COURT OF APPEALS OF VIRGINIA
Present: Judges Alston, Chafin and Decker Argued by teleconference

RANDELL LOUIS KINLAW MEMORANDUM OPINION * BY v. Record No . 0761-16-1 JUDGE MARLA GRAFF DECKER JUNE 20, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT C OURT OF YORK COUNTY Richard H. Rizk, Judge C. Carter Allen (Carter Allen L aw, P.C., on brief), for appel lant. J. Christian Obenshain, Assista nt Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Randell Louis Kinlaw appeals hi s conviction for use of a firea rm in the commission of a felony in violation of Code § 1 8.2-53.1. On appeal, he argues that the evidence was insufficient to prove that he used a firearm within the meaning of the statute. We hold that the circumstantial evidence, including a note that the appellant gave to his robbe ry victim stating tha t he had a gun and that he did not want to hurt he r, was sufficient to prove that he used a firearm in the commission of a felony. Consequently, w e affirm his conviction.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - I. BACKGROUND 1 On November 17, 2014, Stephanie Lasley was working at a tanning salon in York County. Around lunchtime, when no customers or other employees were present, the appellant entered the salon. He was wear ing dark jeans, a black knitted sweater, and a black “beanie.” The appellant told Lasley that he wanted a present for his girl friend and discussed purchasing a gift card for a t anning session. As Lasley prepar ed the gift card, the appellant “threw down a note” that “said s omething along the lines of . . . I have a gun. I don’t want to hurt you. Give me the money . . . .” He instructed Lasley to “keep [her] hands up where he could see them.” He also told he r to “open the [cash] drawer,” “grab the money,” and give it to him. “[O]ut of fear,” Lasley gave the appellant the money from the drawer. The appellant then directed L asley into one of the tanning roo ms and asked her for her identification. He rifled thr ough her purse and took her debit card. He also found her driver’s license and photographed it with his phone. Based on remarks h e made to Lasley, she understood that “if [she] sai d anything to the cops, . . . he c ould find [her].” The appellant also told her that “he didn’t want to see anything on the news about this incident.” He instructed Lasley to tell the police th at “the guy . . . on the video [was n’t] him.” Finally, the appellant directed Lasley to wait in the t anning room for twenty minutes, and he then left the salon. As soon as he did so, she telephone d her manager, who called 911. Lasley was “[v]ery scared” during the robbery, which laste d ten to fifteen minutes. Several days later, Lasley ide ntified the appellant in a photo graphic lineup as the man who robbed her. She did not hesita te in her identification of his photo, immediately stating,

1 In reviewing a challenge to the sufficiency of t he evidence on appeal of a criminal conviction, “we view the evidenc e and all reason able inferences in the light most favorable to the Commonwealth, the party prevailing in the trial court.” Smith v. Commonwealth, 61 Va. App. 690, 692, 739 S.E.2d 280, 281 (2013) (quoting Rowland v. Common wealth, 281 Va. 396, 399, 707 S.E.2d 331, 333 (2011)).- 3 - “Yes. That’s him.” In the proce ss of making the identificatio n, she appeared to be afraid, exhibiting “[s]ome cowering” w hen the investigating officer “pl aced the photograph [of the appellant] down” in front of her. The appellant was tried for robbery and use of a firearm in th e commission of a felony. At the close of the evidence, he argued that the victim’s mere belief or perception that he had a gun during the robbery was insu fficient to prove beyond a reaso nable doubt that he actually possessed a firearm. The trial court found the appellant guilty of robbery and use of a firearm in the commission of a felony. In doing s o, the court noted the uncon tradicted evidence that the appellant communicated to the victim, “I have a gun. I don’t w ant to hurt you and give me all of your money.” The judge also noted that the appellant obtained the victim’s identifying information, told her to lie to the police, and specifically po inted out to her, “I know where you live.” After trial, the appellant file d a motion to reconsider the fi rearm conviction. In arguing the motion, he contended that his written note was insufficient to prove beyond a reasonable doubt that he had a gun, given the a bsence of any additional ev idence or “other factor” supporting that assertion. He al so noted that the victim did n ot specifically testify that she believed that her assailant had a firearm. The trial court denied the motion to reconsider. In doing so, the court again pointed to the victim’s uncontradicted tes timony that the appellant’s note to her represented that he had a gun. The judge also found that the outfit the appellant wore d uring the offense, including a “knitted sweater” and jeans, “could easily conceal a weapon.” In addition, the court concluded that because the appellant was not immediately apprehended, he had ample opportunity “to dispose of the gun that he possessed.”- 4 - The court sentenced the appell ant to fifty years in prison, wi th thirty-five years suspended, for the robbery convi ction. For the u se of a firear m, it sentenced him to three years, with none of the time suspended.
II. ANALYSIS The appellant contends that the evidence was insufficient to s upport his convi ction for the use of a firearm in the commission of a robbery. 2 He suggests that he “merely passed a note to the victim” and that no evidence indicated that he “possessed[] or hid about his person any object that [the victim] could [have] perceived . . . to be a firearm. ” He further argues that the subjective belief of the victim about the presence of a firearm is not enough to support a conviction and, in any event, tha t “the victim did not testify that she believed that [he] actually possessed a firearm.” In considering a challenge to the sufficiency of the evidence, the appellate court views the evidence and all r easonable inferences flowing from the evi dence in the light most favorable to the Commonwealth, the party w ho prevailed in the trial court . Startin v. C ommonwealth, 281 Va. 374, 379, 706 S.E.2d 873, 876 (2011). “If there is evidenc e to support the conviction[], the reviewing court is not permitted to substitute its own judgment , even if its opinion might differ from the conclusions reached by the finder of fact at the trial .” Courtney v. Commonwealth, 281 Va. 363, 366, 706 S.E.2d 344, 346 (2011) (quoting Clark v. Comm onwealth, 279 Va. 636, 641, 691 S.E.2d 786, 788 (2010)). The pivotal question on appellate review of a sufficiency issue is “whether, after viewing the evide nce in the light most favorabl e to the prosecution, any rational trier of fact could have found the e ssential elements of the cr ime beyond a reasonable doubt.” Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Ultimately, the appellate court will “set aside the judgment

2 The appellant does not challe nge the underlying robbery convic tion on appeal.- 5 - only if it is [plainly] wrong or unsupported by the evidence.” Powell v. Commonwealth, 268 Va. 233, 236, 602 S.E.2d 119, 121 (2004). 3 Code § 18.2-53.1 provides in pertinent part that “[i]t shall be unlawful for any person to use or attempt to use any pist ol, shotgun, rifle, or other fire arm or display such weapon in a threatening manner while committing or attempting to commit [any of several enumerated crimes including] robbery.” The purpose of the s tatute is “to deter violent criminal conduct.” Rose v. Commonwealth, 53 Va. App. 505, 512, 673 S.E.2d 489, 492 (2009). “Notably, ‘[the statute] is written in the disj unctive, prohibiting either the actual use [or attempted use] of a firearm[] or the display of a firearm in a t hreatening manner.’” Towler v. Commonwealth, 59 Va. App. 284, 294, 718 S.E.2d 463, 468 (2011) (quoting Dezfuli v. Commonwealth, 58 Va. App. 1, 9, 707 S.E.2d 1, 5 (2011)). The statute “aim[s]” not only t o “prevent[] actual physical injury” but “also to discourage criminal conduct that produces fear of physical harm.” Dezfuli, 58 Va. App. at 9, 707 S.E.2d at 5 (quoting Rose, 53 Va. App. at 51 2, 673 S.E.2d at 492); see Holloman v. Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980). To convict a person of using or atte mpting to use a firearm in violation of Code § 18.2-53.1, “the Commonwealth must prove that ‘the accused act ually had a firearm in his possession.’” Powell, 268 V a. at 236, 602 S.E.2d at 120 (quoti ng Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994)), co nstrued in Courtney, 281 Va. at 367-68, 706 S.E.2d at 346-47; cf. Startin, 281 Va. at 379, 7 06 S.E.2d at 877 (noting that the statute prohibits the use or disp lay of an actual firearm or “a n instrumentality that has the appearance of having the capabilit y of an actual firearm”). Co nsequently, possession of a firearm is “an ‘essential elem ent’ of the offense,” and “the fa ct that [the] victim merely thinks or

3 To the extent that the resolu tion of the sufficiency of the ev idence challenge involves statutory construction, we apply a de novo standard of review to that portion of the analysis. Courtney, 281 Va. at 366, 706 S.E.2d at 345.- 6 - perceives that the accused was a rmed is insufficient to prove a ctual possession.” Byers v. Commonwealth, 23 Va. App. 146, 150, 474 S.E.2d 852, 854 (1996) (quoting Yarborough v. Commonwealth, 247 Va. 215, 219, 441 S.E.2d 342, 344 (1994)). Nevertheless, “proof of ‘actua l’ possession of a firearm under Code § 18.2-53.1,” like any element of a crime, “may be established by circumstantial e vidence, direct evidence, or both.” Id. (citing Yarborough, 247 Va. at 216-19, 441 S.E.2d a t 343-44). “Circumstantial evidence is as competent and is entitled to as much weight as d irect evidence, provided it is sufficiently convincing to excl ude every reasonable hypothesis except that of guilt.” Id. at 151, 474 S.E.2d at 855 (quoting Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)). However, whether a hypot hesis of innocence is reasonable is a question of fact entitled to deference on appeal. S ee id. at 152-53, 474 S.E.2d at 855. The Commonwealth at trial “is not required to disprove every remot e possibility of innocence[] bu t is, instead, required only to establish guilt of the accused t o the exclusion of a reasonable doubt.” Id. at 151, 474 S.E.2d at 855 (quoting Cantrell v. C ommonwealth, 7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988)). In keeping with general principl es of law regarding circumsta ntial evidence, one may “use” a firearm within the mean ing of the statute even if no we apon is ever actually seen by the victim. See, e.g., Cromite v. C ommonwealth, 3 Va. App. 64, 65, 67-68, 348 S.E.2d 38, 39-40 (1986) (stating that “[w]hile the evidence would have been more conclusive had [the victim] seen a firearm, we cannot disregar d the totality of [the eviden ce],” which included the robber’s act of “approach[ing] with his ha nd in his coat pocket and st[i cking] a hard object in [the victim’s] stomach” that the victim said “felt like a gun”), quo ted with approval in Towler, 59 Va. App. at 296, 718 S.E.2d at 469. Courts look to “the totali ty of the circumstances, including the perpetrator’s verbal threats, the manner in which the perpe trator indicated he had a weapon, and the victim’s response to thos e threats.” Towler, 59 Va. Ap p. at 295, 718 S.E.2d at 469;- 7 - Thomas v. Commonwealth, 25 Va. App. 681, 686, 492 S.E.2d 460, 4 63 (1997) (considering the victim’s “visual and nonvisual obs ervations of the object”); se e Powell, 268 Va. at 236-37 & n.2, 602 S.E.2d at 121 & n.2 (holding thata defendant’s “statement that he had a gun . . . made in the course of committing the crime” was relevant to proving that he used or attempted to use a firearm in violation of Code § 18.2- 53.1); McBride v. Commonwea lth, 24 Va. App. 603, 607-08, 484 S.E.2d 165, 167-68 (1997) ( en banc ) (stating in dicta that “circumstantial evidence, such as an assailant’s statement that he possesses a firearm, can be su fficient to prove beyond a reasonable doubt that an accused indeed possessed a firearm”). Here, as the trial court sp ecifically found, the uncontradicted evidence was that the appellant gave the victim a not e that “said something along the lines of . . . I have a gun. I don’t want to hurt you. Give me the money . . . .” The appellant al so told her as he committed the robbery to keep her hands wher e he could see them. The note an d his additional instruction communicated that the appellantintended to hurt the salon empl oyee if she did not cooperate. Further, the trial court note d that the appellant took a photo of the victim’s driver’s license and pointed out that “if [she] s aid anything to the [police], . . . he could find [her],” again implying that he had the capacity to hurt he r in retaliati on if she fail ed to follow his instructions. Additionally, in drawing reasonable inferences from the evidenc e, the trial court specifically found that the appell ant could easily have conceal ed a firearm under the sweater and jeans he was wearing at the time of the robbery. It also recog nized that because the appellant was apprehended several days after the crime, he had ample time to dispose of the gun that he said he used during the robbery. Fin ally, the victim testified that she was “[v]ery scared” during the robbery. In fact, when she m erely saw the appellant’s phot o in a photographic lineup several days afterward, she exhibited si gns of fear, immediately “cower ing” when the investigating officer placed the photo of the a ppellant down in front of her.- 8 - Contrary to the appellant’s s uggestion, the Commonwealth was no t required to present explicit testimony from the victim that she believed that he ac tually possessed a firearm during the robbery. The question was, i nstead, whether the totality o f the circumstances supported a finding that he possessed and used a firearm to commit the crim e. See Towler, 59 Va. App. at 295, 718 S.E.2d at 469. Applying the appropriate standard of r eview, on these facts, we conclude that the evidence was s ufficient to prove that the app ellant had a firearm in his possession during the robbery and us ed it to commit that offens e. Upholding the appellant’s conviction on these facts furthe rs the statute’s purpose “to di scourage criminal conduct that produces fear of physical harm.” See Dezfuli, 58 Va. App. at 9 , 707 S.E.2d at 5 (quoting Rose, 53 Va. App. at 512, 673 S.E.2d at 492). The appellant’s reliance on certa in cases in support of his arg ument does not compel a different result. In fact, the published case law supports the conclusion that the facts of this case are sufficient to prove that the appellant used a firearm in th e commission of robbery. In Elmore v. Commonwealth, 22 Va. App. 424, 470 S.E.2d 588 (199 6), the defendant handed a bank teller a note stati ng that “this is a robbery” an d that he had a gun but “did not want to hurt anyone.” Id. at 4 26, 470 S.E.2d at 588-89. The defend ant also whispered to the teller that he did not want to hurt anyone and “pointed to his pocket, ” which “indicated to [the teller] there was a gun, like he had s tated in his note.” Id. at 426, 470 S.E.2d at 589 (emphasis omitted). After the teller fill ed a bag with money, the defendant “grabbe d the bag and the note and fled.” Id. The Court held that this evi dence, which included testimon y about the note but not the note itself, was “sufficient to pr ove beyond a reasonable doubt that the defendant actually possessed a firearm and used it in a threat ening manner.” Id. at 429-30 & n.2, 470 S.E.2d at 590 & n.2. Under Elmore, it is clear that a fact finder may accept circums tantial evidence involving- 9 - primarily the assertion of a de fendant that he had a gun in ord er to find that he did, in fact, use a gun in the commission of a felony enumerated in Code § 18.2-53. 1. Similarly, in Powell v. Commonwealth, 268 Va. 233, 602 S.E.2d 1 19 (2004), the defendant told the victims that he had a gun and would hurt the m if they did not follow his instructions. Id. at 237, 602 S .E.2d at 121. The evidence als o, however, established that the defendant did not in fact have a firearm in his possession whenhe was apprehended. Id. In considering the defendant’s ar guments in Powell, the Supreme Court of Virginia addressed his claim that his out -of-court statement that he had a gun was insufficient without corroboration to prove his guilt. Id. at 236 n.2, 602 S.E.2d a t 121 n.2. It noted that the defendant attempted to rely on the legal pr inciple that “an extra-judicia l confession is insufficient to establish the corpus delicti of a crime unless corroborated by other evidence.” Id. (citin g Jackson v. Commonwealth, 255 Va. 625, 645-46, 499 S.E.2d 538, 5 51 (1998)). The Court distinguished such a confe ssion from a perpetrator’s statement that he had a gun “made in the course of committing the crime.” Id. In doing so, the Court s trongly implied that corroboration of such a statement made during the commission of a crime is un necessary. The Court in Powell also rejecte d the defendant’s claim that “i t may be reasonable to infer ‘that one who says he has a gun, has a gun,’ if there is no other evidence,” but that where the defendant is apprehended a short time later without a gun and has not been seen discarding it, the “evidence ‘proves’ that [the defendant] did not have a gun. ” Id. at 236, 602 S.E.2d at 121. The Court reasoned that in light of the evidence, the defendant could, on the facts of the case, have discarded a firearm w ithout being seen. See id. at 237, 6 02 S.E.2d at 121. Based on that inference, the Court observed that “evidence that no gun was fo und conflict[ed] with [the defendant’s] statements and act ions during the commission of th e offenses.” Id. It held that the trier of fact was entitled to res olve this conflict against the defendant, “necessarily conclud[ing]- 10 - . . . beyond a reasonable doubt that [the defendant] had a gun. ” Id., cited with approval in Courtney, 281 Va. at 365, 367-68, 706 S.E.2d at 345-47 (affirmi ng the defendant’s conviction where he told the victim duri ng the robbery that he had a gun b ut he had only a toy firearm in his possession when he was apprehended, because the fact finder cle arly resolved against the defendant the issue of whether h e used a real gun in the robber y). Here, like in Powell, the appell ant’s explicit as sertion that h e had a gun, his threatening conduct and other statements dur ing the robbery, the circumstan ces surrounding his capture, and the reasonable inferences flowi ng from these facts support the trial court’s factual finding that the appellant used a firearm i n the commission of the robbery. The fact that the defendant in Powell was also “‘fidgety’” while in the store and “kept his ha nd in his pocket,” circumstances not present in the appellant’s c ase, does not dictate a differe nt resolution in the instant case. See 268 Va. at 237, 602 S.E.2d at 121. Each case is analyzed based on its unique facts. In this case, the appellant’s statements and actions, including his initial r epresentation that he had a gun, his photographing of the victim’s drive r’s license, and his instruc tions to her during the robbery, conveyed that the appellant inte nded to hurt the victim if she failed to comply with his orders. The victim was “[v]ery scared ” during the robbery and continued to exhibit signs of fear when she identified him several days l ater. Finally, the clothing that the appellant wore at the time of the robbery permitted the concea lment of a firearm, and he had ample time to dispose of the gun before he was apprehended. Base d on the record before it, the trial court was entitled, as it did, to reject the appellant’s hypothe sis of innocence—that he merel y said he had a gun and did not actually possess one. See Cour tney, 281 Va. at 367-68, 706 S.E .2d at 346-47; Powell, 268 Va. at 237, 602 S.E.2d at 121. The evidence, viewed under the proper standard, was sufficient to support a finding that the appe llant had a firearm in his posse ssion during the robbery and used it to commit that offense.- 11 - III. CONCLUSION For these reasons, we hold that the evidence was sufficient to prove that the appellant used a firearm in the commission of robb ery. Consequently, we affirm his conviction for violating Code § 18.2-53.1. Affirmed.