Opinion
Record No. 1999-91-1
March 23, 1993
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK THOMAS R. MCNAMARA, JUDGE
Loeva J. Cook for appellant.
Marla Lynn Graff, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Koontz, Judges Baker and Willis
Argued at Norfolk, Virginia
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Donald Lee Brown (appellant) appeals from his bench trial convictions in the Circuit Court of the City of Norfolk (trial court) for robbery and use of a firearm during the commission of that felony. The sole issue presented on appeal is whether the evidence is sufficient to support those convictions. We have reviewed the record and find sufficient evidence to sustain both convictions.
"On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it." Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code § 8.01-680).
At trial, Dennis King (victim) testified that at approximately 11:00 a.m. on December 10, 1990, he left his mentally retarded brother in his Buick Regal automobile and entered a restaurant where he remained for "about five minutes." Upon leaving the restaurant, he observed two men walking away from his automobile. Both of the men turned toward him. One of them, described as about six feet tall, took a gun from under his coat and pointed it at victim's face, holding it approximately six inches away. The gunman demanded and received the keys to victim's car, then walked behind him. While nudging victim in the back, the gunman pulled victim's wallet from his pocket and pushed victim toward the Buick. Victim's brother was ordered out of the car and the gunman's companion got in the driver's seat. The gunman got in the passenger's side. The two men then drove off in victim's car. Victim described his car as a 1982 four-door Buick Regal, medium blue, with a dark blue vinyl top.
Elwood Smith testified that he had been found guilty of stealing victim's car, which occurred at 11:00 a.m. on December 10, 1990. He believed that the car he drove from the scene was a four-door Buick Regal. He testified that as he drove off, appellant was seated in the passenger's seat. Smith said he had merely asked appellant for a ride "uptown" and appellant agreed to his request.
Smith admitted that he had been convicted of several other felonies and misdemeanors, and that a probation violation was pending, as well as another charge in Portsmouth.
At the conclusion of the Commonwealth's evidence, appellant's motion to strike was denied. No further evidence was presented. In this appeal, appellant asserts that because victim did not specifically identify him as the gunman, the evidence is insufficient to support his conviction as the robber. We disagree with appellant and agree with the trial court's conclusion:
The testimony establishes the fact that a robbery was committed, that there were two men that — one who actually threatened him with the weapon and gave the orders and took his wallet, then got into the passenger seat. The other got into the driver's seat of the car and they drove off at that point. Mr. King gave no identification, but that left the only question in the case is the identification. Was this defendant the participant with the gun who got into the passenger seat? The other witness establishes that he was. He himself had gotten into a car of that description at that place at that time.
From the evidence, the fact finder could infer beyond a reasonable doubt that appellant robbed victim at gunpoint. For the reasons stated, we cannot say that the judgment is plainly wrong or without evidence to support it. Accordingly, we affirm the convictions.
Affirmed.