COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Elder 

Argued at Richmond, Virginia 

ROBERT ELMORE, S/K/A 

 ROBERT D. ELMORE 

 OPINION BY 

v. Record No. 2366-94-2 JUDGE SAM W. COLEMAN III 

 MAY 14, 1996 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

Oliver A. Pollard, Jr., Judge 

 Peter D. Eliades (Marks & Harrison, on 

brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Robert D. Elmore was convicted in a bench trial of bank 

robbery and use of a firearm in the commission of a robbery. 

Elmore contends that the Commonwealth did not prove that he 

actually possessed a firearm and, therefore, the evidence is 

insufficient to sustain the conviction for use of a firearm in 

the commission of a robbery in violation of Code § 18.2-53.1. We 

hold that the evidence is sufficient and affirm the defendant's 

conviction. 

 At approximately 9:07 a.m. on March 10, 1995, the defendant 

entered the First Colonial Bank in Petersburg and approached Noni 

Deets, a teller at the bank. The defendant handed Deets a blue 

"bank bag," and Deets immediately became "suspicious" because the 

bag was light and contained a note. Deets testified that the 

note stated, "this is a robbery." The note also stated that the 
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defendant did not want to hurt anyone and instructed Deets to 

"quietly put all [her] twenties, fifties and hundreds in the bank 

bag." Deets explained the events that followed: 

 After I read the note I looked back down, 

like I couldn't believe what he was doing. 

He looked at me and he said, very quietly, I 

don't want to hurt anyone. And then he 

pointed to his pocket. And that indicated to 

me there was a gun, like he had stated in his 

note. 

(Emphasis added). Deets put money in the bag, including "bait 

money" that triggered the alarm system. The defendant grabbed 

the bag and the note and fled from the bank. 

 Deets recognized the bank photograph of the robber but could 

not identify the defendant in court. However, two other bank 

employees who were present during the robbery positively 

identified the defendant as the person who robbed Deets. 

 The defendant was indicted for bank robbery, use of a 

firearm in the commission of a robbery, and entering a bank while 

armed with a deadly weapon. After the Commonwealth presented its 

case, the defendant moved to strike the evidence on all three 

charges on the ground that the evidence was insufficient to prove 

that he was the person who committed the robbery. The trial 

court overruled the motion with respect to the indictments for 

bank robbery and use of a firearm in the commission of a robbery 

but struck the evidence as to the charge of entering a bank with 

a deadly weapon because the Commonwealth failed to prove "the 
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actual existence of a weapon."1

 After the defendant presented 

 1 On its face, the trial court's striking the evidence on 

the foregoing ground appears to be inconsistent with the 

defendant's conviction for the use of a firearm in the commission 

of robbery. Although it is well established that in a jury 

trial, the defendant cannot attack a conviction on the ground 

that it is inconsistent with a verdict of acquittal on a related 

charge, United States v. Powell, 469 U.S. 57, 63 (1984); Sullivan 

v. Commonwealth, 214 Va. 679, 679-80, 204 S.E.2d 264, 265 (1974), 

no Virginia case has addressed inconsistent verdicts in a bench 

trial. Other jurisdictions, however, have held that the 

considerations that may justify inconsistent jury verdicts do not 

apply in a bench trial. See, e.g., United States v. Maybury, 274 

F.2d 899, 903 (2d Cir. 1960); Haynesworth v. United States, 473 

A.2d 366, 368 (D.C. 1984); Shell v. State, 512 A.2d 358, 363 (Md. 

1986). We are unwilling to fully address the issue in the 

context of the present case; it has not been briefed or argued by 

the parties. Nevertheless, assuming for purposes of this appeal 

that inconsistent verdicts in a bench trial are grounds for 

reversal in Virginia, we hold that the defendant's conviction for 

use of a firearm in the commission of robbery is not inconsistent 

with the dismissal of the charge for entering a bank while armed 

with a deadly weapon. 

 The elements necessary to prove the existence of a "firearm" 

under Code § 18.2-53.1 are not necessarily identical to those 

required to establish the existence of a "deadly weapon" under 

Code § 18.2-93. Compare Holloman v. Commonwealth, 221 Va. 196, 

197-99, 269 S.E.2d 356, 357-58 (1980) (holding that a springoperated BB gun is a firearm for purposes of Code § 18.2-53.1) 

with Cox v. Commonwealth, 218 Va. 689, 690, 240 S.E.2d 524, 525 

(1978) (holding that a pistol that was "capable of firing live 

ammunition" was a deadly weapon even though it was actually 

"loaded with wooden bullets") (emphasis added). Here the trial 

court expressly noted that the Commonwealth had to prove that the 

defendant entered the bank while armed "with a deadly weapon" and 

"struck the firearms in the bank [charge] because the specific

firearm had not been prove[d]." (Emphasis added). These 

statements indicate that the court found the evidence was 

insufficient to prove the existence of a deadly weapon because 

the Commonwealth did not show the specific type of firearm the 

defendant allegedly possessed. Therefore, in dismissing the 

charge for entering a bank while armed with a deadly weapon, the 

trial court did not necessarily find that the evidence was 

insufficient to prove the existence of a firearm under Code 

§ 18.2-53.1. Cf. Simon v. Commonwealth, 220 Va. 412, 418, 258 

S.E.2d 567, 571 (1979) ("Collateral estoppel becomes applicable 

only when the prior acquittal necessarily resolved the issue now 

in litigation"); Lee v. Commonwealth, 219 Va. 1108, 1111, 254 

S.E.2d 126, 127 (1979) ("[C]ollateral estoppel does not apply if 
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his evidence, the court convicted him of the remaining two 

charges. 

 To obtain a conviction under 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." 

Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 

(1994). On appeal, the evidence must be reviewed in the light 

most favorable to the Commonwealth and must be accorded all 

reasonable inferences fairly deducible therefrom. Higginbotham 

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

The trial court's judgment will not be disturbed unless it "is 

plainly wrong or without evidence to support it." Id.

 In Yarborough, the accused approached the victim and stated, 

"this is a stickup[;] give me all your money." 247 Va. at 217, 

441 S.E.2d at 343. The victim testified that the accused had 

both of his hands in his pockets as he approached and that "[s]he 

saw `something protruding . . . from his right hand pocket of his 

jacket,' and she `thought [there] was a gun in his pocket.'" Id.

 On appeal, the Supreme Court held that "the fact that [the 

victim] merely thought or perceived that [the accused] was armed 

is insufficient to prove that he actually possessed a firearm." 

 

it appears that the prior judgment could have been grounded 'upon 

an issue other than that which the defendant seeks to foreclose 

from consideration'") (quoting Ashe v. Swenson, 397 U.S. 436, 444 

(1970)). 
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Id. at 219, 441 S.E.2d at 344. The defendant contends that 

Yarborough is controlling here because the evidence is 

insufficient to prove that he actually possessed a firearm. 

 In Sprouse v. Commonwealth, 19 Va. App. 548, 453 S.E.2d 303 

(1995), we held that in light of Yarborough 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." Id. at 551-52, 453 S.E.2d at 

306. Therefore, we held that the evidence was insufficient to 

sustain a conviction under Code § 18.2-53.1 where the 

Commonwealth conceded at trial that the object Sprouse used 

during the robbery "was a toy pistol." Id. at 550, 453 S.E.2d at 

305. In Sprouse, we would not permit the fact finder to infer 

from circumstantial evidence that an object was a firearm, where 

the Commonwealth conceded that the uncontroverted direct evidence 

proved that the object was not a firearm. 

 Conversely, in Wilson v. Commonwealth, 19 Va. App. 535, 452 

S.E.2d 884 (1995), we affirmed a conviction under Code 

§ 18.2-53.1 where the victim "stated that she saw [a] gun's brown 

handle hanging out of [the accused's] jacket pocket during the 

robbery." Id. at 537, 452 S.E.2d at 885. Although the gun was 

not produced at trial, the victim "stated that she knew what guns 

looked like and she was sure she saw the handle of a gun." Id.

 Here, Noni Deets testified that the note the defendant gave 
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her stated that he had a "gun." 

 And then he pointed to his pocket. And that 

indicated to me there was a gun, like he had 

stated in his note.2

An out-of-court statement by the defendant that admits or 

acknowledges a fact or facts tending to prove guilt is admissible 

in evidence against the defendant. See Caminade v. Commonwealth, 

230 Va. 505, 510, 338 S.E.2d 846, 849 (1986); Alatishe v. 

Commonwealth, 12 Va. App. 376, 378, 404 S.E.2d 81, 82 (1991). 

Thus, the evidence in this case, unlike the evidence in 

Yarborough, consists of more than the victim's mere belief or 

perception that the defendant had a gun. Here, the defendant's 

out-of-court statement admitted the existence of a "gun." The 

circumstances here are distinguishable from those in Sprouse, 

where the Commonwealth conceded at trial that Sprouse used a toy 

pistol. The only evidence that refutes the defendant's admission 

that he possessed a firearm is his general denial, which the 

trial court rejected. 

 The record reveals that the defendant gave Deets a note 

stating that he had a "gun," pointed to his pocket and said that 

he did not want to hurt anyone. This evidence is sufficient to 

prove beyond a reasonable doubt that the defendant actually 

possessed a firearm and used it in a threatening manner. 

 

 2 Deets testified that the defendant took the note before 

leaving the bank. Therefore, the note was unavailable at trial 

and Deets' testimony regarding the contents of the note was 

admissible. Charles E. Friend, The Law of Evidence in Virginia

§ 16-5, at 646-47 (4th ed. 1993). 
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Accordingly, we affirm the defendant's conviction under Code 

§ 18.2-53.1. 

Affirmed.
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Elder, J., dissenting. 

 I respectfully dissent from the majority's opinion. Because 

the Commonwealth did not prove that the defendant actually 

possessed a firearm, the evidence failed to support the 

defendant's conviction for use of a firearm during the commission 

of a robbery. 

 As the majority acknowledges, the defendant was originally 

indicted and tried on three charges: (1) bank robbery, (2) use 

of a firearm in the commission of a robbery, and (3) entering a 

bank while armed with a deadly weapon. After the Commonwealth 

presented its case, the defendant moved to strike the evidence on 

all three charges. The trial court struck the evidence as to the 

charge of entering a bank with a deadly weapon because the 

Commonwealth failed to prove the actual existence of a weapon. 

However, the trial court overruled the motion with respect to the 

indictments for bank robbery and use of a firearm in the 

commission of a robbery. 

 The trial court's finding that the Commonwealth failed to 

prove "the actual existence of a weapon" is inconsistent with its 

ruling that the evidence is sufficient to prove that the 

defendant used a firearm in the commission of a robbery.3

 The 

trial court made an explicit factual finding that the defendant 

 

 3 The majority correctly cites Yarborough for the 

proposition that to obtain a conviction for use of a firearm in 

the commission of a robbery, "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." Yarborough, 247 Va. at 218, 441 S.E.2d at 

344. 
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did not possess a weapon, which in this case, was argued to be a 

firearm. Therefore, no evidence supported the trial court's 

judgment that the defendant used a firearm in the commission of a 

robbery. Where a trial court's judgment lacks evidence to 

support it, or where it is plainly wrong, this Court may disturb 

the judgment. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 

S.E.2d 415, 418 (1987); Code § 8.01-680. 

 In footnote one, the majority attempts to resolve the trial 

court's inconsistent ruling. The majority cites case law 

standing for the proposition that a firearm may not necessarily 

qualify as a "deadly weapon." The majority therefore concludes 

that the fact of whether the defendant possessed a firearm was 

not necessarily resolved or found by the trial court's dismissal 

of the charge for entering a bank armed with a deadly weapon. 

The majority ignores the trial court's explicit finding that the 

defendant was not in possession of a weapon, as opposed to a 

deadly weapon. This distinction is critical. As discussed 

above, once the trial court found that the defendant did not 

possess a weapon for one purpose (the charge of entering the bank 

with a deadly weapon), logically and consistently the trial court 

could not conclude that the defendant somehow possessed a firearm 

for another purpose (the charge of use of a firearm in the 

commission of a robbery). 

 For these reasons, I would reverse and dismiss the 

defendant's conviction for use of a firearm in the commission of 

a robbery.