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WILLIAMS v. COMMONWEALTH (53228)



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WILLIAMS

v.

COMMONWEALTH


MARCH 20, 2001

Record No. 0326-00-1

Present: Judges Benton, Agee and Senior Judge
Hodges

Argued at Chesapeake, Virginia

JOHN ARTHUR WILLIAMS, JR.

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT
NEWS

Verbena M. Askew, Judge


MEMORANDUM OPINION[1] BY JUDGE
WILLIAM H. HODGES

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 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.

[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 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.

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.

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.

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, this opinion is not
designated for publication.

 

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