Byers v. Commonwealth

474 S.E.2d 852, 23 Va. App. 146, 1996 Va. App. LEXIS 588
CourtCourt of Appeals of Virginia
DecidedSeptember 10, 1996
Docket1241951
StatusPublished
Cited by39 cases

This text of 474 S.E.2d 852 (Byers v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Byers v. Commonwealth, 474 S.E.2d 852, 23 Va. App. 146, 1996 Va. App. LEXIS 588 (Va. Ct. App. 1996).

Opinions

ANNUNZIATA, Judge.

Appellant, Michael Augustus Byers, was convicted of two counts of robbery and two counts of use of a firearm in the commission of robbery. Appellant contends the evidence was insufficient to sustain one of the firearm convictions under Code § 18.2-58.1. We disagree and affirm the conviction.

I.

Upon familiar principles, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).

On April 21,1993, at approximately 4:05 a.m., taxicab driver Christopher Rodgers (Rodgers) was dispatched to pick up an individual. Rodgers, unable to locate the specific address given to him by the dispatcher, was approached by appellant, and appellant indicated that he had called the cab. Appellant entered the cab and directed Rodgers to pull up to a house two doors away. Appellant told Rodgers that he was waiting for a friend to come out of the house and that he wanted Rodgers to take them to their destination. After waiting about two or three minutes, Rodgers suggested that he blow the cab’s horn to signal the person inside the house. Appellant answered, “No, that’s all right, that’s all right.” A few [150]*150seconds later, appellant added, ‘You know this is a stickup, don’t you?” Rodgers “kind of looked over [his] shoulder and [asked] what?” Appellant repeated, “This is a stickup. Don’t look back, I[’ll] butt you in the head, you know.” At the same time, Rodgers felt a metal object against the back of his neck, and he testified that he “figured [the metal object] was a gun.” When asked whether he actually saw a gun, Rodgers responded, “No, I didn’t see a gun.” Another cab driver, Michael Ezeigbo, testified that at approximately 5:40 a.m. on April 14, 1993, appellant and some accomplices robbed him at gunpoint after calling and requesting a cab.

II.

Code § 18.2-53.1 provides, in part:

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____

To convict an accused under this statute, “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.” Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994) (footnote omitted). Possession of a firearm is an “essential element” of the offense, and the fact that a victim merely thinks or perceives that the accused was armed is insufficient to prove actual possession. Id. at 219, 441 S.E.2d at 344.

Contrary to the dissent’s suggestion, we do not hold that Yarborough does not require the evidence to show an accused “‘actually’ used a gun to consummate the crime.” Rather, in reliance on Yarborough, we hold that proof of “actual” possession of a firearm under Code § 18.2-53.1 may be established by circumstantial evidence, direct evidence, or both. See id. at 216-19, 441 S.E.2d at 343-44 (circumstantial evidence that accused actually possessed firearm insufficient [151]*151to establish guilt beyond a reasonable doubt and exclude every reasonable hypothesis of innocence). See also McBride v. Commonwealth, 22 Va.App. 730, 735, 473 S.E.2d 85, 87 (1996) (circumstantial evidence sufficient to support conviction).

“Circumstantial evidence ... is evidence of facts or circumstances not in issue from which facts or circumstances in issue may be inferred.” 1 Charles E. Friend, The Law of Evidence in Virginia § 12-1 (4th ed. 1993); see also Ryan v. Maryland Casualty Co., 173 Va. 57, 62, 3 S.E.2d 416, 418 (1939) (citation omitted) (“Circumstantial evidence is proof of a series of other facts than the fact in issue, which by experience have been found so associated with that fact, that, in the relation of cause and effect, they lead to a satisfactory and certain conclusion”). Direct evidence, on the other hand, is “[e]vidence that directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact.” Black’s Law Dictionary 460 (6th ed. 1990).

“Circumstantial evidence is as competent and is entitled to as much weight as direct evidence, provided it 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), cert. denied, 465 U.S. 1109, 104 S.Ct. 1617, 80 L.Ed.2d 145 (1984). “[W]here the Commonwealth’s evidence as to an element of an offense is wholly circumstantial, ‘all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.’ ” Moran v. Commonwealth, 4 Va.App. 310, 314, 357 S.E.2d 551, 553 (1987) (citation omitted); see also Dukes v. Commonwealth, 227 Va. 119, 122, 313 S.E.2d 382, 383 (1984); Wilkins v. Commonwealth, 18 Va.App. 293, 298, 443 S.E.2d 440, 444 (1994). However, the Commonwealth “‘is not required to disprove every remote possibility of innocence, but is, instead, required only to establish guilt of the accused to the exclusion of a reasonable doubt.’” Cantrell v. Commonwealth, 7 Va. App. 269, 289, 373 S.E.2d 328, 338 (1988) (quoting Bridgeman v. Commonwealth, 3 Va.App. 523, 526-27, 351 S.E.2d 598, 600 [152]*152(1986)). “The hypotheses which the prosecution must reasonably exclude are those “which flow from the evidence itself, and not from the imagination of defendant’s counsel.’ ” Id. at 289-90, 373 S.E.2d at 338-39 (quoting Black v. Commonwealth, 222 Va. 838, 841, 284 S.E.2d 608, 609 (1981)).

In Yarborough, the victim testified to seeing “something protruding” from Yarborough’s jacket pocket during the incident, which Yarborough called a “stickup.” 247 Va. at 216-17, 441 S.E.2d at 343. Although the victim believed Yarborough had a gun in his pocket, she never saw or felt a firearm. Id. Yarborough never stated he had a gun, and the police found no firearm in Yarborough’s possession, although they later found an unopened can of beer in his jacket pocket. Id.

The issue on appeal to the Supreme Court was whether the circumstantial evidence that Yarborough actually possessed a firearm was sufficient to prove his guilt beyond a reasonable doubt.

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Bluebook (online)
474 S.E.2d 852, 23 Va. App. 146, 1996 Va. App. LEXIS 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byers-v-commonwealth-vactapp-1996.