De'mon Lamont Berry v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Petty and McCullough
UNPUBLISHED
Argued at Richmond, Virginia
DE’MON LAMONT BERRY
MEMORANDUM OPINION ∗ BY
v. Record No. 2582-11-2 JUDGE WILLIAM G. PETTY
NOVEMBER 27, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge
Patrick D. Killebrew (Patrick D. Killebrew, PLLC, on brief), for
appellant.
Benjamin H. Katz, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
De’mon Lamont Berry was convicted in a bench trial of robbery, in violation of
Code § 18.2-58, the possession of a firearm after having been previously adjudicated delinquent
for an offense that would be a violent felony if committed by an adult, in violation of
Code § 18.2-308.2, and the use of a firearm in the commission of a robbery, in violation of
Code § 18.2-53.1. Berry contends that the trial court erred in denying his motion to strike
because the circumstantial evidence was insufficient to convict him of any of the three charges
against him. For the following reasons, we disagree with Berry’s arguments. Therefore, we
affirm his convictions.
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Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I.
“On appeal, ‘we review the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible therefrom.’” Archer v. Commonwealth,
26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) (quoting Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987)).
On March 24, 2011, at approximately 4:46 a.m., Officer Steven Fields received a report
that two black men, one carrying a shotgun and the other carrying a silver handgun, robbed a
man who had been walking on Patterson Avenue in Richmond, Virginia. The victim testified
that a car he described as a dark green sedan drove past him as he was walking down the street.
There were four black males inside the sedan, all looking at him as the car drove by. About
thirty to forty seconds after the sedan passed him and disappeared around the corner, two black
males—one carrying a shotgun and the other carrying a silver handgun—ran up to him from the
direction that the car had turned before it was no longer in view. 1 At 5:01 a.m., approximately
seventeen blocks from the robbery, Officer Fields saw a dark green sedan matching the victim’s
description.
At trial, Officer Fields testified that when he first passed the green car, he saw the
appellant, De’mon Berry, sitting in the right rear passenger seat. After Officer Fields pulled up
and stopped his own vehicle behind the car, Berry was standing outside the car, next to the right
rear passenger door. Berry subsequently walked away from the car. Upon later inspection of the
area around the right rear passenger door, Officer Fields noticed a silver handgun slightly
underneath the car. Additionally, Detective John Cary discovered a shotgun tucked in the trunk
of the car, hidden behind a speaker.
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The victim was not able subsequently to identify either of the robbers.
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In his interview with Detective Patrick Ripley following the robbery, Berry denied any
involvement in the robbery. He stated that his cousin gave him a ride to see a girl whom he had
met on the internet but never in person. Berry claimed that his cousin dropped him off near the
girl’s home. When asked where she lived, Berry said that she lived on Bromley Lane, but he
could not provide an address. According to Berry, after the girl refused to meet with him, he
called his friend “Jay” to give him a ride home. Berry stated that when Jay arrived to pick him
up, Jay was accompanied by two men that Berry had never met before. Berry claimed that he
had just gotten into the car when Officer Fields drove by and that he was sitting in the rear
driver’s side seat.
Additionally, Berry gave Detective Ripley the purported phone numbers of both the girl
and Berry’s cousin. The number Berry provided for the girl was disconnected and had
previously been associated with an address on Barton Avenue, not Bromley Lane. Detective
Ripley also dialed the number supposedly assigned to Berry’s cousin and discovered that the
number belonged to a man who said he did not know Berry or his cousin.
II.
Berry assigns error to the trial court’s denial of his motion to strike. Berry contends that
the evidence was insufficient to convict him of any of the three charges against him. We
disagree.
“When . . . sufficiency of the evidence [is challenged following] . . . a bench trial, ‘the
trial court’s judgment is entitled to the same weight as a jury verdict and will not be disturbed on
appeal unless it is plainly wrong or without evidence to support it.’” Burrell v. Commonwealth,
58 Va. App. 417, 433, 710 S.E.2d 509, 517 (2011) (quoting Hickson v. Commonwealth, 258 Va.
383, 387, 520 S.E.2d 643, 645 (1999)). It is the prerogative of the trier of fact “‘to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic
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facts to ultimate facts.’” Brown v. Commonwealth, 56 Va. App. 178, 185, 692 S.E.2d 271, 274
(2010) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “‘Whether an alternative
hypothesis of innocence is reasonable is a question of fact and, therefore, is binding on appeal
unless plainly wrong.’” Archer, 26 Va. App. at 12-13, 492 S.E.2d at 832 (quoting Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993)).
A. Robbery
First, Berry contends that the trial court erred in finding that the evidence was sufficient
to demonstrate his involvement in the robbery. Berry argues that the “purely circumstantial”
evidence submitted to the trial court established merely the suspicion of his involvement in the
robbery. Essentially, Berry alleges that he was not present in the sedan prior to the robbery, that
only after the robbery took place did the driver of the sedan pick him up, and that therefore, the
evidence is insufficient to establish his involvement in the robbery. We disagree.
“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). Here,
the circumstantial evidence is sufficient to exclude every hypothesis except that of guilt. A
reasonable inference could be drawn that the dark green sedan that passed the victim just before
he was robbed was the same dark green sedan that Officer Fields discovered fifteen minutes after
the robbery occurred, at a location only seventeen blocks from where the victim was robbed.
This is especially compelling in light of the victim’s testimony that the two black males who
robbed him were carrying a shotgun and a silver handgun, alongside the fact that the police
found a shotgun in the trunk of the sedan and a silver handgun on the ground next to where
Officer Fields saw Berry standing.
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In addition, the finder of fact was permitted to reject Berry’s contention that he was not
involved in the commission of the robbery. Notwithstanding Berry’s proffered explanations
concerning the means by which he came to be present in the sedan at the time of his encounter
with Officer Fields, the trial court was not required to credit his testimony. See Armstead v.
Commonwealth, 56 Va. App. 569, 581, 695 S.E.2d 561, 567 (2010). Indeed, “‘[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.’” Flanagan v.
Commonwealth, 58 Va. App. 681, 702, 714 S.E.2d 212, 222 (2011) (quoting Marable v.
Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998)). Here, Detective
Ripley’s follow-up investigation attempting to verify the story provided by Berry established that
Berry was not being truthful. Moreover, the trial court expressly found incredible Berry’s
explanations for where he was that night. The trial court was entitled to infer that Berry provided
such falsehoods to conceal his involvement in the robbery.
Thus, we hold that the trial court did not err in finding the evidence sufficient to establish
Berry’s involvement in the robbery.
B. Possession of a Firearm
Next, Berry argues that the evidence was insufficient to demonstrate that he had
possession of either of the firearms—the shotgun found in the trunk or the handgun found on the
ground outside the car. He argues that the evidence did not establish that he knew the weapons
were in the car. We disagree.
Code § 18.2-308.2 provides that “[i]t shall be unlawful for . . . any person who has been
convicted of a felony . . . to knowingly and intentionally possess . . . any firearm.” Possession
can be either actual or constructive. See Bolden v. Commonwealth, 275 Va. App. 144, 148, 654
S.E.2d 584, 586 (2008) (“A conviction for the unlawful possession of a firearm can be supported
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exclusively by evidence of constructive possession; evidence of actual possession is not
necessary.”). Constructive possession of a firearm can be established by “‘evidence of acts,
statements, or conduct by the defendant or other facts and circumstances proving that the
defendant was aware of the presence and character of the firearm and that the firearm was
subject to his dominion and control.’” Id. (quoting Rawls v. Commonwealth, 272 Va. 334, 349,
634 S.E.2d 697, 705 (2006)). Although a defendant’s proximity to the firearm is not dispositive,
“it is a circumstance probative of possession and may be considered as a factor in determining
whether the defendant possessed the firearm.” Id.
Berry argues that although testimony placed him in the car where the firearms were
found, there was no evidence that he knew the weapons were in the car. According to Berry,
proximity to the weapons is the only thing that could suggest dominion and control. Berry
contends that the circumstances of this case create only a suspicion that he possessed the firearm.
Here, it was reasonable for the finder of fact to conclude that Berry at least constructively
possessed the handgun. Not only was Berry seen standing next to the right rear passenger door,
the area where the handgun was found, but Officer Fields also testified that Berry was sitting in
the right rear passenger seat of the sedan when Officer Fields first passed the sedan while
driving. Indeed, in light of Berry’s contention to the police that he was not sitting behind the
right passenger seat, the trier of fact could reasonably infer that Berry “‘was aware of the
presence and character of the firearm and that the firearm was subject to his dominion and
control.’” Id. (quoting Rawls, 272 Va. at 349, 634 S.E.2d at 705). Ultimately, “the trial court,
sitting as factfinder, was at liberty to discount [Berry’s] self-serving statements as little more
than lying to ‘conceal his guilt,’ and could treat such prevarications as ‘affirmative evidence of
guilt.’” Armstead, 56 Va. App. at 581, 695 S.E.2d at 567 (quoting Coleman v. Commonwealth,
52 Va. App. 19, 25, 660 S.E.2d 687, 690 (2008)).
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Thus, we hold that the trial court did not err in finding the evidence sufficient to establish
that Berry had possession of a firearm in violation of Code § 18.2-308.2.
C. Use of a Firearm in the Commission of a Felony
Lastly, Berry contends that the trial court erred in finding the evidence sufficient to prove
that he used a firearm in the commission of a felony. We disagree.
Code § 18.2-53.1 provides that “[i]t shall be unlawful for any person to use or attempt to
use any . . . firearm . . . while committing or attempting to commit . . . robbery.” The term
“firearm,” as used in Code § 18.2-53.1, “includes any instrument that is capable of expelling a
projectile by the force of gunpowder.” Thomas v. Commonwealth, 25 Va. App. 681, 685, 492
S.E.2d 460, 462 (1997). The term “firearm” also refers to “any instrument that ‘gives the
appearance’ of having the capacity to propel a bullet by the force of gunpowder.” Id. (quoting
Holloman v. Commonwealth, 221 Va. 196, 199, 269 S.E.2d 356, 358 (1980) (holding that a BB
pistol that fired BBs by the force of a spring, but resembled a .45 caliber handgun, was a
“firearm” because it “gave the appearance of having a firing capability”)).
Here, the trial court credited the victim’s testimony that a firearm with the appearance of
having a firing capability was used in the commission of the robbery against him. Additionally,
the trial court credited the victim’s testimony that the specific weapons used to rob him matched
those recovered from the sedan. The trial court also credited the testimony of Officer Fields,
which placed Berry in the specific location inside the sedan next to where the handgun was later
recovered. The combined effect of these circumstances reasonably led the trial court to conclude
that Berry was guilty of using a firearm in the commission of a felony.
Thus, we hold that the trial court did not err in concluding that the evidence was
sufficient to convict Berry of using a firearm in the commission of a robbery in violation of
Code § 18.2-53.1.
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III.
For the foregoing reasons, we affirm Berry’s convictions.
Affirmed.
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