Lead Opinion
Joseph Franklin McBride (appellant) was convicted of robbery and use of a firearm in the commission of robbery. On appeal, appellant contends that the evidence was insufficient to sustain the firearm conviction. We disagree and affirm the conviction.
I.
On October 11, 1994, Michael Doyle, manager of Doyle Bedding and Furniture in Norfolk, arrived at the store at 10:00 a.m. At around 11:00 a.m., Doyle saw a man standing across the street, holding what appeared to be a baby. A few minutes later, as Doyle was on the floor assembling a love seat, he saw the man walking down the sidewalk toward the store’s front door. He then heard the bell on that door ring as the door opened.
Doyle felt the man sit down beside him on the love seat and “push” something “up against [his] back.” Three times the assailant said, “Don’t turn around or I’ll shoot.” At trial, Doyle testified that he never saw a gun.
Doyle was instructed to lie on the floor. The robber asked if Doyle had a gun or if anyone else was in the store. He then tied Doyle’s hands behind him with wire. At that time, a second person came into the store. Doyle could hear the second person “rifling through” the front desk. The robber took cash, credit cards, and a wallet from Doyle. When the robber left the store, Doyle saw a blanket and plastic bottle which had not been there previously.
Detectives investigating the robbery discovered a plastic three liter soda bottle which had “balled up” newspapers in a plastic bag taped to its top. They also found a pink, blue and black blanket, and speaker wire. A finger and palm print belonging to appellant were discovered on the newspaper. The police executed a search warrant at appellant’s apartment and discovered several credit cards belonging to Doyle in a man’s shoe in a bedroom.
The issue presented on appeal is whether the evidence was sufficient to prove that appellant was guilty of use of a firearm in the commission of robbery.
“On appeal, we review the evidence in the light most • favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.” Martin v. Commonwealth,
In Yarborough v. Commonwealth,
Yarborough, in robbing his victim, said, “This is a stickup,” and demanded all her money. The victim did not see a gun but testified that she thought there was a gun in Yarborough’s pocket. Id. at 216-17,
Within four months of the release of the Yarborough opinion, the Supreme Court awarded an appeal in Johnson v.
On appeal to the Virginia Supreme Court, Johnson argued, inter alia, that under Yarborough, the evidence was insufficient to sustain his conviction for use of a firearm in the commission of robbery. The Commonwealth distinguished Yarborough, noting that Johnson expressly claimed to have a gun and threatened to use it, whereas in Yarborough, no such claims were made. The Commonwealth argued that Johnson’s conviction was based on his “assertive conduct and representations that he possessed a gun.”
The Supreme Court, by unpublished order, affirmed the judgment of the trial court.
In Elmore v.Commonwealth,
III.
Here, appellant actually “pushed” an object into the victim’s back and told him he would “shoot” if the victim did not cooperate. While appellant did not explicitly state that he had a gun, the clear inference to be drawn from his threat to “shoot,” is that he did have a gun.
The circumstantial evidence, considered as a whole and viewed in the light most favorable to the Commonwealth, excluded all reasonable hypotheses of innocence and is therefore sufficient to support the trial court’s finding of guilt.
We affirm the judgment of the trial court.
Affirmed.
Notes
. The order is dated October 21, 1994.
Dissenting Opinion
dissenting.
I respectfully disagree that Yarborough v. Commonwealth,