                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Agee and Senior Judge Hodges
Argued at Chesapeake, Virginia


JOHN ARTHUR WILLIAMS, JR.
                                          MEMORANDUM OPINION * BY
v.   Record No. 0326-00-1                 JUDGE WILLIAM H. HODGES
                                               MARCH 20, 2001
COMMONWEALTH OF VIRGINIA


        FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
                     Verbena M. Askew, Judge

          Bryan L. Saunders for appellant.

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


     The trial judge convicted John Arthur Williams, Jr. of

various offenses including two robberies and the use of a firearm

in the commission of the robberies.   Williams contends the

evidence was insufficient to prove that he used a firearm in the

commission of two robberies.   We disagree and affirm the

convictions.

                                 I.

     At trial the evidence proved that on February 25, 1999,

Williams entered a grocery market owned by Chaudhry Sian and said

he wanted candy.   When Sian went behind the counter, Williams said

"give me money or I'll shoot you."    Sian testified that Williams


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
had his hand under his jacket and that "[i]t look[ed] like in his

hand, was very heavy."   Williams threatened to shoot Sian at least

four times.   Sian never saw a gun but believed that Williams' hand

was holding a gun under his shirt.      After Sian gave Williams

money, Williams left the store.

     Susan Reid testified that she was working at a bank on

February 27, 1999, when Williams approached Reid's teller window.

He asked for all of her hundreds and tens, and he told her that he

had a gun and would "blow [her] head off."     Reid testified that

Williams had his hand underneath his belt.     She "saw a bulge" but

never saw a gun.   She testified, "whether or not it was from the

hand, I didn't have time to react to that."     Reid gave Williams

$9,560.

     Detective Daniels testified that Williams confessed that he

was responsible for the robberies.      Williams consistently denied

however, having a gun in his possession.     Williams said that

rather than using a gun, he used his fingers in one of the

robberies and grabbed his belt buckle in another one.

     At the close of the evidence the judge convicted Williams of

all indicted charges including use of a firearm in the commission

of each robbery.   This appeal followed.

                                  II.

     Code § 18.2-53.1 provides that it shall be a felony for a

person "to use or attempt to use any . . . firearm or display

such weapon in a threatening manner" while committing robbery.

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          [T]he 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.

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

344 (1994) (footnote omitted).    "[C]ircumstantial evidence, such

as an assailant's statement that he possesses a firearm, can be

sufficient evidence to prove beyond a reasonable doubt that an

accused indeed possessed a firearm."     McBride v. Commonwealth, 24

Va. App. 603, 607, 484 S.E.2d 165, 167 (1997) (en banc).

     In McBride, the accused pushed an unknown object into his

victim's back and said he would "shoot" if the victim did not

comply with his demands.   Although no one actually saw a gun and

the accused never expressly stated that he had one, we held that

"the clear inference to be drawn from his threat to 'shoot,' is

that he did have a gun."   24 Va. App. at 608, 484 S.E.2d at 168.

Thus, we ruled that "circumstantial evidence, considered as a

whole and viewed in the light most favorable to the Commonwealth,

excluded all reasonable hypotheses of innocence and is therefore

sufficient to support the trial court's finding of guilt."    Id.

Similarly, in Byers v. Commonwealth, 23 Va. App. 146, 474 S.E.2d

852 (1996), where the accused told the victim "this is a stickup,"

we upheld the conviction for use of a firearm in the commission of

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robbery.   The victim felt a metal object against the back of his

neck and no gun was seen.   Id. at 152, 474 S.E.2d at 854.

     The evidence proved that Williams threatened to "shoot" Sian

while gesturing and pointing at him with what appeared to Sian to

be a heavy object.   Similarly, Williams told Reid he would "blow

[her] head off" and kept his hand tucked under his belt buckle.

In both instances, Williams' statements and his menacing actions

provided sufficient evidence from which the trial judge could

conclude beyond a reasonable doubt that Williams was guilty of

using a firearm in the commission of each robbery.   Therefore, we

affirm the convictions.

                                                         Affirmed.




                               - 4 -
Benton, J., dissenting.

     For the reasons fully stated in McBride v. Commonwealth, 24

Va. App. 603, 608-11, 484 S.E.2d 165, 168-70 (1997) (Benton, J.,

dissenting), I would hold that the evidence only permits a mere

inference that John Arthur Williams may have had a gun.     That

inference fails to rise to proof beyond a reasonable doubt that

Williams had a gun.    Each robbery victim only supposed that a gun

existed because of a verbal threat and a bulge where Williams held

his hand under his clothing.    No gun was seen or recovered.   Only

by speculating can the trier of fact or we conclude that the bulge

was a gun.

             [The Supreme Court's decisions] 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.
             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.


                                 - 5 -
Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342,

344 (1994) (footnote and citations omitted).

     In short, the circumstantial evidence of the use of a

firearm in this case does not exclude every reasonable

hypothesis of guilt.   Specifically, it does not exclude the

reasonable hypothesis that Williams pretended to have a gun in

order to frighten his victims into submitting more passively to

his assaults.   Accordingly, I would reverse the convictions for

use of a firearm in the commission of the robberies.




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