                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Overton
Argued at Norfolk, Virginia


TERESA WASHINGTON
                                           MEMORANDUM OPINION * BY
v.   Record No. 0568-98-1                  JUDGE NELSON T. OVERTON
                                                APRIL 6, 1999
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                 Russell I. Townsend, Jr., Judge

          Reginald B. Frazier for appellant.

          Michael T. Judge, Assistant Attorney General
          (Mark L. Earley, Attorney General, on brief),
          for appellee.


     A judge convicted Teresa Washington on two charges of

abduction and two charges of use of a firearm in the commission

of robbery.   Washington had previously pleaded guilty to two

counts of robbery.    On this appeal, Washington contends that the

evidence was insufficient to prove that she used a firearm in

the commission of the robberies.      We affirm the convictions.

                                 I.

     "Where the sufficiency of the evidence is challenged after

conviction, it is our duty to consider it in the light most

favorable to the Commonwealth and give it all reasonable

inferences fairly deducible therefrom."      Higginbotham v.

    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).      So

viewed, the evidence proved that Magdelena Herrera and Patricia

K. Westman were both working as clerks at a convenience store

when Washington robbed them.   Herrera testified that Washington

approached from Herrera's back and used her right hand to lift

Herrera by the collar.   Washington pointed something into

Herrera's back, said "this is a robbery," and commanded Herrera

to walk to the bathroom.   Herrera testified that whatever had

been pointed into her back felt like a weapon, but that she was

not sure because she was scared.    Herrera could not recall

Washington saying anything to Westman.

     Westman was washing coffee pots in the back room when

Washington appeared with Herrera.   Westman testified that

Washington told her to stop what she was doing or Washington

would "blow [their] fucking heads off."   Westman testified that

Washington had something in the back of Herrera's neck, but

Westman could not discern what it was.    Because of Washington's

comment, Westman assumed Washington had a gun.   However, both

Herrera and Westman testified that they never actually saw a

firearm.   Westman went into the bathroom with Herrera.

     After her arrest, Washington made oral and written

statements to the police in which she admitted robbing the

store.   In her oral statement, Washington denied having a gun.

She did not mention a gun in her written statement.   According



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to Washington's statement, when Washington told Herrera that she

was a robber, Herrera repeatedly said "don't shoot me."

Washington told the police that as she and Herrera approached

Westman, Washington responded by saying, "I'm not going to shoot

you.    I'm not the kind of person that comes in to blow your head

off."    Washington said she had her hands in Herrera's back

leading her forward.

                                  II.

        To convict a defendant of using a firearm in the commission

of a felony under Code § 18.2-53.1, "the Commonwealth must prove

that the accused actually had a firearm in [her] possession and

that [she] used or attempted to use the firearm or displayed the

firearm in a threatening manner while committing or attempting

to commit robbery."     Yarborough v. Commonwealth, 247 Va. 215,

218, 441 S.E.2d 342, 344 (1994).    "[P]ossession of a firearm is

an 'essential element' of the offense."     McBride v.

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

(en banc).     However, the Commonwealth does not have to prove

that anyone actually saw the gun, and the Commonwealth may prove

by circumstantial evidence the use of a firearm.     See id. at

607-08, 484 S.E.2d at 167-68.     See also Elmore v. Commonwealth,

22 Va. App. 424, 429-30, 470 S.E.2d 588, 590 (1996) (finding

sufficient evidence that the accused possessed a gun where he




                                 - 3 -
gave the victim a note stating that he had a gun, he stated that

he did not want to hurt anyone, and he pointed to his pocket).

       Herrera believed that the object Washington placed at her

back was a weapon.   When Herrera pleaded that Washington not

shoot her, Washington did not respond that she did not have a

gun.   She merely told Herrera that she would not shoot.

Furthermore, Westman testified that Washington was pointing

something into the back of Herrera's neck when she threatened to

"blow [their] fucking heads off."

       From this evidence, the trial court could infer beyond a

reasonable doubt that Washington possessed a firearm.   The

Commonwealth's evidence was competent, was not inherently

incredible, and was sufficient to prove beyond a reasonable

doubt that Washington was guilty of using a firearm in the

commission of robbery.   Accordingly, we affirm the convictions.

                                                    Affirmed.




                                - 4 -
Benton, J., dissenting.

     "[A] defendant may not be convicted for the use of a

firearm under 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."    Sprouse v. Commonwealth, 19 Va. App. 548, 551-52, 453

S.E.2d 303, 306 (1995).   In Yarborough v. Commonwealth, 247 Va.

215, 441 S.E.2d 342 (1994), where the accused said "this is a

stickup" and had his hand on an object protruding from his

pocket that the victim believed was a firearm, the Supreme Court

ruled as follows:

               The Attorney General contends that "the
            law does not require that a firearm actually
            be seen or even used in order to sustain a
            conviction under § 18.2-53.1" and that the
            evidence is sufficient to support a
            conviction "if the victim is made to feel
            that an assailant has a firearm, and reacts
            in response to that perception." Consistent
            with that contention, the Court of Appeals
            stated that "actual sighting of the weapon
            is unnecessary for a conviction under Code
            § 18.2-53.1." Continuing, the Court of
            Appeals noted that, although [the victim]
            saw no gun, she saw what she believed was a
            gun and that [the accused] "may have had a
            gun in his right pocket at the time of the
            offense."

            *       *     *      *      *      *      *

            [W]e reject the Attorney General's
            contention and the conclusion reached by the
            Court of Appeals.




                                - 5 -
               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.

               In the present case, evidence that [the
            accused] "may have had" a firearm in his
            possession creates merely a suspicion of
            guilt. Possession of a firearm is an
            essential element of the statutory offense,
            and the fact that [the victim] merely
            thought or perceived that [the accused] was
            armed is insufficient to prove that he
            actually possessed a firearm. Clearly, the
            evidence does not establish guilt beyond a
            reasonable doubt and exclude every
            reasonable hypothesis of innocence.
            Therefore, it is insufficient, as a matter
            of law, to support the firearm conviction.

Id. at 217-19, 441 S.E.2d at 343-44 (footnotes and citations

omitted).

     Both Herrera and Westman testified that they saw neither a

firearm nor any object that resembled a firearm.   The detective

who investigated the robbery testified that neither Herrera nor

Westman actually saw a firearm in Washington's hand.

Furthermore, when the detective interviewed Washington shortly



                                - 6 -
after the robbery, Washington confessed to committing the

robbery but denied having a firearm.

     Indeed, the testimony of Herrera and Westman conclusively

establishes that Washington did not have a firearm.   Herrera

testified that Washington held her collar and picked her up

using one hand.   Her testimony established that Washington was

pointing something in Herrera's back with her free hand.

Although Westman testified on direct examination that she "saw

[Washington] had her hand up there" at Herrera's neck, on

cross-examination, she testified that she "did not see her

actual hand."   Westman also testified however, that she saw

Washington's other hand (the hand Herrera said was pointing to

her back) and that Washington's other hand did not hold a

firearm.    In response to the question, "you never saw a firearm

at any time," Westman testified "No.    I just assumed that she

had one."

     The evidence in this case failed to prove beyond a

reasonable doubt the presence of a firearm because the presence

of a firearm could only be found by drawing impermissible

inferences from the evidence.   In improperly affirming the

conviction in Yarborough, this Court held that "[a]lthough no

gun was found on appellant, he may have had a gun . . . at the

time of the offense. . . .   [F]rom the totality of the

circumstances, it could be inferred that he had one."



                                - 7 -
Yarborough v. Commonwealth, 15 Va. App. 638, 642-43, 426 S.E.2d

131, 134 (1993), rev'd, 247 Va. 215, 441 S.E.2d 342 (1994).         The

Supreme Court reversed that conviction even though the jury in

Yarborough had inferred from Yarborough's statement and the

object protruding from his right pocket that Yarborough had a

firearm.    That inference, as in this case, was based solely on

suspicious circumstances.     See 247 Va. at 218-19, 441 S.E.2d at

344.

        The Commonwealth failed to exclude the hypothesis that when

Washington approached the victim from behind and, according to

Westman's testimony, threatened to shoot, Washington was using

her hand, not a firearm, to frighten them.      Westman's testimony

at trial proved that Westman saw the hand that Herrera believed

held a weapon as it was pointing against Herrera's back.

Westman saw no firearm in that hand.

        The mere fact that the victim merely thought or perceived

that the accused was armed is insufficient to prove that he

actually possessed a firearm. 1     See id. at 219, 441 S.E.2d at


    1
     At trial, the Commonwealth proceeded on the theory that the
victim's belief that Washington had a firearm was sufficient
proof. Indeed, at the conclusion of the evidence the following
discussion occurred regarding the firearm charges:

             [DEFENSE ATTORNEY]:   I have a motion.

             THE COURT: Can we take them in the order I
             would like to hear them in? You want to talk
             about the firearm first, don't you?



                                   - 8 -
[DEFENSE ATTORNEY]:   Yes, sir.

THE COURT: Did feloniously use or display a
firearm in a threatening manner. Now, first
of all, I guess we don't need to get too deep
into it. Let's let the two of you educate
me, and I don't mean that flippantly either.
Because there is no evidence, and I think Mr.
Campbell agrees, or I will put it this way,
there is not sufficient evidence that there
was actually any firearm involved.

[DEFENSE ATTORNEY]:   Exactly.

THE COURT: You may say a little bit of
circumstantial evidence but not enough to say
there was a firearm involved.

Now, Mr. Campbell, is the Commonwealth
contending that because, let's just say for
the sake of argument -- I'm not saying this
is the evidence but to get to the legal
point, if there was a reasonable basis say
for a victim concluding that there was a
firearm, we are not talking about robbery but
if there is a sufficient basis for a victim
concluding that a firearm was being used we
all agree. There was no firearm but there
was a sufficient basis for the witness to
reasonably conclude that there was a firearm
and for a trier of fact to believe that the
victim did, in fact, think there was a
firearm involved.

Does that change this particular charge any?

[COMMONWEALTH'S ATTORNEY]: No, Judge. The
theory the Commonwealth rests on is that the
victims believed.

THE COURT: But in the charge of a firearm --
I am not talking about robbery.

[COMMONWEALTH'S ATTORNEY]:    No, sir, not for
the firearm charge.



                      - 9 -
344.   The evidence regarding the object must prove beyond a

reasonable doubt that it is a firearm.        See id. at 218, 441

S.E.2d at 344.     Moreover, when the evidence is purely

circumstantial, it must exclude all reasonable hypotheses of

innocence.     See id.    The evidence in this case establishes only

a suspicion that Washington had a gun.        "But a suspicion of

guilt, however strong, or even a probability of guilt, is

insufficient to support a criminal conviction."        Bishop v.

Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984).

       For these reasons, I would reverse the convictions.




             THE COURT: Is there any evidence to support
             the firearm charge?

             [COMMONWEALTH'S ATTORNEY]: Yes, there is,
             Judge. Maybe I don't understand the Court's
             point.

             THE COURT:   Maybe I am missing something.

             [DEFENSE ATTORNEY]:    I move to strike on all
             the charges, Judge.

             THE COURT: Let's talk about the firearm.
             What I guess I am saying is to convict on a
             firearm charge do you have to prove that
             there actually was a firearm?

             [COMMONWEALTH'S ATTORNEY]:     No, sir.

That argument by the Commonwealth resurrects the theory that the
Supreme Court expressly rejected in Yarborough. See 247 Va.
217-18, 441 S.E.2d at 343-44.




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