Opinion
Record No. 1559-92-4
February 22, 1994
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA DONALD HALL KENT, JUDGE.
Susan L. Korfanty, Senior Assistant Public Defender, for appellant.
Marla Lynn Graff, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Reginald Tyrone Cross challenges the sufficiency of the evidence to support his conviction of the use of a firearm while attempting to commit a robbery. Code § 18.2-53.1. Cross contends that no firearm was used in the offense and that his victim was not put in fear by the display of the object in his hand. We disagree and affirm.
Code § 18.2-53.1 provides in pertinent part:
It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit murder, rape, forcible sodomy, inanimate object sexual penetration as defined in § 18.2-67.2, robbery, burglary, malicious wounding as defined in § 18.2-51, . . . or abduction.
Ms. Elaine Joseph was working at her store when Cross pointed an object wrapped in a brown hat at her and said, "I have a gun, and I want everything in your drawer." Ms. Joseph responded by saying, "You're kidding." She could not see Cross' fingers, so she did not know if the object was a gun. Ms. Joseph testified that, although she was not sure whether the object was a gun, she was "not going to argue." "He said it was a gun, so I thought it was a gun."
Cross jumped over the counter. Ms. Joseph screamed. Cross said, "You're not going to scream. You're not going to call the police. I'm going to kill you first." As Cross pulled Ms. Joseph up against the counter and pushed her head against a cabinet, he choked her. She continued to scream until she lost consciousness. Cross dropped her and fled the store. At the scene the police discovered two pieces of wood which Cross presumably had wrapped in a hat and displayed as a gun.
Cross was indicted for attempted robbery and use of a firearm while attempting to commit robbery. He pled guilty to the attempted robbery charge and not guilty to the firearm charge. The court found Cross guilty of both charges and sentenced him to seven years for the attempted robbery and two years on the firearm charge.
"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); see Code § 8.01-680.
Code § 18.2-53.1 "not only is aimed at preventing actual physical injury or death but also is designed to discourage criminal conduct that produces fear of physical harm."Holloman v. Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980).
For that reason, we examine the circumstances from the victim's point of view. Thus, it is irrelevant that the defendant did not in fact have a firearm if his victim rationally believed he had one. See Cromite v. Commonwealth, 3 Va. App. 64, 67, 348 S.E.2d 38, 40 (1986); Yarborough v. Commonwealth, 15 Va. App. 638, 642-43, 426 S.E.2d 131, 134 (1993).
Cross argues that because Ms. Joseph reacted by exclaiming, "You're kidding," when he told her that he was going to rob her, she did not subsequently fear that the object he displayed was a firearm. We reject that argument. Ms. Joseph testified when Cross displayed what he said was a gun she decided not to argue with him. Thus, Ms. Joseph responded to Cross' assertion that he had a gun and was reasonably and subjectively put in fear of physical harm.
From the totality of the circumstances, a rational fact finder could infer that Ms. Joseph believed Cross possessed a gun while attempting to rob her. Because the evidence was sufficient to support Cross' conviction for violating Code § 18.2-53.1, the conviction is affirmed.
Affirmed.