                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Elder, Petty and McCullough
UNPUBLISHED


              Argued at Richmond, Virginia


              DE’MON LAMONT BERRY
                                                                            MEMORANDUM OPINION ∗ BY
              v.     Record No. 2582-11-2                                    JUDGE WILLIAM G. PETTY
                                                                                NOVEMBER 27, 2012
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                                             Walter W. Stout, III, Judge

                               Patrick D. Killebrew (Patrick D. Killebrew, PLLC, on brief), for
                               appellant.

                               Benjamin H. Katz, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     De’mon Lamont Berry was convicted in a bench trial of robbery, in violation of

              Code § 18.2-58, the possession of a firearm after having been previously adjudicated delinquent

              for an offense that would be a violent felony if committed by an adult, in violation of

              Code § 18.2-308.2, and the use of a firearm in the commission of a robbery, in violation of

              Code § 18.2-53.1. Berry contends that the trial court erred in denying his motion to strike

              because the circumstantial evidence was insufficient to convict him of any of the three charges

              against him. For the following reasons, we disagree with Berry’s arguments. Therefore, we

              affirm his convictions.




                     ∗
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                                  I.

       “On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,

26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987)).

       On March 24, 2011, at approximately 4:46 a.m., Officer Steven Fields received a report

that two black men, one carrying a shotgun and the other carrying a silver handgun, robbed a

man who had been walking on Patterson Avenue in Richmond, Virginia. The victim testified

that a car he described as a dark green sedan drove past him as he was walking down the street.

There were four black males inside the sedan, all looking at him as the car drove by. About

thirty to forty seconds after the sedan passed him and disappeared around the corner, two black

males—one carrying a shotgun and the other carrying a silver handgun—ran up to him from the

direction that the car had turned before it was no longer in view. 1 At 5:01 a.m., approximately

seventeen blocks from the robbery, Officer Fields saw a dark green sedan matching the victim’s

description.

       At trial, Officer Fields testified that when he first passed the green car, he saw the

appellant, De’mon Berry, sitting in the right rear passenger seat. After Officer Fields pulled up

and stopped his own vehicle behind the car, Berry was standing outside the car, next to the right

rear passenger door. Berry subsequently walked away from the car. Upon later inspection of the

area around the right rear passenger door, Officer Fields noticed a silver handgun slightly

underneath the car. Additionally, Detective John Cary discovered a shotgun tucked in the trunk

of the car, hidden behind a speaker.




       1
           The victim was not able subsequently to identify either of the robbers.
                                               -2-
        In his interview with Detective Patrick Ripley following the robbery, Berry denied any

involvement in the robbery. He stated that his cousin gave him a ride to see a girl whom he had

met on the internet but never in person. Berry claimed that his cousin dropped him off near the

girl’s home. When asked where she lived, Berry said that she lived on Bromley Lane, but he

could not provide an address. According to Berry, after the girl refused to meet with him, he

called his friend “Jay” to give him a ride home. Berry stated that when Jay arrived to pick him

up, Jay was accompanied by two men that Berry had never met before. Berry claimed that he

had just gotten into the car when Officer Fields drove by and that he was sitting in the rear

driver’s side seat.

        Additionally, Berry gave Detective Ripley the purported phone numbers of both the girl

and Berry’s cousin. The number Berry provided for the girl was disconnected and had

previously been associated with an address on Barton Avenue, not Bromley Lane. Detective

Ripley also dialed the number supposedly assigned to Berry’s cousin and discovered that the

number belonged to a man who said he did not know Berry or his cousin.

                                                  II.

        Berry assigns error to the trial court’s denial of his motion to strike. Berry contends that

the evidence was insufficient to convict him of any of the three charges against him. We

disagree.

        “When . . . sufficiency of the evidence [is challenged following] . . . a bench trial, ‘the

trial court’s judgment is entitled to the same weight as a jury verdict and will not be disturbed on

appeal unless it is plainly wrong or without evidence to support it.’” Burrell v. Commonwealth,

58 Va. App. 417, 433, 710 S.E.2d 509, 517 (2011) (quoting Hickson v. Commonwealth, 258 Va.

383, 387, 520 S.E.2d 643, 645 (1999)). It is the prerogative of the trier of fact “‘to resolve

conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic

                                                 -3-
facts to ultimate facts.’” Brown v. Commonwealth, 56 Va. App. 178, 185, 692 S.E.2d 271, 274

(2010) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “‘Whether an alternative

hypothesis of innocence is reasonable is a question of fact and, therefore, is binding on appeal

unless plainly wrong.’” Archer, 26 Va. App. at 12-13, 492 S.E.2d at 832 (quoting Hamilton v.

Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993)).

                                           A. Robbery

       First, Berry contends that the trial court erred in finding that the evidence was sufficient

to demonstrate his involvement in the robbery. Berry argues that the “purely circumstantial”

evidence submitted to the trial court established merely the suspicion of his involvement in the

robbery. Essentially, Berry alleges that he was not present in the sedan prior to the robbery, that

only after the robbery took place did the driver of the sedan pick him up, and that therefore, the

evidence is insufficient to establish his involvement in the robbery. We disagree.

       “Circumstantial evidence is as competent and is entitled to as much weight as direct

evidence, provided it is sufficiently convincing to exclude every reasonable hypothesis except

that of guilt.” Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983). Here,

the circumstantial evidence is sufficient to exclude every hypothesis except that of guilt. A

reasonable inference could be drawn that the dark green sedan that passed the victim just before

he was robbed was the same dark green sedan that Officer Fields discovered fifteen minutes after

the robbery occurred, at a location only seventeen blocks from where the victim was robbed.

This is especially compelling in light of the victim’s testimony that the two black males who

robbed him were carrying a shotgun and a silver handgun, alongside the fact that the police

found a shotgun in the trunk of the sedan and a silver handgun on the ground next to where

Officer Fields saw Berry standing.




                                                -4-
       In addition, the finder of fact was permitted to reject Berry’s contention that he was not

involved in the commission of the robbery. Notwithstanding Berry’s proffered explanations

concerning the means by which he came to be present in the sedan at the time of his encounter

with Officer Fields, the trial court was not required to credit his testimony. See Armstead v.

Commonwealth, 56 Va. App. 569, 581, 695 S.E.2d 561, 567 (2010). Indeed, “‘[i]n its role of

judging witness credibility, the fact finder is entitled to disbelieve the self-serving testimony of

the accused and to conclude that the accused is lying to conceal his guilt.’” Flanagan v.

Commonwealth, 58 Va. App. 681, 702, 714 S.E.2d 212, 222 (2011) (quoting Marable v.

Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998)). Here, Detective

Ripley’s follow-up investigation attempting to verify the story provided by Berry established that

Berry was not being truthful. Moreover, the trial court expressly found incredible Berry’s

explanations for where he was that night. The trial court was entitled to infer that Berry provided

such falsehoods to conceal his involvement in the robbery.

       Thus, we hold that the trial court did not err in finding the evidence sufficient to establish

Berry’s involvement in the robbery.

                                    B. Possession of a Firearm

       Next, Berry argues that the evidence was insufficient to demonstrate that he had

possession of either of the firearms—the shotgun found in the trunk or the handgun found on the

ground outside the car. He argues that the evidence did not establish that he knew the weapons

were in the car. We disagree.

       Code § 18.2-308.2 provides that “[i]t shall be unlawful for . . . any person who has been

convicted of a felony . . . to knowingly and intentionally possess . . . any firearm.” Possession

can be either actual or constructive. See Bolden v. Commonwealth, 275 Va. App. 144, 148, 654

S.E.2d 584, 586 (2008) (“A conviction for the unlawful possession of a firearm can be supported

                                                 -5-
exclusively by evidence of constructive possession; evidence of actual possession is not

necessary.”). Constructive possession of a firearm can be established by “‘evidence of acts,

statements, or conduct by the defendant or other facts and circumstances proving that the

defendant was aware of the presence and character of the firearm and that the firearm was

subject to his dominion and control.’” Id. (quoting Rawls v. Commonwealth, 272 Va. 334, 349,

634 S.E.2d 697, 705 (2006)). Although a defendant’s proximity to the firearm is not dispositive,

“it is a circumstance probative of possession and may be considered as a factor in determining

whether the defendant possessed the firearm.” Id.

       Berry argues that although testimony placed him in the car where the firearms were

found, there was no evidence that he knew the weapons were in the car. According to Berry,

proximity to the weapons is the only thing that could suggest dominion and control. Berry

contends that the circumstances of this case create only a suspicion that he possessed the firearm.

       Here, it was reasonable for the finder of fact to conclude that Berry at least constructively

possessed the handgun. Not only was Berry seen standing next to the right rear passenger door,

the area where the handgun was found, but Officer Fields also testified that Berry was sitting in

the right rear passenger seat of the sedan when Officer Fields first passed the sedan while

driving. Indeed, in light of Berry’s contention to the police that he was not sitting behind the

right passenger seat, the trier of fact could reasonably infer that Berry “‘was aware of the

presence and character of the firearm and that the firearm was subject to his dominion and

control.’” Id. (quoting Rawls, 272 Va. at 349, 634 S.E.2d at 705). Ultimately, “the trial court,

sitting as factfinder, was at liberty to discount [Berry’s] self-serving statements as little more

than lying to ‘conceal his guilt,’ and could treat such prevarications as ‘affirmative evidence of

guilt.’” Armstead, 56 Va. App. at 581, 695 S.E.2d at 567 (quoting Coleman v. Commonwealth,

52 Va. App. 19, 25, 660 S.E.2d 687, 690 (2008)).

                                                 -6-
       Thus, we hold that the trial court did not err in finding the evidence sufficient to establish

that Berry had possession of a firearm in violation of Code § 18.2-308.2.

                       C. Use of a Firearm in the Commission of a Felony

       Lastly, Berry contends that the trial court erred in finding the evidence sufficient to prove

that he used a firearm in the commission of a felony. We disagree.

       Code § 18.2-53.1 provides that “[i]t shall be unlawful for any person to use or attempt to

use any . . . firearm . . . while committing or attempting to commit . . . robbery.” The term

“firearm,” as used in Code § 18.2-53.1, “includes any instrument that is capable of expelling a

projectile by the force of gunpowder.” Thomas v. Commonwealth, 25 Va. App. 681, 685, 492

S.E.2d 460, 462 (1997). The term “firearm” also refers to “any instrument that ‘gives the

appearance’ of having the capacity to propel a bullet by the force of gunpowder.” Id. (quoting

Holloman v. Commonwealth, 221 Va. 196, 199, 269 S.E.2d 356, 358 (1980) (holding that a BB

pistol that fired BBs by the force of a spring, but resembled a .45 caliber handgun, was a

“firearm” because it “gave the appearance of having a firing capability”)).

       Here, the trial court credited the victim’s testimony that a firearm with the appearance of

having a firing capability was used in the commission of the robbery against him. Additionally,

the trial court credited the victim’s testimony that the specific weapons used to rob him matched

those recovered from the sedan. The trial court also credited the testimony of Officer Fields,

which placed Berry in the specific location inside the sedan next to where the handgun was later

recovered. The combined effect of these circumstances reasonably led the trial court to conclude

that Berry was guilty of using a firearm in the commission of a felony.

       Thus, we hold that the trial court did not err in concluding that the evidence was

sufficient to convict Berry of using a firearm in the commission of a robbery in violation of

Code § 18.2-53.1.

                                                -7-
                                       III.

For the foregoing reasons, we affirm Berry’s convictions.

                                                            Affirmed.




                                      -8-
