                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia


ROBERT ELMORE, S/K/A
 ROBERT D. ELMORE
                                              OPINION BY
v.        Record No. 2366-94-2         JUDGE SAM W. COLEMAN III
                                             MAY 14, 1996
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG
                  Oliver A. Pollard, Jr., Judge
          Peter D. Eliades (Marks & Harrison, on
          brief), for appellant.

          Marla Graff Decker, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Robert D. Elmore was convicted in a bench trial of bank

robbery and use of a firearm in the commission of a robbery.

Elmore contends that the Commonwealth did not prove that he

actually possessed a firearm and, therefore, the evidence is

insufficient to sustain the conviction for use of a firearm in

the commission of a robbery in violation of Code § 18.2-53.1.    We

hold that the evidence is sufficient and affirm the defendant's

conviction.

     At approximately 9:07 a.m. on March 10, 1995, the defendant

entered the First Colonial Bank in Petersburg and approached Noni

Deets, a teller at the bank.   The defendant handed Deets a blue

"bank bag," and Deets immediately became "suspicious" because the

bag was light and contained a note.   Deets testified that the

note stated, "this is a robbery."   The note also stated that the
defendant did not want to hurt anyone and instructed Deets to

"quietly put all [her] twenties, fifties and hundreds in the bank

bag."    Deets explained the events that followed:
            After I read the note I looked back down,
            like I couldn't believe what he was doing.
            He looked at me and he said, very quietly, I
            don't want to hurt anyone. And then he
            pointed to his pocket. And that indicated to
            me there was a gun, like he had stated in his
            note.


(Emphasis added).    Deets put money in the bag, including "bait

money" that triggered the alarm system.    The defendant grabbed

the bag and the note and fled from the bank.
        Deets recognized the bank photograph of the robber but could

not identify the defendant in court.     However, two other bank

employees who were present during the robbery positively

identified the defendant as the person who robbed Deets.

        The defendant was indicted for bank robbery, use of a

firearm in the commission of a robbery, and entering a bank while

armed with a deadly weapon.    After the Commonwealth presented its

case, the defendant moved to strike the evidence on all three

charges on the ground that the evidence was insufficient to prove

that he was the person who committed the robbery.    The trial

court overruled the motion with respect to the indictments for

bank robbery and use of a firearm in the commission of a robbery

but struck the evidence as to the charge of entering a bank with

a deadly weapon because the Commonwealth failed to prove "the




                                 - 2 -
actual existence of a weapon." 1   After the defendant presented
     1
       On its face, the trial court's striking the evidence on
the foregoing ground appears to be inconsistent with the
defendant's conviction for the use of a firearm in the commission
of robbery. Although it is well established that in a jury
trial, the defendant cannot attack a conviction on the ground
that it is inconsistent with a verdict of acquittal on a related
charge, United States v. Powell, 469 U.S. 57, 63 (1984); Sullivan
v. Commonwealth, 214 Va. 679, 679-80, 204 S.E.2d 264, 265 (1974),
no Virginia case has addressed inconsistent verdicts in a bench
trial. Other jurisdictions, however, have held that the
considerations that may justify inconsistent jury verdicts do not
apply in a bench trial. See, e.g., United States v. Maybury, 274
F.2d 899, 903 (2d Cir. 1960); Haynesworth v. United States, 473
A.2d 366, 368 (D.C. 1984); Shell v. State, 512 A.2d 358, 363 (Md.
1986). We are unwilling to fully address the issue in the
context of the present case; it has not been briefed or argued by
the parties. Nevertheless, assuming for purposes of this appeal
that inconsistent verdicts in a bench trial are grounds for
reversal in Virginia, we hold that the defendant's conviction for
use of a firearm in the commission of robbery is not inconsistent
with the dismissal of the charge for entering a bank while armed
with a deadly weapon.
     The elements necessary to prove the existence of a "firearm"
under Code § 18.2-53.1 are not necessarily identical to those
required to establish the existence of a "deadly weapon" under
Code § 18.2-93. Compare Holloman v. Commonwealth, 221 Va. 196,
197-99, 269 S.E.2d 356, 357-58 (1980) (holding that a spring-
operated BB gun is a firearm for purposes of Code § 18.2-53.1)
with Cox v. Commonwealth, 218 Va. 689, 690, 240 S.E.2d 524, 525
(1978) (holding that a pistol that was "capable of firing live
ammunition" was a deadly weapon even though it was actually
"loaded with wooden bullets") (emphasis added). Here the trial
court expressly noted that the Commonwealth had to prove that the
defendant entered the bank while armed "with a deadly weapon" and
"struck the firearms in the bank [charge] because the specific
firearm had not been prove[d]." (Emphasis added). These
statements indicate that the court found the evidence was
insufficient to prove the existence of a deadly weapon because
the Commonwealth did not show the specific type of firearm the
defendant allegedly possessed. Therefore, in dismissing the
charge for entering a bank while armed with a deadly weapon, the
trial court did not necessarily find that the evidence was
insufficient to prove the existence of a firearm under Code
§ 18.2-53.1. Cf. Simon v. Commonwealth, 220 Va. 412, 418, 258
S.E.2d 567, 571 (1979) ("Collateral estoppel becomes applicable
only when the prior acquittal necessarily resolved the issue now
in litigation"); Lee v. Commonwealth, 219 Va. 1108, 1111, 254
S.E.2d 126, 127 (1979) ("[C]ollateral estoppel does not apply if



                               - 3 -
his evidence, the court convicted him of the remaining two

charges.

     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."

Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344

(1994).    On appeal, the evidence must be reviewed in the light

most favorable to the Commonwealth and must be accorded all

reasonable inferences fairly deducible therefrom.    Higginbotham

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

The trial court's judgment will not be disturbed unless it "is

plainly wrong or without evidence to support it."    Id.

     In Yarborough, the accused approached the victim and stated,

"this is a stickup[;] give me all your money."   247 Va. at 217,

441 S.E.2d at 343.   The victim testified that the accused had

both of his hands in his pockets as he approached and that "[s]he

saw `something protruding . . . from his right hand pocket of his

jacket,' and she `thought [there] was a gun in his pocket.'"       Id.

On appeal, the Supreme Court held that "the fact that [the

victim] merely thought or perceived that [the accused] was armed

is insufficient to prove that he actually possessed a firearm."


it appears that the prior judgment could have been grounded 'upon
an issue other than that which the defendant seeks to foreclose
from consideration'") (quoting Ashe v. Swenson, 397 U.S. 436, 444
(1970)).




                                - 4 -
Id. at 219, 441 S.E.2d at 344.    The defendant contends that

Yarborough is controlling here because the evidence is

insufficient to prove that he actually possessed a firearm.

       In Sprouse v. Commonwealth, 19 Va. App. 548, 453 S.E.2d 303

(1995), we held that in light of Yarborough 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."        Id. at 551-52, 453 S.E.2d at

306.   Therefore, we held that the evidence was insufficient to

sustain a conviction under Code § 18.2-53.1 where the

Commonwealth conceded at trial that the object Sprouse used

during the robbery "was a toy pistol."        Id. at 550, 453 S.E.2d at

305.   In Sprouse, we would not permit the fact finder to infer

from circumstantial evidence that an object was a firearm, where

the Commonwealth conceded that the uncontroverted direct evidence

proved that the object was not a firearm.

       Conversely, in Wilson v. Commonwealth, 19 Va. App. 535, 452
S.E.2d 884 (1995), we affirmed a conviction under Code

§ 18.2-53.1 where the victim "stated that she saw [a] gun's brown

handle hanging out of [the accused's] jacket pocket during the

robbery."    Id. at 537, 452 S.E.2d at 885.     Although the gun was

not produced at trial, the victim "stated that she knew what guns

looked like and she was sure she saw the handle of a gun."        Id.
       Here, Noni Deets testified that the note the defendant gave




                                 - 5 -
her stated that he had a "gun."
          And then he pointed to his pocket. And that
          indicated to me there was a gun, like he had
          stated in his note. 2


An out-of-court statement by the defendant that admits or

acknowledges a fact or facts tending to prove guilt is admissible

in evidence against the defendant.     See Caminade v. Commonwealth,

230 Va. 505, 510, 338 S.E.2d 846, 849 (1986); Alatishe v.

Commonwealth, 12 Va. App. 376, 378, 404 S.E.2d 81, 82 (1991).

Thus, the evidence in this case, unlike the evidence in
Yarborough, consists of more than the victim's mere belief or

perception that the defendant had a gun.    Here, the defendant's

out-of-court statement admitted the existence of a "gun."    The

circumstances here are distinguishable from those in Sprouse,

where the Commonwealth conceded at trial that Sprouse used a toy

pistol.   The only evidence that refutes the defendant's admission

that he possessed a firearm is his general denial, which the

trial court rejected.

     The record reveals that the defendant gave Deets a note

stating that he had a "gun," pointed to his pocket and said that

he did not want to hurt anyone.   This evidence is sufficient to

prove beyond a reasonable doubt that the defendant actually

possessed a firearm and used it in a threatening manner.
     2
       Deets testified that the defendant took the note before
leaving the bank. Therefore, the note was unavailable at trial
and Deets' testimony regarding the contents of the note was
admissible. Charles E. Friend, The Law of Evidence in Virginia
§ 16-5, at 646-47 (4th ed. 1993).




                               - 6 -
Accordingly, we affirm the defendant's conviction under Code

§ 18.2-53.1.

                                                        Affirmed.




                              - 7 -
Elder, J., dissenting.


     I respectfully dissent from the majority's opinion.       Because

the Commonwealth did not prove that the defendant actually

possessed a firearm, the evidence failed to support the

defendant's conviction for use of a firearm during the commission

of a robbery.

     As the majority acknowledges, the defendant was originally

indicted and tried on three charges:   (1) bank robbery, (2) use

of a firearm in the commission of a robbery, and (3) entering a

bank while armed with a deadly weapon.   After the Commonwealth

presented its case, the defendant moved to strike the evidence on

all three charges.   The trial court struck the evidence as to the

charge of entering a bank with a deadly weapon because the

Commonwealth failed to prove the actual existence of a weapon.

However, the trial court overruled the motion with respect to the

indictments for bank robbery and use of a firearm in the

commission of a robbery.

     The trial court's finding that the Commonwealth failed to

prove "the actual existence of a weapon" is inconsistent with its

ruling that the evidence is sufficient to prove that the
                                                           3
defendant used a firearm in the commission of a robbery.       The

trial court made an explicit factual finding that the defendant

     3
       The majority correctly cites Yarborough for the
proposition that to obtain a conviction for use of a firearm in
the commission of a robbery, "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." Yarborough, 247 Va. at 218, 441 S.E.2d at
344.




                               - 8 -
did not possess a weapon, which in this case, was argued to be a

firearm.   Therefore, no evidence supported the trial court's

judgment that the defendant used a firearm in the commission of a

robbery.   Where a trial court's judgment lacks evidence to

support it, or where it is plainly wrong, this Court may disturb

the judgment.    Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987); Code § 8.01-680.

     In footnote one, the majority attempts to resolve the trial

court's inconsistent ruling.    The majority cites case law

standing for the proposition that a firearm may not necessarily

qualify as a "deadly weapon."   The majority therefore concludes

that the fact of whether the defendant possessed a firearm was

not necessarily resolved or found by the trial court's dismissal

of the charge for entering a bank armed with a deadly weapon.
The majority ignores the trial court's explicit finding that the

defendant was not in possession of a weapon, as opposed to a

deadly weapon.   This distinction is critical.   As discussed

above, once the trial court found that the defendant did not

possess a weapon for one purpose (the charge of entering the bank
with a deadly weapon), logically and consistently the trial court

could not conclude that the defendant somehow possessed a firearm

for another purpose (the charge of use of a firearm in the

commission of a robbery).

     For these reasons, I would reverse and dismiss the

defendant's conviction for use of a firearm in the commission of

a robbery.




                                - 9 -
