Maurice Ernest Ivey v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Clements
Argued at Richmond, Virginia
MAURICE ERNEST IVEY
MEMORANDUM OPINION * BY
v. Record No. 2506-00-2 JUDGE LARRY G. ELDER
SEPTEMBER 18, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Christine A. Cestaro, Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
Paul C. Galanides, Assistant Attorney General
(Mark L. Earley, Attorney General; Thomas M.
McKenna, Assistant Attorney General, on
brief), for appellee.
Maurice Ernest Ivey (appellant) appeals from his
convictions for robbery, use of a firearm in the commission of a
felony, possession of a firearm by a juvenile, and possession of
a firearm after having been convicted of a felony. 1 On appeal,
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
On appellant's motion, the court severed the charge of
possession of a firearm by a convicted felon. Appellant was
convicted in a jury trial for robbery, use of a firearm in the
commission of a felony and possession of a firearm by a
juvenile. Appellant waived his right to a jury trial on the
charge of possession of a firearm after having been convicted of
a felony, and the trial court convicted him of that offense
based on the parties' stipulation to the evidence offered in the
jury trial.
he contends the evidence was insufficient to prove he was the
criminal agent in the robbery, thus requiring reversal of all
the convictions. In the alternative, he argues that
insufficient evidence proved the gun used in the robbery was a
firearm within the meaning of Code § 18.2-308.2, thereby
requiring reversal of his conviction for possession of a firearm
by a convicted felon. We hold the evidence was sufficient to
prove appellant was the criminal agent and that the operational
firearm recovered from his home two days after the robbery was
the weapon used to commit the robbery. Thus, we hold the
evidence was sufficient to support appellant's convictions, and
we affirm.
In reviewing the sufficiency of the evidence on appeal, we
examine the record in the light most favorable to the
Commonwealth, granting to it all reasonable inferences fairly
deducible therefrom. See Martin v. Commonwealth, 4 Va. App.
438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a trial
court will be disturbed only if plainly wrong or without
evidence to support it. See id. The credibility of a witness,
the weight accorded the testimony, and the inferences to be
drawn from proven facts are matters to be determined by the fact
finder. See Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989). Any element of a crime may be proved by
circumstantial evidence, e.g., Servis v. Commonwealth, 6 Va.
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App. 507, 524, 371 S.E.2d 156, 165 (1988), provided the evidence
as a whole "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).
At trial, the Commonwealth bears the burden of proving the
identity of the accused as the perpetrator beyond a reasonable
doubt. Brickhouse v. Commonwealth, 208 Va. 533, 536, 159 S.E.2d
611, 613-14 (1968). In determining whether the evidence adduced
was sufficient to prove identity, we consider factors including:
"the opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the accuracy
of the witness' prior description of the
criminal, the level of certainty
demonstrated by the witness at the
confrontation and the length of time between
the crime and the confrontation."
Currie v. Commonwealth, 30 Va. App. 58, 73, 515 S.E.2d 335, 343
(1999) (quoting Neil v. Biggers, 409 U.S. 188, 199-200, 93
S. Ct. 375, 382, 34 L. Ed. 2d 401 (1972)). Relevant to the
eyewitness' level of certainty in identifying a perpetrator is
whether the witness had seen the perpetrator prior to his
commission of the charged offense. See Lea v. Commonwealth, 16
Va. App. 300, 304, 429 S.E.2d 477, 479 (1993); Palmer v.
Commonwealth, 14 Va. App. 346, 349, 416 S.E.2d 52, 54 (1992).
The fact that the perpetrator wore a mask may impair a
witness' ability to identify him, but it does not prevent such
an identification as a matter of law. Compare Smallwood v.
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Commonwealth, 14 Va. App. 527, 530-34, 418 S.E.2d 567, 568-70
(1992) (reversing conviction where eyewitness i.d. of masked
robber was equivocal and other evidence was insufficient to link
accused to robbery), with Hammer v. Commonwealth, 207 Va. 165,
166-68, 148 S.E.2d 896, 897-98 (1966) (affirming conviction
where victim "testified positively" that accused was her masked
assailant because she identified his voice, eyes and build); and
Phan v. Commonwealth, 258 Va. 506, 508-12, 521 S.E.2d 282,
283-85 (1999) (affirming conviction where accused fought with
and threatened victim; multiple witnesses testified that accused
and one of masked assailants who later killed victim were both
"unusually short and had the same 'chubby' figure, weight, hair
length and color, nationality and skin tone"; and jury rejected
accused's alibi).
Further, the absence of a direct, in-court identification
of the accused is not dispositive, as long as the evidence, as a
whole, proves guilt beyond a reasonable doubt. See Coleman, 226
Va. at 53, 307 S.E.2d at 876. In fact, an in-court
identification often is argued to be suspect as "unduly
suggestive." See, e.g., Charity v. Commonwealth, 24 Va. App.
258, 261-64, 482 S.E.2d 59, 60-62 (1997).
An identification made by a victim or
an eyewitness soon after a crime has been
committed may be more objective and accurate
and have greater probative value than one
made later in court when unduly suggestive
circumstances . . . or the changed
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appearance of the defendant[] might
adversely affect the identifier's testimony.
Niblett v. Commonwealth, 217 Va. 76, 82, 225 S.E.2d 391, 394
(1976) (holding evidence of extrajudicial identification
admissible to overcome deficiencies in courtroom identification
where identification witness available for cross-examination).
Appellant contends the evidence was insufficient to support
his convictions because it did not prove he was the criminal
agent. He argues that no witness ever identified him at trial
as the robber. Alternatively, he argues that the victim's
identification of him as the perpetrator was insufficient
because the victim remembered no distinguishing characteristics
of the robber and was unable to articulate why he believed
appellant was the masked assailant. We disagree and hold that
the evidence as a whole, viewed in the light most favorable to
the Commonwealth, was sufficient to prove that the victim
identified appellant as the perpetrator on multiple occasions
and that appellant was, in fact, the person who robbed the West
End Market on March 6, 2000.
Mr. Lee testified that he had ample opportunity to view
appellant prior to the robbery of March 6, 2000, because
appellant had been a regular customer of the store for the
duration of Mr. Lee's employment. Lee testified that he saw
appellant in the store several times each week during the year
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Mr. Lee had been working there. Appellant admitted he visited
the store at least twice a day and knew Mr. Lee by sight.
Mr. Lee also had an opportunity to view appellant at close
range on the day of the robbery and testified that he recognized
appellant "immediately," before he became aware that appellant
was attempting to rob the store. Appellant was dressed in the
same outer clothing he wore into the store "almost every day,"
black pants with an army jacket and a hat "that becomes . . . a
mask." Because Mr. Lee knew appellant as a regular customer, he
believed appellant was "just joking" when the masked appellant
told Mr. Lee not to move. Not until Lee noticed the gun
appellant pointed at him could any fear for his safety have
interfered with Lee's powers of observation. Lee testified that
he could see the robber's mouth, eyes and hands, and that the
robber was the same height and weight as appellant. Lee said he
identified the robber as appellant not only by the clothing he
wore but also by the way he moved. Lee had an opportunity to
view the robber's movements as he entered the store and
attempted to open the cash register and then, when the robber
was unable to open the cash drawer himself, as he held the book
bag in which he ordered Lee to deposit the money.
Mr. Lee never equivocated in his identification of
appellant. Immediately after the robbery, before reviewing the
surveillance videotape, Lee told his employer, Mr. Kang, that he
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knew the robber as a regular customer of the store and simply
did not know his name. Only two days later, when Lee again saw
appellant in the store dressed in entirely different clothing,
he immediately recognized appellant as the robber, and he
immediately notified Mrs. Kang and then Mr. Kang that the robber
had returned to the store. Mr. Kang testified that as soon as
he arrived at the store, Lee pointed to appellant, who was still
standing outside, and told him appellant was the person who had
robbed the store. Mr. Kang identified appellant as Maurice
Ivey. When Mr. Kang expressed fear of implicating an innocent
person, Lee told Kang he was certain appellant was the robber.
Given Lee's demonstrated familiarity with appellant, his
mannerisms, and his usual attire, we hold the jury was entitled
to accept Lee's unequivocal identification of appellant as the
robber as evidence sufficient to prove his identity as the
perpetrator beyond a reasonable doubt. See Hammer, 207 Va. at
166-68, 148 S.E.2d at 897-98 (affirming conviction where victim
observed masked, knife-wielding assailant only during assault
but "testified positively" that accused was her assailant
because she recognized his voice, eyes and build in a two-person
lineup held over three weeks later).
Circumstantial evidence corroborated Lee's identification
of appellant as the robber. When the police searched
appellant's bedroom two days after the robbery, they found a
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small, shiny, stainless-colored gun, camouflage army jacket and
green book bag. The gun was concealed beneath a jacket on
appellant's bed, and the jacket was found "bunched up" behind a
pair of speakers in appellant's closet. These items matched the
descriptions Lee gave to police immediately after the robbery,
and Lee testified that these items closely resembled those used
in the robbery. Although appellant claimed he had reported to
school on the morning of the robbery and was on a bus on his way
home from school at the time the robbery occurred, appellant
presented no witnesses to corroborate his testimony, and the
Commonwealth's evidence showed he was marked absent from school
that day. The jury, in its role as the finder of fact, was
entitled to conclude that appellant was lying to conceal his
guilt. See, e.g., Speight v. Commonwealth, 4 Va. App. 83, 88,
354 S.E.2d 95, 98 (1987) (en banc). Although appellant's
untruthfulness was not substantive evidence of guilt, the
remaining evidence, both direct and circumstantial, viewed in
the light most favorable to the Commonwealth, was sufficient to
prove appellant was the robber.
The evidence also was sufficient to prove the object
appellant possessed and displayed during the March 6 robbery was
an actual firearm and was the same operational firearm that
police seized during a search of appellant's room only two days
later. Although Mr. Lee saw only the "front" and "top" part of
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the gun with which appellant threatened him during the robbery,
he testified that the size and color of the weapon introduced at
trial were "the same" as the robber's gun. Lee also testified
that the robber pointed the barrel and "the hole directly at
[him]" as he yelled, "Don't move," and various other commands at
Lee. Finally, the police found only one weapon in appellant's
possession when they searched his room two days later, and
subsequent ballistics testing confirmed that the weapon was an
operational firearm. Thus, the only reasonable hypothesis
flowing from the circumstantial evidence, viewed in the light
most favorable to the Commonwealth, was that the weapon
appellant used in the robbery on March 6 was an actual firearm
as required to support his conviction for possession of a
firearm after having been convicted of a felony pursuant to Code
§ 18.2-308.2. See Armstrong v. Commonwealth, 36 Va. App. 312,
322, 549 S.E.2d 641, 646 (2001) (en banc).
For these reasons, we hold the evidence was sufficient to
support appellant's convictions, and we affirm.
Affirmed.
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