                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Frank
Argued at Chesapeake, Virginia


WILLIAM EARL JONES
                                                                 MEMORANDUM OPINION* BY
v.        Record No. 1730-03-1                                     JUDGE LARRY G. ELDER
                                                                       JUNE 29, 2004
COMMONWEALTH OF VIRGINIA


                    FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                                 V. Thomas Forehand, Jr., Judge

                    William E. Buyrn (Buyrn & Crook, on brief), for appellant.

                    Deana A. Malek, Assistant Attorney General (Jerry W. Kilgore,
                    Attorney General, on brief), for appellee.


          William Earl Jones (appellant) appeals from his jury trial convictions for attempted

robbery and use of a firearm in the commission of an attempted robbery. On appeal, he contends

the evidence was insufficient to support his convictions because the testimony of the victims was

inherently incredible and failed to prove he displayed a firearm. We hold the evidence was

sufficient and affirm the convictions.

                                                     I.

          On appellate review, we must examine the evidence in the light most favorable to the

Commonwealth, and we may not disturb the jury’s verdict unless it is plainly wrong or without

evidence to support it. Traverso v. Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721

(1988).




          *
              Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       The conclusions of the fact finder on issues of witness credibility may be disturbed on

appeal only if this Court finds that the testimony was “inherently incredible, or so contrary to

human experience as to render it unworthy of belief.” Fisher v. Commonwealth, 228 Va. 296,

299-300, 321 S.E.2d 202, 204 (1984). In all other cases, we must defer to the conclusions of

“the fact finder[,] who has the opportunity of seeing and hearing the witnesses.” Schneider v.

Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985). Absent a finding of inherent

incredibility, “[d]etermining the credibility of witnesses who give conflicting accounts is within

the exclusive province of the [trier of fact], which has the unique opportunity to observe the

demeanor of the witnesses as they testify.” Lea v. Commonwealth, 16 Va. App. 300, 304, 429

S.E.2d 477, 479 (1993). The fact finder is not required to believe all aspects of a witness’

testimony; it may accept some parts as believable and reject other parts as implausible. Pugliese

v. Commonwealth, 16 Va. App. 82, 92, 428 S.E.2d 16, 24 (1993).

       Any element of a crime may be proved by circumstantial evidence, see, e.g., Servis v.

Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 (1988), provided the evidence as a

whole “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).

                                                A.

                                    ATTEMPTED ROBBERY

       Robbery “is defined as the ‘taking, with intent to steal, of the personal property of

another, from his person or in his presence, against his will, by violence or intimidation.’” Jones

v. Commonwealth, 26 Va. App. 736, 738, 496 S.E.2d 668, 669 (1998) (quoting Harris v.

Commonwealth, 3 Va. App. 519, 521, 351 S.E.2d 356, 356 (1986)). “‘An attempt to commit a

crime is composed of two elements: (1) The intent to commit it; and (2) a direct, ineffectual act

done towards its commission.’” Haywood v. Commonwealth, 20 Va. App. 562, 565, 458 S.E.2d

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606, 607-08 (1995) (quoting Merritt v. Commonwealth, 164 Va. 653, 657, 180 S.E. 395, 397

(1935)).

       “The intent required to be proven in an attempted crime is the specific intent in the

person’s mind to commit the particular crime for which the attempt is charged.” Wynn v.

Commonwealth, 5 Va. App. 283, 292, 362 S.E.2d 193, 198 (1987). “Intent is the purpose

formed in a person’s mind and may be, and frequently is, shown by circumstances. It is a state

of mind which may be proved by a person’s conduct or by his statements.” Barrett v.

Commonwealth, 210 Va. 153, 156, 169 S.E.2d 449, 451 (1969); see also Nobles v.

Commonwealth, 218 Va. 548, 551, 238 S.E.2d 808, 810 (1977). “[A] person is presumed to

intend the immediate, direct, and necessary consequences of his voluntary act.” Nobles, 218 Va.

at 551, 238 S.E.2d at 810.

       Here, both victims, Jermaine Silver and Quinshala Lane, gave consistent testimony about

appellant’s statements and actions. Their testimony was not inherently incredible and, if

believed by the jury, was sufficient to support appellant’s conviction for attempted robbery.

Both Silver and Lane testified that appellant and his companion left appellant’s porch and

followed them down Amick and Cayce Streets. While doing so, appellant said repeatedly, “I

want everything you got. I’m going to take all your stuff.” Appellant was behaving “wild[ly,]”

“his expression was scaring [Lane],” and it did not “seem [to her] like [appellant] was joking

around.” Silver and Lane both testified that appellant’s behavior frightened them and led them to

believe he intended to rob them. Both also testified that when they began to run and neared the

gate of a woman from whom they had previously purchased candy, appellant lifted his shirt.

Although Lane continued running through the gate and did not see what happened next, Silver

saw appellant display a gun in his waistband. The fact that Lane did not see a gun did not render

Silver’s testimony about the gun inherently incredible. Both victims saw appellant lift his shirt,

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and both explained that Lane ran through the gate ahead of Silver, thereby limiting her ability to

see what appellant had beneath his shirt.

       The fact that no gun was ever found and that appellant offered testimony from his aunt

claiming Lane later admitted appellant did not, in fact, have a gun does not require a different

result. The trier of fact was free to believe the direct evidence in the form of Silver’s testimony

that appellant displayed a silver firearm he was carrying in his waistband.

       Thus, the evidence supports the jury’s implicit finding that appellant intended to “tak[e],

with intent to steal, . . . the personal property of another, from his person or in his presence,

against his will, by violence or intimidation,” Harris, 3 Va. App. at 521, 351 S.E.2d at 356, and

that he engaged in “‘a direct, ineffectual act . . . towards its commission,’” Haywood, 20

Va. App. at 565, 458 S.E.2d at 607-08 (quoting Merritt, 164 Va. at 657, 180 S.E. at 397).

                                                  B.

                 USE OF A FIREARM IN THE COMMISSION OF A FELONY

       In a prosecution under Code § 18.2-53.1, the Commonwealth is required to prove four

elements:

               (1) that the accused “possessed” an object; (2) that this object was
               a “pistol, shotgun, rifle, or other firearm”; (3) that the accused
               “used or attempted to use the firearm or displayed the firearm in a
               threatening manner”; and (4) that this action involving the firearm
               occurred during the commission or attempt to commit one of the
               felonies enumerated in the statute [including robbery].

Thomas v. Commonwealth, 25 Va. App. 681, 684-85, 492 S.E.2d 460, 462 (1997). Whether an

accused used a firearm during the commission of a felony may be proved by direct evidence,

circumstantial evidence, or both. McBride v. Commonwealth, 24 Va. App. 603, 607, 484 S.E.2d

165, 167 (1997) (en banc); Byers v. Commonwealth, 23 Va. App. 146, 150-51, 474 S.E.2d 852,

854 (1996). When determining whether the accused possessed a firearm, “the fact finder may

consider the victim’s visual and nonvisual observations of the object, the victim’s knowledge of
                                                 -4-
firearms, the accused’s representations about the object during the commission of the felony,

expert testimony, and the appearance of the object itself [if] it is admitted into evidence.”

Thomas, 25 Va. App. at 686-87, 492 S.E.2d at 463 (footnotes omitted). The evidence must

“prove beyond a reasonable doubt that [the accused possessed] a ‘firearm’ as that term is used in

Code § 18.2-53.1, and when the evidence regarding [possession] is purely circumstantial, it must

exclude all reasonable hypotheses of innocence.” Id.

       Here, appellant challenges only the sufficiency of the evidence to prove that appellant

possessed and displayed a firearm. The evidence on this point was both direct and circumstantial

and, viewed in the light most favorable to the Commonwealth, was sufficient to establish the

requisite possession and use. The direct evidence of that possession and use came from Silver,

who testified that appellant lifted his shirt and displayed a firearm tucked in the waistband of his

pants. In cross-examining Silver, appellant made no attempt to challenge Silver’s ability to see

the firearm appellant had at his waist or to recognize a firearm when he saw one. Further,

contrary to appellant’s claim on brief, Lane did not testify that appellant had no firearm. Rather,

Lane testified merely that she did not see a firearm, and she corroborated Silver’s testimony that

appellant lifted his shirt. Both victims explained that Lane ran or was already running when

appellant lifted his shirt, which would have impaired her ability to see the firearm beneath it.

       Thus, no conflict existed between Silver’s and Lane’s testimony about the firearm.

Further, Silver’s testimony that he actually saw the firearm on appellant’s person was not

inherently incredible by itself. That testimony also was not rendered inherently incredible by the

fact that Officer Lisa Baggett did not find the firearm on appellant or his companion when she

searched them twenty to thirty minutes after the attempted robbery. Nor was it rendered

inherently incredible by the fact that Officer Baggett did not search for a firearm in appellant’s

residence or the bushes near the scene of the attempted robbery where appellant and his

                                                -5-
companion were seen crouching after fleeing the scene. Finally, the trier of fact was entitled to

reject the testimony of appellant’s aunt claiming that Lane later admitted appellant did not have a

firearm in his possession when he approached them at the gate.

       Thus, direct evidence, in the form of Silver’s eyewitness testimony -- which was found

credible by the jury and was corroborated by Lane’s testimony that she, too, saw appellant lift his

shirt -- proved beyond a reasonable doubt that appellant possessed and used a firearm in the

commission of attempted robbery.

                                                II.

       For these reasons, we hold the evidence was sufficient and affirm appellant’s convictions.

                                                                                         Affirmed.




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