                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia


JAMES ARTIS
                                         MEMORANDUM OPINION * BY
v.   Record No. 3259-01-1                 JUDGE LARRY G. ELDER
                                            DECEMBER 17, 2002
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                    James A. Cales, Jr., Judge

          Charles B. Lustig, Assistant Public Defender,
          for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     James Artis (appellant) appeals from his bench trial

conviction for use of a firearm in the commission of robbery in

violation of Code § 18.2-53.1.   On appeal, he contends the

holding in Yarborough v. Commonwealth, 247 Va. 215, 441 S.E.2d

342 (1994), compels the conclusion that the evidence was

insufficient to prove he actually possessed a firearm and that

this Court's interpretation of Yarborough in Elmore v.

Commonwealth, 22 Va. App. 424, 470 S.E.2d 588 (1996), and other

cases is erroneous.   We hold that the reasoning of Yarborough as




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
applied in Elmore controls the outcome of the case, and we

affirm appellant's conviction.

     On appeal, we view the evidence in the light most favorable

to the Commonwealth and accord the evidence all reasonable

inferences fairly deducible therefrom.   Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

Moreover, "[c]ircumstantial 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 846, 876 (1983).

     To obtain a conviction under 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. . . . [T]he fact that [the victim]
          merely thought or perceived that [the
          accused] was armed is insufficient to prove
          that he actually possessed a firearm.

Yarborough, 247 Va. at 218-19, 441 S.E.2d at 344.     Although

proof of "possession of a firearm is an 'essential element' of

the offense," id. at 219, 441 S.E.2d at 344, "circumstantial

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, 607-08, 484 S.E.2d 165, 167-68

(1997) (en banc) (affirming conviction where defendant "'pushed'

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an object into the victim's back and told him he would 'shoot'

if the victim did not cooperate").

     We applied these principles in Elmore, which involved the

robbery of a bank.   There, we held the evidence was sufficient

to prove the defendant possessed an actual firearm where he gave

the bank teller a note which said he was there to rob the bank

and had a gun, coupled with the defendant's statement, which he

made while pointing at his pocket, that he did not want to hurt

anyone.   22 Va. App. at 426, 429-30, 470 S.E.2d at 588-89, 590.

Thus, we held, "the evidence in [Elmore], unlike the evidence in

Yarborough, consist[ed] of more than the victim's mere belief or

perception that the defendant had a gun."   Elmore, 22 Va. App.

at 429, 470 S.E.2d at 590; see also McBride, 24 Va. App. at 607,

484 S.E.2d at 168 (implicitly approving of reasoning in Elmore).

     Here, as in Elmore, the evidence also consisted of more

than the victim's mere belief that appellant may have had a gun.

Appellant entered the victim's store with his hand behind his

back, beneath his baggy shirt, and expressly said to the victim,

"Don't make me pull this gun out of my pants."   Although the

victim did not know whether appellant did, in fact, have a gun,

appellant's threat was sufficient to cause the victim to

relinquish all the money in the cash register.   Finally, here,

as in Elmore, "[t]he only evidence that refute[d] [appellant's]

admission that he possessed a firearm [was] his general denial

[at trial], which the trial court rejected," as it was free to
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do.   Elmore, 22 Va. App. at 430, 470 S.E.2d at 590.   Thus, here,

as in Elmore, the only reasonable hypothesis flowing from the

remaining evidence, viewed in the light most favorable to the

Commonwealth, was that appellant "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."   Yarborough, 247

Va. at 218, 441 S.E.2d at 344; see also Commonwealth v. Burns,

240 Va. 171, 173-74, 395 S.E.2d 456, 457 (1990) (holding that

panel decision of Court of Appeals is binding upon subsequent

panels under rule of stare decisis).

      For these reasons, we hold the evidence was sufficient to

support appellant's conviction, and we affirm.

                                                          Affirmed.




                               - 4 -
Benton, J., dissenting.

                [T]o 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.

Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342,

344 (1994) (emphasis added).   As in every criminal case, "the

evidence must establish the accused's guilt beyond a reasonable

doubt and exclude every reasonable hypothesis of innocence."

Id.   Thus, 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 reverse this conviction

because, as in McBride, "[t]he evidence in this case failed to

prove beyond a reasonable doubt the presence of a firearm."      Id.

at 611, 484 S.E.2d at 169.   "Conviction of a crime is not

justified if the evidence creates only a suspicion or

probability of guilt."    Yarborough, 247 Va. at 218, 441 S.E.2d

at 344.




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