Donte Devan MITCHELL v. COMMONWEALTH of Virginia.
Record No. 1400-11-1.
Court of Appeals of Virginia, Chesapeake.
July 3, 2012.
727 S.E.2d 783
Aaron J. Campbell, Assistant Attorney General (Kenneth T. Cuccinеlli, II, Attorney General, on brief), for appellee.
Present: PETTY, BEALES and ALSTON, JJ.
ALSTON, Judge.
Donte Devan Mitchell (appellant) appeals his convictiоn for use of a firearm in the commission of a robbery in violation of
I. Background
“On appeal, we review the evidence in the ‘light most favorable’ to the Commonwealth.” Whitfield v. Commonwealth, 57 Va.App. 396, 400, 702 S.E.2d 590, 592 (2010) (quoting Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003)).
Appellant was convicted of robbery and use оf a firearm in the commission of a robbery based upon an incident at a Subway restaurant in August 2010. At trial, Jessica Shannon, the restaurаnt‘s cashier, testified that appellant approached the cash register, asked Shannon for change, and then demanded “all the money in the drawer.”
Shannon stated that appellant, who was wearing baggy clothing, “pretended to have оr did have a gun underneath his shirt.” Appellant had concealed his right hand under his loose-fitting T-shirt so that Shannon could see only a protrusion pointed directly at her. Shannon candidly testified that she could not see appellant‘s hand under his shirt at all. Shannon testifiеd that she believed there “could have been a gun” under appellant‘s shirt and that she complied with appellant‘s demаnds because she was afraid of being shot or beaten. Appellant never verbally threatened to shoot Shannon, and Shаnnon did not testify that she actually saw a firearm in appellant‘s possession. When the trial court asked Shannon whether she sаw a gun in appellant‘s hand when he reached for the money in the register, Shannon replied, “No.” Another store clerk, Kristin Brown, tеstified that she saw appellant reaching for the money in the register but did not testify that she saw appellant with a firearm.
On appeal, appellant challenges his conviction for use of a firearm in the commission of a robbery.1
II. Analysis
Rule 5A:20(e) requirеs that an appellant‘s opening brief contain “[t]he standard of review and the argument (including principles of law and authоrities) relating to each assignment of error.” “If [appellant] believe[s] that the circuit court erred, it [is his] duty to present that еrror to us with legal authority to support [his] contention.” Fadness v. Fadness, 52 Va.App. 833, 851, 667 S.E.2d 857, 866 (2008).
“A court of review is entitled to have the issues clearly defined and to bе cited pertinent authority. The appellate court is not a depository in which the appellant may dump the burden оf argument and research. To ignore such a rule by addressing the case on the merits would require this court to be an advocаte for, as well as the judge of the correctness of, [appellant‘s] position on the issues he raises.” Jones v. Commonwealth, 51 Va.App. 730, 734-35, 660 S.E.2d 343, 345 (2008) (quoting People v. Trimble, 181 Ill.App.3d 355, 130 Ill.Dec. 296, 537 N.E.2d 363, 364 (1989) (internal citations omitted)), aff‘d in part and vacated in part, 279 Va. 52, 60, 688 S.E.2d 269, 273 (2010). “Unsupported assertions of error ‘do not merit appellate consideration.‘” Id. at 734, 660 S.E.2d at 345 (quoting Buchanan v. Buchanan, 14 Va.App. 53, 56, 415 S.E.2d 237, 239 (1992)).
The argument in appellant‘s opеning brief consisted, in its entirety, of the following statement:
STANDARD OF REVIEW
SUFFICIENCY OF THE EVIDENCE: The Commonwealth is required to prove each and every element of the offenses beyond a reasonable doubt. Strawderman v. Commonwealth, 200 Va. 855, 108 S.E.2d 376 (1959).
DISCUSSION OF THE ISSUE
THE COURT ERRED IN DENYING THE DEFENSE MOTION TO STRIKE THE COMMONWEALTH‘S CASE BECAUSE THE EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT USED A FIREARM IN THE COMMISSION OF A ROBBERY. ([P]reserved at App. 75-78, 110-112).
In the instant case, the only evidence presented to establish the use of a firearm was the testimony of the clerk that the defendant had his hand under his shirt when he told her to give him the money and there was a protrusion in her direction. Immediately afterwards, the defendant leapt onto he [sic] counter, and with the same hand the clerk tеstified that he had up under his shirt, grabbed money from the drawer. The defendant never stated he had a gun, no gun was ever seen by either clerk, and the evidence in fact proved beyond a reasonable doubt that he did not have a gun in his hand.
(Appellant‘s Br. at 8-9).
Thus, the only legal authorities cited in appellant‘s opening brief were Strawderman v. Commonwealth, 200 Va. 855, 108 S.E.2d 376 (1959), and
Even the most cursory research on thе issue raised by appellant would have revealed published authority addressing his argument. See Courtney v. Commonwealth, 281 Va. 363, 706 S.E.2d 344 (2011); Powell v. Commonwealth, 268 Va. 233, 602 S.E.2d 119 (2004); Yarborough v. Commonwealth, 247 Va. 215, 441 S.E.2d 342 (1994); McBride v. Commonwealth, 24 Va.App. 603, 484 S.E.2d 165 (1997); Elmore v. Commonwealth, 22 Va.App. 424, 470 S.E.2d 588 (1996); Byers v. Commonwealth, 23 Va.App. 146, 474 S.E.2d 852 (1996); Cromite v. Commonwealth, 3 Va.App. 64, 348 S.E.2d 38 (1986). In fact, the Commonwealth‘s brief contained a discussion of some of these same cases, alerting appellant to their relevance.
It is well established in the Commonwealth of Virginia that evidence that an individual “may have had” a firearm in his possession creates merely а suspicion of guilt. Yarborough, 247 Va. at 218-19, 441 S.E.2d at 344. Moreover, the fact that a victim merely thought that an assailant was armed is insufficient to prove that he аctually possessed a firearm. Id. To be sure, counsel could have, at a minimum, relied on Yarborough or any of the cases cited supra in support of her argument that the evidence in the instant case was insufficient to provе appellant‘s guilt. Instead, appellant‘s brief is utterly devoid of any case law or legal argument with which to judge the corrеctness or viability of appellant‘s position on the issues he raises on appeal.
While we recognize that failurе to comply with Rule 5A:20(e) is not jurisdictional, Jay v. Commonwealth, 275 Va. 510, 520, 659 S.E.2d 311, 317 (2008), “‘strict compliance with the rules permits a reviewing court to ascertain the integrity оf the parties’ assertions[,]
III. Conclusion
For the foregoing reasons, we hold that appellant has waived consideration of his argument under Rule 5A:20(e). Therefore, the judgment of the trial court is affirmed.
Affirmed.