Yarborough v. Commonwealth , 247 Va. 215 ( 1994 )

JUSTICE STEPHENSON

delivered the opinion of the Court.

The sole issue in this appeal is whether the evidence is sufficient to support a conviction of the use of a firearm in the commission of a felony.

Anthony A. Yarborough was indicted in the Circuit Court of Arlington County for the robbery of Susan Konchal and for using of attempting to use or displaying in a threatening manner a pistol or other firearm while committing or attempting to commit robbery, in violation of Code § 18.2-53.1. A jury found Yarborough guilty of both offenses and fixed his punishment at five years in the penitentiary for robbery and two years in the penitentiary for use of a firearm. The trial court sentenced Yarborough in accordance with the jury verdicts.

On January 26, 1993, the Court of Appeals affirmed both convictions. Yarborough v. Commonwealth, 15 Va. App. 638, 426 S.E.2d 131 (1993). We awarded Yarborough an appeal limited to the question whether the evidence is sufficient to support the firearm conviction.

The evidence germane to the firearm charge may be summarized briefly and, according to established appellate principles, must be stated in the light most favorable to the Commonwealth, the prevailing party at trial. On November 13, 1990, at 7:47 p.m., Konchal withdrew $60 from an automatic teller machine located in the lobby of the building in which she worked. She then began to walk the three blocks to her condominium.

As Konchal approached the driveway of the condominium complex, Yarborough ran past her. Shortly thereafter, Yarborough reappeared and ran directly toward her. As Yarborough approached Konchal, he said, “This is a stickup[;] give me all your money.” Konchal said, “What?” and tried to walk past him. Yarborough, however, blocked Konchal and said, “No, this is a stickup[;] give me all your money.”

According to Konchal, when Yarborough moved toward her, “[b]oth [of Yarborough’s] hands were in his pockets.” She saw “something protruding . . . from his right hand pocket of his jacket,” and she “thought [there] was a gun in his pocket.” Konchal then opened her purse, reached in, and handed Yarborough three twenty dollar bills from her wallet. Yarborough, using his left hand, reached into Konchal’s purse and took two one dollar bills. Yarborough then fled in the direction of a nearby subway (or Metro) station, and Konchal immediately reported the robbery to the police.

About 8 p.m., a police officer, dispatched to investigate the robbery, entered the main area of the nearest Metro station and immediately saw and stopped a man who matched Konchal’s description of her assailant. The man was Yarborough. The officer performed a “pat-down” of Yarborough for weapons; however, no weapons were found. The officer did find a chilled, unopened can of beer in one of the pockets of Yarborough’s jacket.

Yarborough was immediately taken into custody by the police, and officers searched the Metro station, and surrounding area, the scene of the robbery and surrounding area, and various nearby streets for a weapon. No weapon was found.

Yarborough was indicted for and convicted of violating Code § 18.2-53.1. Code § 18.2-53.1 provides, in pertinent part, as follows:

It shall be unlawful for any person to use or attempt to use any pistol ... or other firearm or display such weapon in a threatening manner while committing or attempting to commit . . . robbery. . . . Violation of this section shall constitute a separate and distinct felony. . . .

The Attorney General contends that “the law does not require that a firearm actually be seen or even used in order to sustain a conviction under § 18.2-53.1” and that the evidence is sufficient to support a conviction “if the victim is made to feel that an assailant has a firearm, and reacts in response to that perception.” Consistent with that contention, the Court of Appeals stated that “actual sighting of the weapon is unnecessary for a conviction under Code § 18.2-53.1.” Yarborough, 15 Va. App. at 642, 426 S.E.2d at 133-34. Continuing, the Court of Appeals noted that, although Konchal saw no gun, she saw what she believed was a gun and that Yarborough “may have had a gun in his right pocket at the time of the offense.” Id., 426 S.E.2d at 134.

We have decided two cases dealing with the sufficiency of the evidence to support a conviction under Code § 18.2-53.1. In Cox v. Commonwealth, 218 Va. 689, 690-91, 240 S.E.2d 524, 525 (1978), we held that a pistol, which was capable of firing live ammunition but which was loaded with wooden bullets, was “a weapon whose use was specifically proscribed by [Code § 18.2-53.1].” In Holloman v. Commonwealth, 221 Va. 196, 197, 269 S.E.2d 356, 357 (1980), the sole issue was whether the instrument in the defendant’s possession was a “firearm” within the meaning of Code § 18.2-53.1. Although the instrument “appealed] in size, weight and shape to be a .45 caliber automatic pistol,” it fired BBs “by the force of a spring, not by gunpowder.” Id. We held that the evidence was sufficient to convict the defendant of using a firearm in violation of Code § 18.2-53.1, even though the instrument was fired by a spring rather than by gunpowder. Id. at 199, 269 S.E.2d at 358.

These cases 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. Martin v. Commonwealth, 224 Va. 298, 300, 295 S.E.2d 890, 892 (1982). 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.¹ 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. Cameron v. Commonwealth, 211 Va. 108, 110, 175 S.E.2d 275, 276 (1970). Conviction of a crime is not justified if the evidence creates only a suspicion or probability of guilt. Id.

In the present case, evidence that Yarborough “may have had” a firearm in his possession creates merely a suspicion of guilt. Possession of a firearm is an essential element of the statutory offense, and the fact that Konchal merely thought or perceived that Yarborough was armed is insufficient to prove that he actually possessed a firearm.² Clearly, the evidence does not establish guilt beyond a reasonable doubt and exclude every reasonable hypothesis of innocence. Therefore, it is insufficient, as a matter of law, to support the firearm conviction.

Accordingly, we will reverse the Court of Appeals’ judgment in part and dismiss the firearm indictment.

Reversed in part and dismissed.

1 The dissent advances a proposition not argued by the Attorney General. Even so, the instruction that became the law of the case does not alter the fact that the Commonwealth had the burden of proving beyond a reasonable doubt that Yarborough actually possessed a firearm.

2 With respect to the crime of robbery, however, a victim’s perception that the assailant was armed is sufficient to establish the necessary element of violence or intimidation. Johnson v. Commonwealth, 209 Va. 291,296, 163 S.E.2d 570, 574 (1968).