COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Agee and Senior Judge Hodges 

Argued at Chesapeake, 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. Askew, Judge 

 Bryan L. Saunders for appellant. 

 Thomas M. McKenna, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 The trial judge convicted John Arthur Williams, Jr. of 

various offenses including two robberies and the use of a firearm 

in the commission of the robberies. Williams contends the 

evidence was insufficient to prove that he used a firearm in the 

commission of two robberies. We disagree and affirm the 

convictions. 

I. 

 At trial the evidence proved that on February 25, 1999, 

Williams entered a grocery market owned by Chaudhry Sian and said 

he wanted candy. When Sian went behind the counter, Williams said 

"give me money or I'll shoot you." Sian testified 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 never saw a gun but believed that Williams' hand 

was holding a gun under his shirt. After Sian gave Williams 

money, Williams left the store. 

 Susan Reid testified that she was working at a bank on 

February 27, 1999, when Williams approached Reid's teller window. 

He asked for all of her hundreds and tens, and he told her that he 

had a gun and would "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 Daniels testified that Williams confessed that he 

was responsible for the robberies. Williams consistently denied 

however, having a gun in his possession. Williams said that 

rather than using a gun, he used his fingers in one of the 

robberies and grabbed his belt buckle in another one. 

 At the close of the evidence the judge convicted Williams of 

all indicted charges including use of a firearm 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 firearm, can be 

sufficient evidence to prove beyond a reasonable doubt that an 

accused indeed possessed a firearm." McBride v. Commonwealth, 24 

Va. App. 603, 607, 484 S.E.2d 165, 167 (1997) (en banc). 

 In McBride, the accused pushed an unknown object into his 

victim's back and said he would "shoot" if the victim did not 

comply with his demands. Although no one actually saw a gun and 

the accused never expressly stated that he had one, we held that 

"the clear inference to be drawn from his threat 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, considered as a 

whole and viewed in the light most favorable to the Commonwealth, 

excluded all reasonable hypotheses of innocence and is therefore 

sufficient to support the trial court's finding of guilt." Id. 

Similarly, in Byers v. Commonwealth, 23 Va. App. 146, 474 S.E.2d 

852 (1996), where the accused told the victim "this is a stickup," 

we upheld the conviction for use of a firearm in the commission of 

- 3 -
robbery. The victim felt a metal object against the back of his 

neck and no gun was seen. Id. at 152, 474 S.E.2d at 854. 

 The evidence proved that Williams threatened to "shoot" Sian 

while gesturing and pointing at him with what appeared to Sian to 

be a heavy object. Similarly, Williams told Reid he would "blow 

[her] head off" and kept his hand tucked under his belt buckle. 

In both instances, Williams' statements and his menacing actions 

provided sufficient evidence from which the trial judge could 

conclude beyond a reasonable doubt that Williams 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, 608-11, 484 S.E.2d 165, 168-70 (1997) (Benton, J., 

dissenting), I would hold that the evidence only permits a mere 

inference that John Arthur Williams may have had a gun. That 

inference fails to rise to proof beyond a reasonable doubt that 

Williams had a gun. Each robbery victim only supposed that a gun 

existed because of a verbal threat and a bulge where Williams held 

his hand under his clothing. No gun was seen or recovered. 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 commission of the robberies. 

- 6 -