                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia


MAURICE ERNEST IVEY
                                         MEMORANDUM OPINION * BY
v.   Record No. 2506-00-2                 JUDGE LARRY G. ELDER
                                           SEPTEMBER 18, 2001
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Margaret P. Spencer, Judge

          Christine A. Cestaro, Assistant Public
          Defender (Office of the Public Defender, on
          brief), for appellant.

          Paul C. Galanides, Assistant Attorney General
          (Mark L. Earley, Attorney General; Thomas M.
          McKenna, Assistant Attorney General, on
          brief), for appellee.


     Maurice Ernest Ivey (appellant) appeals from his

convictions for robbery, use of a firearm in the commission of a

felony, possession of a firearm by a juvenile, and possession of

a firearm after having been convicted of a felony. 1    On appeal,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       On appellant's motion, the court severed the charge of
possession of a firearm by a convicted felon. Appellant was
convicted in a jury trial for robbery, use of a firearm in the
commission of a felony and possession of a firearm by a
juvenile. Appellant waived his right to a jury trial on the
charge of possession of a firearm after having been convicted of
a felony, and the trial court convicted him of that offense
based on the parties' stipulation to the evidence offered in the
jury trial.
he contends the evidence was insufficient to prove he was the

criminal agent in the robbery, thus requiring reversal of all

the convictions.   In the alternative, he argues that

insufficient evidence proved the gun used in the robbery was a

firearm within the meaning of Code § 18.2-308.2, thereby

requiring reversal of his conviction for possession of a firearm

by a convicted felon.   We hold the evidence was sufficient to

prove appellant was the criminal agent and that the operational

firearm recovered from his home two days after the robbery was

the weapon used to commit the robbery.    Thus, we hold the

evidence was sufficient to support appellant's convictions, and

we affirm.

     In reviewing the sufficiency of the evidence on appeal, we

examine the record in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom.    See Martin v. Commonwealth, 4 Va. App.

438, 443, 358 S.E.2d 415, 418 (1987).    The judgment of a trial

court will be disturbed only if plainly wrong or without

evidence to support it.    See id.   The credibility of a witness,

the weight accorded the testimony, and the inferences to be

drawn from proven facts are matters to be determined by the fact

finder.   See Long v. Commonwealth, 8 Va. App. 194, 199, 379

S.E.2d 473, 476 (1989).   Any element of a crime may be proved by

circumstantial evidence, e.g., Servis v. Commonwealth, 6 Va.


                                - 2 -
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).

     At trial, the Commonwealth bears the burden of proving the

identity of the accused as the perpetrator beyond a reasonable

doubt.   Brickhouse v. Commonwealth, 208 Va. 533, 536, 159 S.E.2d

611, 613-14 (1968).   In determining whether the evidence adduced

was sufficient to prove identity, we consider factors including:

           "the opportunity of the witness to view the
           criminal at the time of the crime, the
           witness' degree of attention, the accuracy
           of the witness' prior description of the
           criminal, the level of certainty
           demonstrated by the witness at the
           confrontation and the length of time between
           the crime and the confrontation."

Currie v. Commonwealth, 30 Va. App. 58, 73, 515 S.E.2d 335, 343

(1999) (quoting Neil v. Biggers, 409 U.S. 188, 199-200, 93

S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972)).    Relevant to the

eyewitness' level of certainty in identifying a perpetrator is

whether the witness had seen the perpetrator prior to his

commission of the charged offense.     See Lea v. Commonwealth, 16

Va. App. 300, 304, 429 S.E.2d 477, 479 (1993); Palmer v.

Commonwealth, 14 Va. App. 346, 349, 416 S.E.2d 52, 54 (1992).

     The fact that the perpetrator wore a mask may impair a

witness' ability to identify him, but it does not prevent such

an identification as a matter of law.     Compare Smallwood v.

                               - 3 -
Commonwealth, 14 Va. App. 527, 530-34, 418 S.E.2d 567, 568-70

(1992) (reversing conviction where eyewitness i.d. of masked

robber was equivocal and other evidence was insufficient to link

accused to robbery), with Hammer v. Commonwealth, 207 Va. 165,

166-68, 148 S.E.2d 896, 897-98 (1966) (affirming conviction

where victim "testified positively" that accused was her masked

assailant because she identified his voice, eyes and build); and

Phan v. Commonwealth, 258 Va. 506, 508-12, 521 S.E.2d 282,

283-85 (1999) (affirming conviction where accused fought with

and threatened victim; multiple witnesses testified that accused

and one of masked assailants who later killed victim were both

"unusually short and had the same 'chubby' figure, weight, hair

length and color, nationality and skin tone"; and jury rejected

accused's alibi).

     Further, the absence of a direct, in-court identification

of the accused is not dispositive, as long as the evidence, as a

whole, proves guilt beyond a reasonable doubt.   See Coleman, 226

Va. at 53, 307 S.E.2d at 876.   In fact, an in-court

identification often is argued to be suspect as "unduly

suggestive."   See, e.g., Charity v. Commonwealth, 24 Va. App.

258, 261-64, 482 S.E.2d 59, 60-62 (1997).

               An identification made by a victim or
          an eyewitness soon after a crime has been
          committed may be more objective and accurate
          and have greater probative value than one
          made later in court when unduly suggestive
          circumstances . . . or the changed

                                - 4 -
           appearance of the defendant[] might
           adversely affect the identifier's testimony.

Niblett v. Commonwealth, 217 Va. 76, 82, 225 S.E.2d 391, 394

(1976) (holding evidence of extrajudicial identification

admissible to overcome deficiencies in courtroom identification

where identification witness available for cross-examination).

     Appellant contends the evidence was insufficient to support

his convictions because it did not prove he was the criminal

agent.   He argues that no witness ever identified him at trial

as the robber.   Alternatively, he argues that the victim's

identification of him as the perpetrator was insufficient

because the victim remembered no distinguishing characteristics

of the robber and was unable to articulate why he believed

appellant was the masked assailant.    We disagree and hold that

the evidence as a whole, viewed in the light most favorable to

the Commonwealth, was sufficient to prove that the victim

identified appellant as the perpetrator on multiple occasions

and that appellant was, in fact, the person who robbed the West

End Market on March 6, 2000.

     Mr. Lee testified that he had ample opportunity to view

appellant prior to the robbery of March 6, 2000, because

appellant had been a regular customer of the store for the

duration of Mr. Lee's employment.   Lee testified that he saw

appellant in the store several times each week during the year



                               - 5 -
Mr. Lee had been working there.    Appellant admitted he visited

the store at least twice a day and knew Mr. Lee by sight.

     Mr. Lee also had an opportunity to view appellant at close

range on the day of the robbery and testified that he recognized

appellant "immediately," before he became aware that appellant

was attempting to rob the store.   Appellant was dressed in the

same outer clothing he wore into the store "almost every day,"

black pants with an army jacket and a hat "that becomes . . . a

mask."   Because Mr. Lee knew appellant as a regular customer, he

believed appellant was "just joking" when the masked appellant

told Mr. Lee not to move.   Not until Lee noticed the gun

appellant pointed at him could any fear for his safety have

interfered with Lee's powers of observation.    Lee testified that

he could see the robber's mouth, eyes and hands, and that the

robber was the same height and weight as appellant.    Lee said he

identified the robber as appellant not only by the clothing he

wore but also by the way he moved.     Lee had an opportunity to

view the robber's movements as he entered the store and

attempted to open the cash register and then, when the robber

was unable to open the cash drawer himself, as he held the book

bag in which he ordered Lee to deposit the money.

     Mr. Lee never equivocated in his identification of

appellant.   Immediately after the robbery, before reviewing the

surveillance videotape, Lee told his employer, Mr. Kang, that he


                               - 6 -
knew the robber as a regular customer of the store and simply

did not know his name.    Only two days later, when Lee again saw

appellant in the store dressed in entirely different clothing,

he immediately recognized appellant as the robber, and he

immediately notified Mrs. Kang and then Mr. Kang that the robber

had returned to the store.    Mr. Kang testified that as soon as

he arrived at the store, Lee pointed to appellant, who was still

standing outside, and told him appellant was the person who had

robbed the store.    Mr. Kang identified appellant as Maurice

Ivey.    When Mr. Kang expressed fear of implicating an innocent

person, Lee told Kang he was certain appellant was the robber.

        Given Lee's demonstrated familiarity with appellant, his

mannerisms, and his usual attire, we hold the jury was entitled

to accept Lee's unequivocal identification of appellant as the

robber as evidence sufficient to prove his identity as the

perpetrator beyond a reasonable doubt.     See Hammer, 207 Va. at

166-68, 148 S.E.2d at 897-98 (affirming conviction where victim

observed masked, knife-wielding assailant only during assault

but "testified positively" that accused was her assailant

because she recognized his voice, eyes and build in a two-person

lineup held over three weeks later).

        Circumstantial evidence corroborated Lee's identification

of appellant as the robber.    When the police searched

appellant's bedroom two days after the robbery, they found a


                                 - 7 -
small, shiny, stainless-colored gun, camouflage army jacket and

green book bag.   The gun was concealed beneath a jacket on

appellant's bed, and the jacket was found "bunched up" behind a

pair of speakers in appellant's closet.   These items matched the

descriptions Lee gave to police immediately after the robbery,

and Lee testified that these items closely resembled those used

in the robbery.   Although appellant claimed he had reported to

school on the morning of the robbery and was on a bus on his way

home from school at the time the robbery occurred, appellant

presented no witnesses to corroborate his testimony, and the

Commonwealth's evidence showed he was marked absent from school

that day.   The jury, in its role as the finder of fact, was

entitled to conclude that appellant was lying to conceal his

guilt.   See, e.g., Speight v. Commonwealth, 4 Va. App. 83, 88,

354 S.E.2d 95, 98 (1987) (en banc).    Although appellant's

untruthfulness was not substantive evidence of guilt, the

remaining evidence, both direct and circumstantial, viewed in

the light most favorable to the Commonwealth, was sufficient to

prove appellant was the robber.

     The evidence also was sufficient to prove the object

appellant possessed and displayed during the March 6 robbery was

an actual firearm and was the same operational firearm that

police seized during a search of appellant's room only two days

later.   Although Mr. Lee saw only the "front" and "top" part of


                               - 8 -
the gun with which appellant threatened him during the robbery,

he testified that the size and color of the weapon introduced at

trial were "the same" as the robber's gun.   Lee also testified

that the robber pointed the barrel and "the hole directly at

[him]" as he yelled, "Don't move," and various other commands at

Lee.   Finally, the police found only one weapon in appellant's

possession when they searched his room two days later, and

subsequent ballistics testing confirmed that the weapon was an

operational firearm.   Thus, the only reasonable hypothesis

flowing from the circumstantial evidence, viewed in the light

most favorable to the Commonwealth, was that the weapon

appellant used in the robbery on March 6 was an actual firearm

as required to support his conviction for possession of a

firearm after having been convicted of a felony pursuant to Code

§ 18.2-308.2.    See Armstrong v. Commonwealth, 36 Va. App. 312,

322, 549 S.E.2d 641, 646 (2001) (en banc).

       For these reasons, we hold the evidence was sufficient to

support appellant's convictions, and we affirm.

                                                          Affirmed.




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