COURT OF APPEALS OF VIRGINIA
Present: Judges Fran k, McClanahan and Petty Argued at Richmond, Virginia

KARL LONDELL MARTIN MEMORANDUM OPINION * BY v. Record No. 2658-08-3 JUDGE ROBERT P. FRANK NOVEMBER 17, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE Charles N. Do rsey, Judge Richard L. Derrico (Copenhaver, Ellett & Derrico, on brief), for appellant. Josephine F. Whalen, Assistan t Attorney Genera l II (William C. Mims, Attorney General, on brief), for appellee.
Karl Londell Martin, appellant, was convicted, in a jury trial, of burg lary in violation of Code § 18.2-91, abduction in violation of Code § 18.2-48, and use of a firear m in the commission of robbery in violation of Code § 18 .2-53.1. On appeal, appellant cont ends that because the trial court set aside the jury verdic t on the robbery conviction, his conv iction for use of a firearm in the commission of robbery must also be set aside. Appellant also conten ds the evidence is insufficient to support his convictions of the other charges. For the following reasons, we affi rm in part and reverse and dismiss in part.
BACKGROUND On the evening of December 19 , 2007, J.H. was alone in his mother’s house when he heard a knock at the front door from a man identifying himself as Calvin. When J.H. opened the door, he was struck in the head with a gu n, thrown on the couch, and ulti mately landed on the floor. J.H.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - remembered four people entering the house, two large men and two smaller men. They began searching throughout the living room, then moved upst airs and roamed through the house. The largest man, described by J.H. as being “not as tall as big, fa t,” weighed over 200 pounds and carried a large chrome handgun. The large man also had on a striped stocking cap mask. Two of the other men each carried smaller handgu ns. J.H. testified th at one of the smaller men with a gun ripped a white gold chain from J.H.’s neck . The men did not take anything else. J.H. was able to run outside to a neighbor’s house wher e he called his mother, who then called the police. Their home had earlier been in stalled with inside su rveillance cameras that recorded the incident on black and white videotape. The videotape was played for the jury at trial. Detective S.R. Terwillege r of the Roanoke City Police Depart ment arrested appellant in an unrelated incident on December 20, 2007. Upon searching appellant, Terwilleger discovered a large, chrome revolver, a .44 magnum with an ex tended barrel, in appellant’s jacket and a striped ski mask in his back pocket. The mask had tw o eyeholes cut out on one side, and two other eyeholes and a breathing hole cut into the other si de. Trial testimony indicated the holes were not originally in the mask, but had la ter been fashioned into the mask by cutting the holes out. The Commonwealth introduced into evidence a photogr aph of a mask. The photo indicated that the mask had two holes cut in it, and J.H. testified that it looked the same as at the time when he saw it in his house. The Commonwealth also introduced th e mask itself, along with the gun that Terwilleger recovered from appellant. The jury found appellant guilty of burglary, ro bbery, use of a firearm in the commission of robbery, and abduction. At a later date, the trial court heard a motion to set aside the jury’s verdicts and the trial court granted appellant’s motion as to robbery. At that time appellant did not argue, as- 3 - he now does on appeal, that a convi ction for use of a firearm in th e commission of robbery cannot stand if the underlying robbery charge fails. This appeal follows.
ANALYSIS Use of a Firearm in the Commission of Robbery Appellant first argues that the tr ial court erred in not setting as ide the use of a firearm in the commission of robbery charge when it set aside the underlyi ng robbery conv iction. The Commonwealth responds that pursuant to Jay v. Commonwealth , 275 Va. 510, 659 S.E.2d 311 (2008), the Commonwealth must concede error. Additionally, the Commonwealth agrees with appellant that although this argument is procedur ally barred pursuant to Rule 5A:18, the ends of justice exception should apply and the conviction for possession of a firearm in th e commission of robbery should be set aside. We agree with the Commonwealth. We note from the outset that we are not obligated to accept the Commonwealth’s concession on a point of law. See Logan v. Commonwealth , 47 Va. App. 168, 172, 622 S.E.2d 771, 773 (2005) ( en banc ) (“Our fidelity to the uniform applic ation of law precludes us from accepting concessions of law made on appeal.”); Tuggle v. Commonwealth , 230 Va. 99, 111 n.5, 334 S.E.2d 838, 846 n.5 (1985). Thus, we review the reco rd independent of the Attorney General’s concession of law. First, we recognize that appellant did not preser ve this issue in the tr ial court. Application of the ends of justice excepti on requires proof of an error that was “clear, substantial and material.” Brown v. Commonwealth , 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989). Application of the ends of jus tice exception is appropr iate where “[the accused] was convicted for conduct that was not a criminal offense” or “t he record . . . affirmatively prove[s] that an- 4 - element of the offense did not occur.” Redman v. Commonwealth , 25 Va. App. 215, 221-22, 487 S.E.2d 269, 272-73 (1997). By finding appellant guilty of use of a fir earm in the commission of robbery, but not finding him guilty of robbery, the trial court found an element of the firearm offense, namely robbery, that did not exist. T hus, the record “affirmatively prov e[s] that an element of the offense did not occur.” Therefore, the ends of justice exception applies and this Court will address the merits of appellant’s argument.



### “ Under the plain language of Code § 18.2-53.1, there can be no conviction for use or attempted use of a firearm when there has been no commission of one of the predicate offenses enumerated in that statute.” Jay , 275 Va. at 527, 659 S.E.2d at 321. We previously have held that inconsistent verdicts rendered by a jury do not constitute reversible error. “Inconsistent verdicts therefore pr esent a situation where ‘error,’ in the sense that the jury has not followed the court’s instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertain ty, and the fact that the [Commonwealth] is precluded from challenging the acquittal, it is hardly satisfactory to allow the de fendant to receive a new trial on the conviction as a matter of course.” Reed v. Commonwealth , 239 Va. 594, 597-98, 391 S.E.2d 75, 77 (1990) (quoting United States v. Powell , 469 U.S. 57, 65 (1984)). However, in th is case the trial court generated the inconsistency, and this Court has previously held that inconsistent verdicts rendered by a trial judge is reversible error. See Akers v. Commonwealth , 31 Va. App. 521, 532, 525 S.E.2d 13, 19 (2000) (concluding that it was error for a trial judge to render inc onsistent verdicts in convicting the defendant of the use of a firearm in the commission of a felony, while acquitting him of the underlying felony charge). Because the trial cour t acquitted appellant of the robbery charge, we- 5 - set aside appellant’s conviction for use of a fi rearm in the commission of robbery and dismiss that charge. Sufficiency of the Evidence Appellant does not challenge that the evidence, viewed in the light most favorable to the Commonwealth, proves that J.H. was the victim of the subject offenses. Rather, he contends that the evidence was insufficient to show he participated in any of the crimes. To be convicted of a crime, suspicion or pr obability of guilt is insufficient. Rather, the burden is upon the Commonwealth to prove ever y essential element of the offense beyond a reasonable doubt. Cameron v. Commonwealth , 211 Va. 108, 110, 175 S.E.2d 275, 276 (1970). When reviewing the sufficiency of the evidence pr esented at the trial of the offense to prove the elements of the crime, we “presume the judgmen t of the trial court to be correct” and reverse only if the trial court’s decisi on is “plainly wrong or wit hout evidence to support it.” Davis v. Commonwealth , 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002); see also Code § 8.01-680. Thus, “the relevant question” on appeal “is whether, after viewing the evidence in the light most favorable to the pros ecution, any rational tr ier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319 (1979). We are also mindful that circumstantial “e vidence ‘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.’” Hollins v. Commonwealth , 19 Va. App. 223, 229, 450 S.E.2d 397, 400 (1994) (quoting Coleman v. Commonwealth , 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)). “Whether a hypothesis of innocen ce is reasonable is a question of fact, see Cantrell v. Commonwealth , 7 Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and a finding by the trial court is binding on appeal unless plainly wrong.” Glasco v. Commonwealth , 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998), aff’d , 257 Va. 433, 513 S.E.2d 137 (1999).- 6 - There is ample circumstantial evidence in this record from which the jury could conclude that appellant was the large individual appear ing on the videotape wearing the ski mask and brandishing the firearm. Appellant cites several cases in support of hi s argument that the circumstantial evidence presented at trial was insufficient to identify him as one of J.H.’s assailants. We recognize that no two cases are identical and that the specific facts of each control whethe r the circumstantial evidence is sufficient to identify the accused as th e perpetrator. Bearing th at in mind, we find the cases cited by appellant to be distinguishable from th e facts in this record.
In Cameron v. Commonwealth , 211 Va. 108, 175 S.E.2d 275 (1970), two unidentified men robbed a woman in the lobby of a parking ga rage. A witness who was walking toward the garage saw two men run out of the exit and told th e police that they were “two . . . males, one short and one tall, the taller we aring dark pants, a white coat and a brown derby type hat, the smaller one wearing light pants, a brown coat and a white sailor type hat with the brim turned down.” 211 Va. at 109, 175 S.E.2d at 275-76. Based on that description, th e police arrested Cameron and another man eight blocks from the garage. Id. at 109, 175 S.E.2d at 276. Cameron was wearing a “‘white, dirty, tan jacket,’ grey pants a nd a brownish hat.” Id. His companion “was wearing a brownish three-quarter-length coat, light ta n pants and a ‘dirty white sailor type cap pulled down with a red and grey band around it.’” Id. The witness testified at trial that he coul d not be positive they were the same two men and only identified them by their clothing. Id. at 110, 175 S.E.2d at 276. The victim was also unable to identify Cameron at trial. Id. The Supreme Court reversed Cameron’s conviction stating: The strongest evidence against the defendant was the testimony of [the witness] who could only say that the defendant and his- 7 - companion were “wearing the same type of clothes” as the two boys who ran out of the garage l obby and that one of the two boys was short and one was tall, as were the defendant and his companion. Id. at 111, 175 S.E.2d at 277. We find the facts of Cameron decidedly distinguishable from the facts here. Cameron’s clothing was commonplace; nothing about his clothing stood out from the ordinary. In comparison, the mask in evidence here is not an or dinary mask. It is unique in its description and distinctively altered from its original appearance. At trial, J.H. was shown photographs of the mask and gun. He identified the mask and gun in the pictures as the same items he saw in his house on the night he was robbed. Also, the video, shown to the jury, clearly depicts a striped mask with two holes cut in one side and three holes cut in the other. Further, the video s hows a long barreled, chrome revolver held by the large assailant who wore the mask. The jury had an opportunity to compare the mask and gun that were offered into evidence with the video of the robbery, as well as compare the size of the assailant to that of appellant. In conclusion, the jury had the opportunity to view the videotape, the gun, and the mask. They concluded that the Commonw ealth’s evidence proved that the mask worn by the assailant was identical to the mask found in appellant’s po cket just a day after J.H. was robbed. Because the jury’s verdict is not plainl y wrong or without evidence to s upport it, we affirm appellant’s convictions for burglary and abduction. We revers e and dismiss appellant’s conviction for use of a firearm in the commission of robbery. Affirmed in part, and reversed and dismissed in part.