumstantial evidence 

may be sufficient to prove "the actual sighting" required by that 

Court in Yarborough. However, until then, I am of the opinion 

that this case must be reversed and dismissed for want of 

evidence to support the conviction.