Harold Alonzo Wilkins v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Humphreys and Retired Judge Olitsky ∗
Argued at Richmond, Virginia
HAROLD ALONZO WILKINS
MEMORANDUM OPINION ∗∗ BY
v. Record No. 2606-98-2 JUDGE ROBERT J. HUMPHREYS
AUGUST 22, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
Robert G. O'Hara, Jr., Judge
Christopher B. Ackerman (James R. Traylor and
Associates, on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General;
Jeffrey S. Shapiro, Assistant Attorney
General, on brief), for appellee.
Harold Alonzo Wilkins appeals his conviction in a bench
trial of using a firearm during the commission of a robbery.
Wilkins complains that the trial court erred in finding that the
evidence was sufficient as a matter of law to support a
conviction. We disagree and affirm his conviction for the
reasons that follow.
∗
Retired Judge Norman Olitsky took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400, recodifying Code § 17-116.01.
∗∗
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
I. BACKGROUND
On the evening of June 22, 1997, Wilkins entered a Hampton
Inn wearing a gray T-shirt and jeans, carrying a bag. Wilkins
approached the front desk and handed the hotel clerk, Melinda
Henry, a note, which read "have gun, will shoot, large bills".
At trial Henry testified that there was no one else present in
the hotel lobby at that time. She testified that Wilkins stood
behind the counter, which was about four to five feet high and
two feet in width, causing her view of Wilkins' body to be
blocked from the chest down.
Henry further testified that she never saw a weapon, nor
did she see Wilkins make any movements, which would indicate
that he had a weapon. She also testified that she saw both of
his hands during the incident. However, she stated she "had no
reason to doubt that he didn't have a weapon." Henry put the
note down on the counter, went to the cash drawer, and pulled
out all of the large bills which totaled approximately
$200-$400. In a low voice, Wilkins told her to "remain calm
[- j]ust be calm." Henry then gave Wilkins the bills, which he
put into the bag he was carrying before exiting the lobby of the
hotel.
Two days later, on July 24, 1997, Wilkins returned to the
Hampton Inn. He again approached the front desk with a bag in
his hand. At that time, he told the clerk, "give me all the
money in the register . . . don't be stupid and get anyone
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shot." After the clerk gave Wilkins the money from the drawer,
Wilkins turned to another person who was standing behind the
front desk and said, "give me yours too." That person was a
police officer wearing plain clothes. When the officer drew her
gun and identified herself, Wilkins ran. The police captured
him in the parking lot. Wilkins had no weapon at that time.
Wilkins admitted to robbing the hotel clerk on both
occasions, because he needed money to buy drugs. However,
Wilkins testified that he did not have a gun during either
robbery. He further stated that in giving Henry the note, his
"intent [during the first robbery] was to get her to give [him]
the money." When asked, "was it your intent to make her think
you had a gun," Wilkins replied, "[y]es[, t]hat's why I gave her
the note."
At the conclusion of the evidence, the trial judge found
Wilkins "guilty by the circumstantial evidence which convicts
him beyond a reasonable doubt" of use of a firearm in the
commission of a robbery on June 22, 1997. 1
II. ANALYSIS
"Where the sufficiency of the evidence is challenged after
conviction, it is our duty to consider it in the light most
favorable to the Commonwealth and give it all reasonable
1
Wilkins was also found guilty of two counts of robbery and
one count of attempted robbery. However, he appeals only the
conviction for use of a firearm.
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inferences fairly deducible therefrom. We should affirm the
judgment unless it appears from the evidence that the judgment
is plainly wrong or without evidence to support it. Code
§ 8-491." Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975). Moreover, "[i]f there is evidence to
support the conviction, an appellate court is not permitted to
substitute its own judgment for that of the finder of fact, even
if the appellate court might have reached a different
conclusion." Commonwealth v. Presley, 256 Va. 465, 466, 507
S.E.2d 72 (1998).
Code § 18.2-53 provides that "[i]t shall be unlawful for
any person to use or attempt to use any pistol, shotgun, rifle,
or other firearm or display such weapon in a threatening manner
while committing or attempting to commit . . . robbery . . . ."
In Yarborough v. Commonwealth, the Supreme Court of Virginia
held that in order to obtain a conviction under "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. . . ." Yarborough, 247 Va. 215, 218, 441
S.E.2d 342, 344 (1994). In reaching that conclusion, the
Supreme Court found that a victim's perception that an accused
is armed, without more, is insufficient to support a conviction
under Code § 18.2-53.1 which requires "actual possession" of a
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firearm as a necessary element of the offense. Id. at 219, 441
S.E.2d at 344.
There is no question here that Wilkins did not "display" a
firearm during the June 22, 1997 robbery. There is also no
question that Wilkins threatened the clerk by stating "have gun,
will shoot". At trial, the trier of fact was merely concerned
with whether the evidence established that Wilkins "actually
possessed" a firearm in such context that it was "used" in the
commission of the robbery.
We considered this very issue in Elmore v. Commonwealth,
where we held that "[a]n out-of-court statement by the defendant
that admits or acknowledges a fact or facts tending to prove
guilt is admissible in evidence against the defendant." Elmore
v. Commonwealth, 22 Va. App. 424, 429, 470 S.E.2d 588, 590
(1996). In Elmore, the victim (a bank teller) testified that
the accused gave her a note which stated "this is a robbery".
The victim further testified that the accused pointed to his
pocket and indicated there was a gun there "like he had stated
in his note". Id. at 426, 470 S.E.2d at 588. We found that the
evidence concerning the note and the accused's action in
pointing to his pocket established "more than the victim's mere
belief or perception that the defendant had a gun . . .
[because] the defendant's out-of-court statement admitted the
existence of a 'gun.'". Id. at 429, 470 S.E.2d at 590.
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Wilkins relies upon our holding in Elmore, and the specific
facts of that case, to argue that the note, in and of itself,
was insufficient to prove that Wilkins had a gun during the
June 22 robbery. Wilkins argues that, under the facts of
Elmore, there must have been something more -- a gesture, a
swift movement, or actual sight of the gun -- in order for the
evidence to be sufficient to support a conviction under
Code § 18.2-53.1. However, Wilkins' reliance on Elmore is
unfounded.
In Elmore, we very simply found that the accused's
out-of-court statement admitting possession of a weapon, was
sufficient evidence to support a conviction. Furthermore, we
have since applied Elmore, and similar cases, to reinforce that
holding by stating that "circumstantial 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 merely "pushed" an object that the victim
never saw, up against the victim's back and said, "[d]on't turn
around or I'll shoot." Id. at 605, 484 S.E.2d 165, 166.
In the present case, Wilkins admits that the note he handed
to Henry stated "have gun, will shoot . . .". However, at
trial, Wilkins claimed that he didn't have a gun and thus, his
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"out of court admission", without more, was insufficient to
support a conviction. We disagree.
Wilkins simply made two contradicting factual statements.
First, he told the clerk, at the time of the robbery, that he
did have a gun. At trial, Wilkins told the fact finder that he
didn't have a gun. The fact finder believed Wilkins' first
statement and not his second. It is well settled that "[t]he
credibility of a witness and the inferences to be drawn from
proven facts are matters solely for the fact finder's
determination. [Furthermore] [i]n its role of judging witness
credibility, the fact finder is entitled to disbelieve the
self-serving testimony of the accused and to conclude that the
accused is lying to conceal his guilt." Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235
(1998).
As stated above, we have held that an out-of-court
admission is sufficient evidence to support a conviction for use
of a firearm. Thus, viewing the evidence in the light we must,
we cannot find that the trial court acted unreasonably in
believing Wilkins' initial statement, admitting that he actually
possessed a firearm during the robbery.
Affirmed.
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Benton, J., dissenting.
Code § 18.2-51.1 forbids "any person to use or attempt to use
any . . . firearm . . . while committing or attempting to commit
. . . robbery." In Yarborough v. Commonwealth, 247 Va. 215, 441
S.E.2d 342 (1994), the Supreme Court held 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 . . . while committing
. . . robbery." Id. at 218, 441 S.E.2d at 344 (emphasis added).
This holding states in the conjunctive the necessary elements.
The evidence in this case proved neither element required by
Yarborough. No evidence, circumstantial or direct, proved beyond
a reasonable doubt that Wilkins either actually had a firearm in
his possession or used or attempted to use a firearm.
Furthermore, although I believe that Elmore v. Commonwealth, 22
Va. App. 424, 470 S.E.2d 588 (1996), was wrongly decided, this
case is substantially dissimilar to Elmore, where the defendant
both gave a note stating he had a gun and pointed to his pocket.
The threat to use the gun, which Elmore apparently turns upon, is
not present in this case.
For these reasons, and for the reasons more fully stated in
McBride v. Commonwealth, 24 Va. App. 603, 608-12, 484 S.E.2d 165,
168-70 (1997) (en banc) (Benton, J., with whom Coleman, J., joins,
dissenting), I would hold that the evidence was insufficient to
prove beyond a reasonable doubt that Wilkins actually had a
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firearm or attempted to use a firearm in the commission of the
robbery. Therefore, I dissent.
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