                      COURT OF APPEALS OF VIRGINIA


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


MARK ANTHONY POWELL
                                          MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1490-02-1             JUDGE RUDOLPH BUMGARDNER, III
                                              AUGUST 5, 2003
COMMNWEALTH 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.

           Steven A. Witmer, Assistant Attorney General
           (Jerry W. Kilgore, Attorney General, on
           brief), for appellee.


     The trial court convicted Mark Anthony Powell of robbery,

two counts of abduction, and three counts of use of a firearm in

the commission of a felony.   He argues the evidence was

insufficient to prove he had a firearm, Code § 18.2-53.1. 1    We

conclude the trial court did not err and affirm the convictions.


     ∗
       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
       "It shall be unlawful for any person to use or attempt to
use any . . . firearm or display such weapon in a threatening
manner while committing or attempting to commit . . . robbery."
Code § 18.2-53.1.
        We view the evidence and the reasonable inferences fairly

deducible therefrom in the light most favorable to the

Commonwealth.     Dowden v. Commonwealth, 260 Va. 459, 467, 536

S.E.2d 437, 441 (2000).    The defendant walked to the register of

a clothing store and inquired, "Where is your help today?"       The

cashier responded that she and the sales associate were alone.

As he demanded money from the register, the defendant said he

had a gun and "Don't move and won't nobody get hurt."      He had

his hand in the pocket of his loose fitting jeans the entire

time.    The employees believed the defendant had a firearm,

though neither of them saw one.    The defendant was "fidgety" and

moved his hand in his pocket left to right.    As the cashier

opened the register, the defendant told her to move slowly so no

one would get hurt.    She gave him more than $100 cash.   The

defendant ordered the employees into the storeroom, told them to

lie on the floor, and closed the door as he left.    The employees

watched the defendant leave the premises, saw him get into a

taxi, and called the police.

        Officer Nathan Clark received a robbery alert, reported to

the store, and learned the defendant had left in a taxi.     Clark

spotted the taxi and pursued it.    He did not see anything thrown

from the window.    When he stopped the taxi, the defendant told

its driver to "keep going."    The taxi driver did not notice the

defendant roll the window down, did not see or hear anything

being thrown out the window, and did not see a firearm.     The
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police recovered $196 cash under the back seat of the cab near

where the defendant sat, but no firearm.

     In a statement to police, the defendant conceded, "I told

the girl that I had a gun and to give me the money."    However,

he denied he had a gun.

     The defendant maintains that his statements that he had a

gun were uncorroborated assertions and constituted the only

evidence that he possessed a gun.

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

588, 590 (1996), controls this case.   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.    This Court affirmed his

conviction under Code § 18.2-53.1.

     In this case, the evidence is more than an uncorroborated

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

his hand in his pocket, told the employees he had a gun, and

threatened to use it.   He was fidgety, moved his hand in his

pocket back and forth, and ordered them to move slowly so no one

would get hurt.   When he ordered them to the storeroom, his hand

remained in his pocket.   The defendant accomplished the robbery

and abductions by placing the employees in fear that he would

use the gun to hurt them.   His statements, his assertive

conduct, and the circumstances surrounding them were an "implied

assertion" that he had a firearm. See Redd v. Commonwealth, 29
                               - 3 -
Va. App. 256, 258-59, 511 S.E.2d 436, 437-38 (1999) (Code

§ 18.2-308.2).

     Credible evidence supports the convictions.   Accordingly,

we affirm.

                                                        Affirmed.




                              - 4 -
Benton, J., dissenting.

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

(1994), the Supreme Court decided several principles that are

again at issue in this case.

             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 [Code] § 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." Yarborough [v. Commonwealth],
          15 Va. App. [638,] 642, 426 S.E.2d [131,]
          133-34 [(1993)]. Continuing, the Court of
          Appeals noted that, although Konchal saw no
          gun, she saw what she believed was a gun and
          that Yarborough "may have had a gun in his
          right pocket at the time of the offense."
          Id., 426 S.E.2d at 134.

             We have decided two cases dealing with
          the sufficiency of the evidence to support a
          conviction under Code § 18.2-53.1. In Cox
          v. Commonwealth, 218 Va. 689, 690-91, 240
          S.E.2d 524, 525 (1978), we held that a
          pistol, which was capable of firing live
          ammunition but which was loaded with wooden
          bullets, was "a weapon whose use was
          specifically proscribed by [Code
          § 18.2-53.1]." In Holloman v. Commonwealth,
          221 Va. 196, 197, 269 S.E.2d 356, 357
          (1980), the sole issue was whether the
          instrument in the defendant's possession was
          a "firearm" within the meaning of Code
          § 18.2-53.1. Although the instrument
          "appear[ed] in size, weight and shape to be
          a .45 caliber automatic pistol," it fired
          BBs "by the force of a spring, not by
          gunpowder." Id. We held that the evidence
          was sufficient to convict the defendant of
          using a firearm in violation of Code
                               - 5 -
          § 18.2-53.1, even though the instrument was
          fired by a spring rather than by gunpowder.
          Id. at 199, 269 S.E.2d at 358.

             These cases do not stand for the
          proposition that the Commonwealth need not
          prove that the defendant actually possessed
          a firearm. Indeed, they stand for the
          contrary proposition, and we reject the
          Attorney General's contention and the
          conclusion reached by the Court of Appeals.

             Code § 18.2-53.1, a penal statute, must
          be strictly construed against the
          Commonwealth and in favor of an accused.
          Martin v. Commonwealth, 224 Va. 298, 300,
          295 S.E.2d 890, 892 (1982). 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. Cameron v. Commonwealth, 211 Va.
          108, 110, 175 S.E.2d 275, 276 (1970).
          Conviction of a crime is not justified if
          the evidence creates only a suspicion or
          probability of guilt. Id.

Id. at 217-18, 441 S.E.2d at 343-44 (footnote omitted).

     The evidence in this case proved that during the robbery

Powell said he had a gun.   Both salespersons testified, however,

that they did not see a gun, did not see "the outline of a gun"

in Powell's pocket, and saw no other indication of a gun.   After

committing the robbery, Powell entered a taxi and traveled a

short distance before the police stopped the taxi and arrested

                               - 6 -
Powell.   The evidence proved the police recovered money from the

back seat of the taxi but no weapon.   The taxi driver testified

Powell did not throw any items from the taxi.    When questioned

by the police, Powell denied having a gun or using a gun.     In

summary, only by conjecture could the trier of fact find that

the evidence proved Powell actually had a gun.

              It is, of course, a truism of the
           criminal law that evidence is not sufficient
           to support a conviction if it engenders only
           a suspicion or even a probability of guilt.
           Conviction cannot rest upon conjecture. The
           evidence must be such that it excludes every
           reasonable hypothesis of innocence. The
           giving by the accused of an unclear or
           unreasonable or false explanation of his
           conduct or account of his doings are matters
           for the jury to consider, but they do not
           shift from the Commonwealth the ultimate
           burden of proving by the facts or the
           circumstances, or both, that beyond all
           reasonable doubt the defendant committed the
           crime charged against him.

Smith v. Commonwealth, 192 Va. 453, 461-62, 65 S.E.2d 528, 533

(1951).

     As in Yarborough, I would hold that the evidence failed to

prove beyond a reasonable doubt that Powell "actually possessed

a firearm."   247 Va. at 219, 441 S.E.2d at 344.   See also

McBride v. Commonwealth, 24 Va. App. 603, 608-11, 484 S.E.2d

165, 168-70 (1997) (Benton, J., dissenting).    Therefore, I would

reverse the firearm convictions.




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