                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Retired Judge Brown ∗
Argued at Salem, Virginia


MAHTOREE L. BELL, III
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 0318-02-1              JUDGE RUDOLPH BUMGARDNER, III
                                                JULY 1, 2003
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                     Johnny E. Morrison, Judge

           Joseph R. Winston, Special Appellate Counsel
           (Public Defender Commission, on briefs), for
           appellant.

           Stephen R. McCullough, Assistant Attorney
           General (Jerry W. Kilgore, Attorney General,
           on brief), for appellee.


     The trial court convicted Mahtorhee L. Bell, III, of

attempted robbery, armed statutory burglary, grand larceny, two

counts of abduction, and four counts of use of a firearm in the

commission of a felony.     He argues the evidence was insufficient

to prove he was armed with a deadly weapon, Code § 18.2-91, 1 and


     ∗
       Retired Judge J. Howe Brown, Jr., took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400.
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       "If any person commits any of the acts mentioned in
§ 18.2-90 with intent to commit larceny . . . he shall be guilty
of statutory burglary . . . which offense shall be a Class 3
felony. However, if the person was armed with a deadly weapon
that the force used to detain the victims was incidental to the

force used to effect the attempted robbery.   We conclude the

trial court did not err and affirm the convictions.

     We view the evidence, and the reasonable inferences fairly

deducible therefrom, in the light most favorable to the

Commonwealth.   Commonwealth v. Taylor, 256 Va. 514, 516, 506

S.E.2d 312, 313 (1998).   Frances Cherry awoke to the sound of

drawers being opened and closed in her roommate's bedroom.    She

opened the door to that room and found the defendant inside.

When Cherry asked what he wanted, he demanded money.    When she

told her boyfriend they were being robbed, the defendant

responded, "You tell your man if he comes out of that room, I

have a gun, I will shoot you."    As he spoke, he patted the side

of his bulky leather jacket.   Cherry did not see a gun, but she

believed he had a gun and "fear[ed] for her life."     The

boyfriend heard the defendant's threat and stayed in the bedroom

because "he didn't feel the need to come out and get anyone

killed that day."

     The defendant went to the living room where he repeated his

demand for money.   He again said that he had a gun.   He forced

Cherry to unplug the DVD player and then took it and a cell

phone, two cell phone batteries, and a wedding ring.    Before the


at the time of such entry, he shall be guilty of a Class 2
felony." Code § 18.2-91.



                                 - 2 -
defendant would leave, he ordered Cherry into the bedroom.     Once

she complied, he left the apartment.

     The defendant maintains his statements that he had a gun

were uncorroborated assertions and constituted the only evidence

that he possessed a gun.   He argues such evidence was

insufficient to show he committed statutory burglary while armed

with a deadly weapon.   Code § 18.2-91. 2

     "The finder of fact is entitled to consider all of the

evidence, without distinction [between circumstantial and direct

evidence], in reaching its determination."   Commonwealth v.

Hudson, 265 Va. 505, 512-13, 578 S.E.2d 781, 785 (2003); Byers

v. Commonwealth, 23 Va. App. 146, 151, 474 S.E.2d 852, 855

(1996) (Code § 18.2-53.1).   The fact finder "determine[s] what

inferences are to be drawn from proved facts, provided the

inferences are reasonably related to those facts."   Inge v.

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567-68 (1976).

     In Yarborough v. Commonwealth, 247 Va. 215, 216-17, 441

S.E.2d 342, 343 (1994), the defendant kept his hands in his

pocket during a robbery and twice said, "this is a stick up."

The victim saw something protruding from his pocket and thought

he had a gun.   When the police apprehended him shortly after the


     2
       A firearm is a deadly weapon. See Cox v. Commonwealth,
218 Va. 689, 691-92, 240 S.E.2d 524, 526 (1978). Thus, if the
defendant possessed a firearm, the evidence is sufficient to
prove his conviction under Code § 18.2-91.



                               - 3 -
robbery, he had a beer can, but no firearm.    The Supreme Court

reversed his conviction of using a firearm during the robbery

because the evidence failed to exclude the reasonable hypothesis

that the victim mistook the beer can for a weapon.

       In Elmore v. Commonwealth, 22 Va. App. 424, 430, 470 S.E.2d

588, 590 (1996), the defendant gave a bank teller "a note

stating that he had a 'gun,' pointed to his pocket and said that

he did not want to hurt anyone."   At trial, he denied he

possessed a firearm.   In affirming his conviction of using a

firearm during a bank robbery, this Court distinguished

Yarborough, because "the defendant's out-of-court statement

admitted the existence of a 'gun.'"     Id. at 429, 470 S.E.2d at

590.   The evidence amounted to more than the victim's mere

belief that the defendant was armed.

       In McBride v. Commonwealth, 24 Va. App. 603, 484 S.E.2d 165

(1997) (en banc), the defendant pushed an object into the

victim's back and said, "don't turn around or I'll shoot."

While the victim did not see a gun, the fact finder could infer

from the defendant's threat to shoot that he had a gun.     Id. at

607-08, 484 S.E.2d at 167.   This Court affirmed the defendant's

conviction of using a firearm during a robbery.

"[C]ircumstantial evidence, such as appellant's statement that

he possesses a firearm, can be sufficient evidence to prove

beyond a reasonable doubt that an accused indeed possessed a

firearm."    Id. at 607, 484 S.E.2d at 167.

                                - 4 -
     In this case, the evidence is not simply an uncorroborated

assertion by the defendant that he had a gun.     As the defendant

told Cherry he had a gun, he patted his pocket and threatened to

shoot if the boyfriend came out of the bedroom.     As he proceeded

to steal items from the living room, he repeated his assertion

that he had a gun and his threat to use it.     His statements, his

assertive conduct, and the circumstances surrounding them were

an "implied assertion" that he had a firearm.      See Redd v.

Commonwealth, 29 Va. App. 256, 258-59, 511 S.E.2d 436, 437-38

(1999) (Code § 18.2-308.2).   This case is controlled by Elmore

and is distinguished from Yarborough because no reasonable

hypothesis of innocence arose from this evidence.

     The defendant maintains the force used to detain the two

victims was no more than that necessary to accomplish the

attempted robbery.   A defendant may not be convicted of both

abduction and attempted robbery unless "the detention committed

in the act of abduction is separate and apart from, and not

merely incidental to, the restraint employed in the commission

of" the second offense.    Brown v. Commonwealth, 230 Va. 310,

314, 337 S.E.2d 711, 714 (1985) (abduction and rape).

     The defendant's threat to use the gun effectively detained

Cherry's boyfriend in the bedroom.      After the defendant moved to

the living room, he forced Cherry to unplug the DVD player and

took it and other items.   Then he ordered her back to her

bedroom.   The fact finder could reasonably conclude the

                                - 5 -
defendant ordered the victim to the bedroom in order to avoid

detection and to better his escape.    See Phoung v. Commonwealth,

15 Va. App. 457, 462, 424 S.E.2d 712, 715 (1992).   The acts of

detaining the boyfriend and later ordering Cherry back to her

room were separate and apart from the attempted robbery.    They

were not inherent in or necessary to complete the attempted

robbery.   Accordingly, the evidence was sufficient to prove

beyond a reasonable doubt the defendant committed two acts of

abduction.

     The defendant also maintains that statutory burglary, Code

§ 18.2-91, is not encompassed within the meaning of "burglary"

as used in Code § 18.2-53.1, and that he cannot be convicted of

both burglary while armed with a deadly weapon and the use of a

firearm during the commission of burglary.   However, he

presented neither of these arguments to the trial court, and we

will not consider them for the first time on appeal.

Rule 5A:18; Ohree v. Commonwealth, 26 Va. App. 299, 308, 494

S.E.2d 484, 488 (1998).   The record reflects no reason to invoke

the good cause or ends of justice exceptions to Rule 5A:18.

     Credible evidence supports the convictions.    Accordingly,

we affirm.

                                                           Affirmed.




                               - 6 -
Benton, J., concurring and dissenting.

                                  I.

     I concur in the holding that issues two and three,

concerning burglary, and issue five, concerning the abduction of

Cherry, are procedurally defaulted and are barred from review by

Rule 5A:18.     I dissent from the remaining portions of the

majority opinion.

                                  II.

     To convict an accused of armed statutory burglary in

violation of Code § 18.2-91, the Commonwealth must prove the

accused was armed with a deadly weapon.    "Conviction of a crime

is not justified if the evidence creates only a suspicion of

guilt."   Yarborough v. Commonwealth, 247 Va. 215, 218, 441

S.E.2d 342, 344 (1994).    As in every criminal case, "the

evidence must establish the accused's guilt beyond a reasonable

doubt."   Id.    For the reasons more 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 reverse the conviction

because the evidence failed to prove beyond a reasonable doubt

the presence of a weapon.     See also Yarborough, 247 Va. at

218-19, 441 S.E.2d at 344 (holding the "evidence that [the

accused] 'may have had' a firearm in his possession creates

merely a suspicion of guilt . . . [that] is insufficient to

prove . . . he actually possessed a firearm").


                                 - 7 -
                                III.

     I would also reverse the conviction for the abduction of

Hancock.   The trial judge convicted Bell of attempted robbery.

The principle is well established that "in cases of robbery,

there usually is a detention of the victim and often a seizure."

Johnson v. Commonwealth, 221 Va. 872, 878, 275 S.E.2d 592, 596

(1981).    This principle applies equally to attempted robbery and

brings into play the following holding:

            [O]ne accused of abduction by detention and
            another crime involving restraint of the
            victim, both growing out of a continuing
            course of conduct, is subject upon
            conviction to separate penalties for
            separate offenses only when the detention
            committed in the act of abduction is
            separate and apart from, and not merely
            incidental to, the restraint employed in the
            commission of the other crime.

Brown v. Commonwealth, 230 Va. 310, 314, 337 S.E.2d 711, 713-14

(1985).

     The evidence failed to prove that the detention of Hancock

was "separate and apart from" the kind of restraint intrinsic in

the act of attempting a robbery within the residence.      "[I]n the

enactment of the abduction statute the General Assembly did not

intend to make the kind of restraint which is an intrinsic

element of crimes such as rape, robbery, and assault a criminal

act, punishable as a separate offense."    Id. at 314, 337 S.E.2d

at 713.



                                - 8 -
     For these reasons, I would reverse the four convictions for

use of a firearm while committing a felony (Code § 18.2-53.1),

the conviction for armed statutory burglary (Code § 18.2-91),

and the conviction for simple abduction of Hancock (Code

§ 18.2-47). 3




     3
       Although the conviction order recites that the trial
judge convicted Bell of simple abduction (Code § 18.2-47), a
lesser-included offense of Code § 18.2-48, and sentenced him
consistent with the punishment for simple abduction, the
conviction order reflects Code § 18.2-48 rather than Code
§ 18.2-47.


                              - 9 -
