Jermaine Shored Davis v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
JERMAINE SHORED DAVIS
MEMORANDUM OPINION * BY
v. Record No. 0453-97-2 JUDGE SAM W. COLEMAN III
FEBRUARY 24, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Donald W. Lemons, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
briefs), for appellant.
Ruth Ann Morken, Assistant Attorney General
(Richard Cullen, Attorney General, on brief),
for appellee.
Jermaine Shored Davis was convicted in a bench trial for
robbery, use of a firearm in the commission of robbery, entering
a bank with intent to commit a larceny, and felonious wearing of
a mask to conceal his identity to the public. He contends the
evidence is insufficient as a matter of law: (1) to identify him
as a perpetrator of the robbery, and (2) to support the
conviction for use of a firearm in the commission of robbery. We
find that the evidence is sufficient to prove that appellant was
one of the robbers and that Rule 5A:18 bars our consideration of
his claim regarding use of a firearm. Accordingly, we affirm the
convictions.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
IDENTITY
"On appeal, we view the evidence in the light most favorable
to the Commonwealth, granting to it all reasonable inferences
fairly deducible therefrom." Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987). Viewed accordingly, the
evidence proved that Regina Halstead and Julia Gregory were at a
Signet Bank branch to make a deposit for their employer. As they
entered the bank, they observed two men dressed in dark clothes
standing by a public telephone near the entrance of the bank.
Less than five minutes later, two men wearing dark clothing and
dark masks entered and robbed an employee of the bank at
gunpoint.
The Commonwealth introduced two sets of photographs taken by
the bank's surveillance cameras. One set of photos taken outside
the bank showed two men standing by the pay phone. The face of
one man is clearly shown. The second set of photos taken inside
the bank depicted the two robbers wearing dark clothes identical
to those worn by the men shown standing near the pay phone in the
first set of photos. The photographs inside the bank show very
clearly the face of the second man. Nothing distinguishes the
men who robbed the bank from the men who were outside the bank.
Halstead testified that there was "no doubt in [her] mind"
that the two men that she had seen standing by the phone were the
same men she saw inside the bank who committed the robbery. She
testified that the only difference in their appearance was that
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they were wearing masks when they entered and robbed the bank.
Both Halstead and Gregory testified that the appellant was one of
the two men they had seen standing by the pay phone. Moreover,
Halstead positively identified appellant as one of the men
depicted in the photographs taken outside the bank. The
Commonwealth also presented evidence that a fingerprint lifted by
police from the pay phone matched appellant's fingerprint.
We find that the evidence supports the trial court's
conclusion that appellant was one of the men who robbed the
bank's tellers. Halstead's identification testimony and the
photographic evidence proved that the two men seen by the pay
phone were the men who committed the robbery and that one of them
was the appellant. Both Halstead and Gregory identified
appellant as one of the men standing by the pay phone. The
identification of appellant was corroborated by the presence of
his fingerprint on the pay phone.
Neither Gregory nor the bank tellers could identify
appellant as one of the bank robbers. However, Halstead did.
Halstead identified appellant as one of the men in photographs
using the telephone outside the bank. The photographs clearly
show that the two men inside the bank were dressed identically to
the men using the telephone outside the bank. Although the
Commonwealth failed to ask any witness whether either of the
persons depicted in the photographs inside the bank was the
appellant, the trier of fact had the opportunity to view
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appellant and the photographs. The weight to be given to the
evidence was a question for the fact finder to decide. See
Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598,
601 (1986). Considering the totality of the circumstances, and
granting to the Commonwealth the inferences fairly deducible from
the record, the Commonwealth's evidence is sufficient to prove
beyond a reasonable doubt that appellant was one of the two men
who committed the robbery.
USE OF A FIREARM IN THE COMMISSION OF ROBBERY - RULE 5A:18
Appellant also contends the evidence is insufficient to
prove that the firearm used in the commission of the robbery was
capable of firing. Appellant failed to raise the issue to the
trial court in arguing his motion to strike the Commonwealth's
evidence. Rule 5A:18 provides that "[n]o ruling of the trial
court . . . will be considered as a basis for reversal unless the
objection was stated together with the grounds therefor at the
time of the ruling, except for good cause shown or . . . to
attain the ends of justice." Because the record does not reflect
a reason that we should invoke the good cause or miscarriage of
justice exceptions to the rule, Rule 5A:18 precludes our
consideration of the firearm issue.
For the foregoing reasons, we affirm the convictions.
Affirmed.
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