COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Ag ee and Senior Judge Hodges Argued at Ches apeake, Virginia

JOHN ARTHUR WILLIAMS, JR. MEMORANDUM OPINION * BY v. Record No. 0326-00-1 JUDGE WILLIAM H. HODGES MARCH 20, 2001 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Verbena M. As kew, Judge Bryan L. Saunders for appellant. Thomas M. McKenna, As sistant Attorn ey General (Mark L. Earley, Attorney General, on brief), for appellee.

The trial judge co nvicted John Arthur Williams, Jr. of various offenses including two ro bberies and the us e of a firearm in the commission of the robberies. Williams contends the evidence was insufficie nt to prove that he used a firearm in the commission of two robberies. We disagree and affirm the convictions.

I. At trial the eviden ce proved that on February 25, 1999, Williams entered a groc ery market owned by Ch audhry Sian and said he wanted candy. When Sian went behind the counter, Williams said "give me money or I'll shoot you." Sian te stified that Williams

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.had his hand under his jacket and that "[i]t look[ed] like in his hand, was very heavy." Williams threatened to shoot Sian at least four times. Sian neve r saw a gun but believed that Williams' hand was holding a gun under his shirt. After Sian gave Williams money, Williams le ft the store. Susan Reid testified that sh e was working at a bank on February 27, 1999, when Williams approached Re id's teller window. He asked for all of her hundreds and tens, and he told her that he had a gun and woul d "blow [her] head off." Reid testified that Williams had his hand underneath his belt. She "saw a bulge" but

never saw a gun. She testified, "whether or not it was from the hand, I didn't have time to react to that." Reid gave Williams $9,560. Detective Daniel s testified that Williams confessed that he was responsible fo r the robberies. Williams consistently denied however, having a gun in his possession. Williams said that rather than using a gun, he used his fi ngers in one of the robberies and gr abbed his belt buckle in another one. At the close of the evidence the judge co nvicted Will iams of all indicted charges in cluding use of a firear m in the commission of each robbery. This appeal followed.

II. Code § 18.2-53.1 provides that it shall be a felony for a person "to use or attempt to use any . . . firearm or display such weapon in a threatening manner" while committing robbery.

- 2 -[T]he 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. In order to convict an accused of a crime, the evidence must establish the accused's guilt beyond a reasonable doubt and exclude every reasonable hypothesis of innocence. Yarborough v. Commonwealth , 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994) (footnote omitted). "[C]ircumstantial evidence, such as an assailant' s statement that he possesses a fi rearm, can be sufficient evidence to prove beyond a reason able doubt that an accused indeed poss essed a firearm." McBride v. Commonwealth , 24 Va. App. 603, 607, 484 S. E.2d 165, 16 7 (1997) ( en banc ).

In McBride , the accused push ed an unknown ob ject into his victim's back an d said he would "shoot" if the victim did not comply with his demands. Althou gh no one actually saw a gun and the accused never expressly stat ed that he had on e, we held that "the clear inference to be drawn from his th reat to 'shoot,' is that he did have a gun. " 24 Va. App. at 608, 484 S.E.2d at 168. Thus, we ruled that "circumstantial evidence, cons idered as a whole and viewed in the light most favora ble to the Co mmonwealth, excluded all reasonable hypotheses of innocence and is therefore sufficient to support the trial court's findin g of guilt." Id. Similarly, in Byers v. Commonwealth , 23 Va. App. 14 6, 474 S.E.2d 852 (1996), where the accused told the victim "this is a stickup," we upheld the conv iction for use of a firear m in the commission of

- 3 -robbery. The victim felt a meta l object against the back of his neck and no gu n was seen. Id. at 152, 474 S. E.2d at 854. The evidence proved that Williams threaten ed to "shoot" Sian while gesturing and pointing at him with what appear ed to Sian to be a heavy object. Similarly, Wi lliams told Reid he would "blow [her] head off" and ke pt his hand tucked un der his belt buckle. In both instances, Wi lliams' statemen ts and his menacing actions provided sufficient evidence from which the trial ju dge could conclude beyond a reas onable doubt that Will iams was guilty of using a firearm in the commission of each robbery. Therefore, we affirm the convictions. Affirmed

.

- 4 -Benton, J., dissenting. For the reasons fully stated in McBride v. Commonwealth , 24 Va. App. 603, 60 8-11, 484 S.E.2d 165, 168-70 (1997) (Benton, J., dissenting), I would ho ld that the ev idence only pe rmits a mere inference that Jo hn Arthur Williams may have had a gun. That inference fails to rise to proof beyond a reasonab le doubt that Williams had a gun. Ea ch robbery victim only supposed that a gun existed because of a verbal threat and a bu lge where Will iams held his hand under his clothi ng. No gun wa s seen or reco vered. Only by speculating can the trier of fact or we conclude that the bulge

was a gun. [The Supreme Court's decisions] do not stand for the proposition that the Commonwealth need not prove that the defendant actually possessed a firearm. Indeed, they stand for the contrary proposition, and we reject the Attorney General's contention and the conclusion reached by the Court of Appeals. 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. In order to convict an accused of a crime, the evidence must establish the accused's guilt beyond a reasonable doubt and exclude every reasonable hypothesis of innocence. Conviction of a crime is not justified if the evidence creates only a suspicion or probability of guilt.

- 5 -Yarborough v. Commonwealth , 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994) (footnote and citations omitted). In short, the circumstantial evidence of the use of a firearm in this case does not exclude every reasonable hypothesis of guilt. Specifically, it does not exclude the reasonable hypothesis that Williams pretended to have a gun in order to frighten his victims into submitting more passively to his assaults. Accordingly, I would reverse the convictions for use of a firearm in the co mmission of the robberies.

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