*1 arrest, cation to probable establish cause to the blood test was and, therefore, illegally administered sufficient to sustain the conviction.
Affirmed.
Court of
Richmond.
May 1996.
Elder, J., dissenting filed opinion. *2 (Marks brief), Harrison, Hopewell, on Peter D. Eliades & for appellant. (James S. Decker, Attorney Assistant General
Marla Graff brief), General, Gilmore, III, Attorney appellee. on ELDER, BAKER, and JJ. COLEMAN Present: COLEMAN, Judge. in a trial of
Robert D. Elmore was convicted bench a firearm in the commission of robbery and use of that the robbery. Elmore contends and, therefore, actually possessed that he evidence is insufficient to sustain the conviction for use in violation of firearm the commission of hold that the evidence is sufficient and 18.2-53.1. We affirm the defendant’s conviction.
At 9:07 a.m. on March the defen- approximately Bank in Petersburg dant entered the First Colonial Deets, Noni a teller at the bank. The defendant approached bag,” immediately handed Deets a blue “bank and Deets and contained a “suspicious” bag light became because the stated, robbery.” that the “this is a note. Deets testified note did not want to hurt The note also stated twenties, all anyone “quietly put and instructed Deets to [her] *3 bag.” explained fifties and hundreds in the bank Deets the events that followed: down, I
After I the note I looked back like couldn’t read said, he doing. believe what he was He looked me and anyone. I don’t want to hurt And then he very quietly, to was a pointed pocket. And that indicated me there he had stated in his gun, like note. added). put money bag, including Deets
(Emphasis the alarm The defendant money” triggered system. “bait bag and the note and fled from the bank. grabbed of the robber but recognized photograph Deets the bank However, other identify court. two could robbery posi- employees present during who were who robbed tively person identified the defendant as the Deets. robbery, use of a
The defendant was indicted for bank a bank robbery, entering firearm in the commission of a while armed with a After deadly weapon. its the defendant moved to strike
presented ground all three on the charges on
427
insufficient
to
that he was the
who committed
person
The trial court overruled the motion with re-
to the
for bank
and use of a firearm
spect
robbery
indictments
robbery
the commission of a
but struck the evidence as to
of
a bank
entering
deadly weapon
with
because
the Commonwealth failed to
“the actual existence of a
evidence,
weapon.”1
presented
After
his
court convicted him of the remaining
charges.
two
face,
striking
foregoing
1. On its
the trial court’s
the evidence on the
ground appears to be inconsistent with the defendant’s conviction for
robbery. Although
use of a firearm in the commission of
it is well
trial,
jury
established that
ain
the defendant cannot attack a conviction
ground
on the
acquittal
that it is inconsistent with a verdict of
on a
Powell,
57, 63,
471,
charge,
related
475-76,
United
States
469 U.S.
105 S.Ct.
To obtain had a actually accused must to use attempted that he used or in his possession in manner.” firearm a displayed firearm or 218, Commonwealth, 215, 441 247 Va. S.E.2d v. Yarborough (1994). in must be reviewed 342, appeal, 344 On and must be to the Commonwealth most favorable light deducible therefrom. fairly inferences accorded all reasonable 352, Commonwealth, 349, 216 v. Va. Higginbotham (1975). will not be dis 534, judgment The trial court’s 537 to wrong or without evidence plainly unless it “is turbed it.” Id. support the victim and approached accused
In money.” all stated, give your me stickup[;] “this is a 217, The victim testified 441 at 343. S.E.2d approached in as he pockets both of his hands his accused had right ... from his ‘something protruding and that saw “[s]he a gun was ‘thought and she jacket,’ [there] hand of his pocket ” held that Court appeal, Supreme Id. On pocket.’ his merely thought perceived victim] “the fact that [the that he armed is insufficient [the accused] 219, 441 at 344. Id. at S.E.2d a firearm.” actually possessed controlling here Yarborough is contends that The defendant actually that he evidence is insufficient because the a firearm. 19 Sprouse In v. Yarborough a “defendant light we held that
303 firearm under Code the use of a not be convicted for may a reasonable beyond discloses § unless the evidence 18.2-53.1 reasonably the victim to object used to cause doubt that the 412, 418, 258 Va. Simon v. 18.2-53.1. Cf. only (1979) (“Collateral applicable estoppel becomes S.E.2d litigation”); the issue now acquittal resolved prior when 1108, 1111, Va. Lee prior (1979) (“[Collateral appears that the estoppel apply if it does not than that ‘upon an other grounded issue judgment could have been ") (quoting from consideration’ seeks to foreclose which the defendant Swenson, L.Ed.2d 90 S.Ct. 397 U.S. Ashe v. (1970)). *5 551-52, fact, Id. at was, in a firearm.” it was a firearm believe Therefore, held that we at 306. 453 S.E.2d § 18.2-53.1 under Code sustain a conviction insufficient to object at trial that conceded where at Id. toy pistol.” “was a during used Sprouse permit would not Sprouse, at 305. In we object that an from circumstantial evidence to infer fact finder that the conceded firearm, where the Commonwealth awas not object was proved evidence uncontroverted direct a firearm. Va.App. v.
Conversely, Wilson
affirmed a conviction
we
Here, that the note Noni Deets testified that he had a “gun.” her stated gave And that indicated pocket. pointed
And then he his note.2 he had stated in gun, there was a like me or that admits by An statement out-of-court guilt is admissi- tending a fact or facts acknowledges the defendant. See Caminade against in evidence ble 505, 510, 338 S.E.2d Alatishe v. (1991). Thus, in this unlike than the victim’s of more consists
evidence had a gun. the defendant perception mere belief admitted the Here, statement the defendant’s out-of-court distinguish- are circumstances here “gun.” The existence con- the Commonwealth Sprouse, where able from those leaving the the note before took 2. Deets testified testimony at trial and Deets’ the note was unavailable bank. Friend, E. was admissible. Charles regarding contents of the note 16-5, (4th 1993). ed. Virginia at 646-47 Law Evidence in The Sprouse toy pistol. only ceded at used The pos- evidence that refutes the defendant’s admission that he denial, general sessed a firearm is his which the trial court rejected. *6 gave
The record reveals that the defendant Deets a note that he had a stating “gun,” pointed pocket and said that anyone. he did not want to hurt This evidence is sufficient to prove beyond a reasonable doubt that the defendant actually a in possessed firearm and used it a manner. affirm Accordingly, we the defendant’s conviction under Code § 18.2-53.1.
Affirmed,.
ELDER, Judge, dissenting.
I respectfully majority’s opinion. dissent from the Because not prove actually Commonwealth did that the defendant firearm, a possessed support the evidence failed to the defen- dant’s conviction for use of a firearm the commission of during robbery. a
As the majority acknowledges, originally the defendant was (1) (2) charges: robbery, indicted and tried on three use (3) of a firearm in of a robbery, entering the commission and a deadly weapon. bank while armed with a After the Common- case, presented wealth its the defendant moved to strike the charges. evidence on all three The trial court struck the entering deadly evidence as to the a bank with a failed to weapon because the actual However, of a weapon. existence the trial court overruled the respect motion with to the indictments for bank a in of a robbery. use of firearm the commission failed to finding The trial court’s that the Commonwealth a inconsistent with weapon” “the actual existence of is ruling its the evidence is sufficient robbery.3 defendant used a firearm the commission of a majority correctly Yarborough proposition that 3. The cites for the robbery, obtain a conviction for use of a firearm in the commission finding factual explicit made an The trial court which this weapon, a possess supported no evidence to be a firearm. argued a firearm the that the defendant used judgment trial court’s judgment court’s a Where a trial commission of it, wrong, it this plainly or where is support lacks evidence to Martin v. judgment. disturb the may Court § 8.01- 680. one, trial
In to resolve the majority attempts footnote ruling. majority inconsistent The cites case law stand- court’s may necessarily that a firearm not ing proposition for therefore con- “deadly weapon.” majority The qualify as fact of whether cludes that by resolved or found
firearm was a bank armed with court’s dismissal of the trial court’s majority ignores The *7 not in finding possession that the defendant was explicit weapon, This distinction is opposed as to a above, critical. As discussed once the court found (the weapon purpose for one possess deadly weapon), logically the bank with the trial court could not conclude consistently for another purpose defendant somehow a firearm firearm, (the in the commission of a of use of robbery). reasons, I and dismiss the defen-
For these
would reverse
in the commission of a
conviction for use of a firearm
dant’s
actually had a fire-
must
that the accused
"the Commonwealth
attempted
possession and that he used or
to use the
arm in his
displayed the firearm in a
manner.”
Va. at