                                 COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Senior Judges Willis and Annuziata
Argued at Alexandria


MULUKEN HUILA WUBNEH
                                                                MEMORANDUM OPINION * BY
v.       Record No. 0239-07-4                                   JUDGE JERE M.H. WILLIS, JR.
                                                                    JANUARY 8, 2008
COMMONWEALTH OF VIRGINIA


                      FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                                 William T. Newman, Jr., Judge

                   Michael F. Devine (Devine, Connell & Sheldon, P.L.C., on brief),
                   for appellant.

                   Joshua M. Didlake, Assistant Attorney General (Robert F.
                   McDonnell, Attorney General, on brief), for appellee.


         On appeal from his conviction in a bench trial for using a firearm in the commission of a

robbery, in violation of Code § 18.2-53.1, Muluken Huila Wubneh contends that the evidence was

insufficient to support his conviction because it failed to prove that the object he used to

intimidate the victim was, in fact, a firearm. We disagree and affirm the judgment of the trial

court.

                           On appeal, we review the evidence in the light most
                   favorable to the Commonwealth, granting to it all reasonable
                   inferences fairly deducible therefrom. The judgment of a trial
                   court sitting without a jury is entitled to the same weight as a jury
                   verdict and will not be set aside unless it appears from the evidence
                   that the judgment is plainly wrong or without evidence to support
                   it.

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).




         *
             Pursuant to Code § 17.1-413, this opinion is not designated for publication.
        So viewed, the evidence proved that Wubneh and Solomon Tibebu robbed Mohamed

Mohamed, a taxicab driver. Mohamed testified that Wubneh displayed a “gun” and Tibebu

displayed a knife. They demanded that Mohamed give them his money and cell phone.

Mohamed said that Wubneh “put the gun to [the back of his] head, [and] he kept pushing

[Mohamed’s] head forward.” Mohamed saw the gun when he turned to look in the glove box for

more money. He described the gun as hard and black and said that it “looked like a real gun.”

        Tibebu testified that he used a knife during the robbery. He testified that Wubneh used a

BB gun.

        The object Wubneh used during the robbery was never located or produced at trial. After

hearing argument by counsel, the trial court denied the motion to strike the evidence, holding

that “the Commonwealth has put forth sufficient evidence to find that this was, in fact, a firearm,

and that the use and display here, based upon everything that the victim has testified to, it is

sufficient.”

               [T]o prove the offense of use of a firearm, pursuant to 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.”

McBride v. Commonwealth, 24 Va. App. 603, 606, 484 S.E.2d 165, 167 (1997) (en banc)

(quoting Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994)); see

also Powell v. Commonwealth, 268 Va. 233, 236, 602 S.E.2d 119, 120 (2004).

                       The purpose of Code § 18.2-53.1, keyed to serious crimes
               and prescribing inflexible penalties, is to deter violent criminal
               conduct. The statute not only is aimed at preventing actual
               physical injury or death but also is designed to discourage criminal
               conduct that produces fear of physical harm. Such fear of harm
               results just as readily from employment of an instrument that gives
               the appearance of having a firing capability as from use of a
               weapon that actually has the capacity to shoot a projectile. The
               victim of a crime can be intimidated as much by a revolver that
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               does not fire bullets as by one that does; such victim cannot be
               required to distinguish between a loaded pistol and a spring gun
               when it is brandished during commission of a felony.

Holloman v. Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980) (upholding

conviction for using a firearm while committing rape where the “object in question” proved to be

a BB gun; Court relied “upon proof that defendant employed an instrument which gave the

appearance of having a firing capability, whether or not the object actually had the capacity to

propel a bullet by the force of gunpowder,” id. at 197, 199, 269 S.E.2d at 357, 358) (citations

omitted).

       In Sprouse v. Commonwealth, 19 Va. App. 548, 549, 453 S.E.2d 303, 304 (1995), the

defendant displayed what appeared to the victim to be a firearm during a robbery. A few days

later, police recovered a toy gun from Sprouse’s car, and at trial, the Commonwealth conceded

the object was a toy. Id. at 550, 453 S.E.2d at 305. Reversing Sprouse’s conviction, we held that

a defendant could not be convicted of violating Code § 18.2-53.1 “unless the evidence discloses

beyond a reasonable doubt that the object used to cause the victim to reasonably believe it was a

firearm was, in fact, a firearm.” Id. at 551-52, 453 S.E.2d at 306.

               Whether a particular object used by an accused during the
               commission of a felony was a firearm may be proved by direct
               evidence, circumstantial evidence, or both. Prior case law
               indicates that, when determining whether a particular object is a
               “firearm,” the fact finder may consider the victim’s visual and
               nonvisual observations of the object, the victim’s knowledge of
               firearms, the accused’s representations about the object during the
               commission of the felony, expert testimony, and the appearance of
               the object itself when it is admitted into evidence. However, the
               evidence regarding the object must prove beyond a reasonable
               doubt that it is a “firearm” as that term is used in Code § 18.2-53.1,
               and when the evidence regarding the object is purely
               circumstantial, it must exclude all reasonable hypotheses of
               innocence.

Thomas v. Commonwealth, 25 Va. App. 681, 686-87, 492 S.E.2d 460, 463 (1997) (finding the

evidence sufficient to prove a BB pistol used by Thomas to rob the victim was a firearm, based

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on the victim’s observations and the appearance of the object, which was admitted and found to

resemble a real firearm, thus excluding reasonable hypothesis it was mere toy).

       Wubneh argues that the evidence proved that he used only a BB gun in robbing

Mohamed, not a firearm, and that our holding in Sprouse requires reversal of his conviction. We

do not reach this question.

       “It was the province of the trier of fact to consider all the evidence and resolve any

conflicts.” Powell, 268 Va. at 237, 602 S.E.2d at 121. Mohamed’s testimony that the object felt

like and appeared to be a real firearm conflicted with Tibebu’s testimony that it was a BB gun.

The trier of fact resolved this conflict against Wubneh, concluding that the evidence proved

Wubneh used a firearm. See Thomas, 25 Va. App. at 687-88, 492 S.E.2d at 463 (finding

sufficient evidence to prove BB pistol used by Thomas to rob victim was firearm based on

victim’s observations and appearance of object); Byers v. Commonwealth, 23 Va. App. 146,

152, 474 S.E.2d 852, 855 (1996) (upholding conviction based on circumstantial evidence where

victim felt metal object he thought was gun against his neck and defendant said “this is a

stick-up”); Wilson v. Commonwealth, 19 Va. App. 535, 536-37, 452 S.E.2d 884, 885 (1995)

(upholding conviction where clerk was familiar with guns and testified she saw handle of gun).

       Unlike the situations in Thomas and Sprouse, the object used in this case was never

recovered. The only evidence that it was a BB gun came from Wubneh’s accomplice, whose

testimony the fact finder rejected. Thus, the Commonwealth presented competent and credible

evidence sufficient to prove beyond a reasonable doubt that Wubneh possessed and used a

firearm during the robbery.

       The judgment of the trial court is affirmed.

                                                                                          Affirmed.




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