Opinion
Record No. 0076-00-3
December 5, 2000
Appeal from the Circuit Court of the City of Danville, James F. Ingram, Judge
S. Jane Chittom, Appellate Defender (Public Defender Commission, on briefs), for appellant.
Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: Judges Elder, Frank and Humphreys
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Avery Demetrie Kirby (appellant) appeals from his bench trial convictions for robbery, use of a firearm in the commission of robbery, and possession of a firearm by a convicted felon. On appeal, he challenges the sufficiency of the evidence to support the robbery and concomitant conviction for using a firearm on the ground that the testimony of the victim was inherently incredible, and he challenges the conviction for possession of a firearm by a convicted felon on the ground that no evidence established the firearm was operational. We hold the victim's testimony was not inherently incredible and, therefore, was sufficient to support the first two convictions. We further conclude the evidence was sufficient to prove the object appellant pointed at the victim was a "firearm" as that term is used in Code § 18.2-308.2. Thus, we affirm appellant's convictions for robbery, use of a firearm in the commission of robbery, and possession of a firearm by a convicted felon.
A. SUFFICIENCY OF EVIDENCE TO PROVE ROBBERY AND USE OF A FIREARM
When considering the sufficiency of the evidence on appeal in a criminal case, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. See Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The conclusions of the fact finder on issues of witness credibility may be disturbed on appeal only if this Court finds that the witness' testimony was "inherently incredible, or so contrary to human experience as to render it unworthy of belief." Fisher v. Commonwealth, 228 Va. 296, 299-300, 321 S.E.2d 202, 204 (1984). In all other cases, we must defer to the conclusions of "the fact finder[,] who has the opportunity of seeing and hearing the witnesses." Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736-37 (1985).
Although "[t]he failure to report an alleged [crime involving] force and violence for an unreasonable period after the incident occurred casts suspicion on the truthfulness of the [witness]," a "credible explanation . . . for such a delay" weighs against a finding that the delay renders the testimony inherently incredible. Willis v. Commonwealth, 218 Va. 560, 563, 238 S.E.2d 811, 813 (1977). "The victim's failure to immediately report [an] incident [does] not render his testimony inherently incredible as a matter of law. The [fact finder is] entitled to attribute such significance as it deem[s] appropriate to this delay." Corvin v. Commonwealth, 13 Va. App. 296, 299, 411 S.E.2d 235, 237 (1991) (citation omitted).
Applying these principles in a case involving allegations that a probation officer committed acts of homosexual sodomy against a juvenile, we held that a reporting delay of fourteen months under such circumstances did not render the victim's testimony inherently incredible in light of the victim's "youth, fright and embarrassment," id., thereby distinguishing it fromWillis, in which the alleged rape victim waited over a month to report the offense, offered no explanation for her late reporting, and made numerous conflicting statements while testifying about key events at the preliminary hearing and on direct and cross-examination at trial, see 218 Va. at 562-64, 238 S.E.2d at 812-13.
Here, viewing the evidence in the light most favorable to the Commonwealth, Graham's delay in reporting the robbery was one of only four or five days. Graham explained that he "didn't want . . . to bring the police into it" because appellant knew where he lived and, in fact, resided in the same apartment complex as Graham, and Graham feared that appellant might "try to hurt one of my little sisters or brothers or somethin'." Even when Graham told his uncle several days later, Graham asked his uncle not to tell his mother because he still feared appellant and did not want the matter reported to the police. Thus, the delay was brief, and Graham gave an explanation for the delay which, if believed by the fact finder, prevented a finding that the delay rendered his testimony inherently incredible.
The fact that Graham's testimony about the robbery was uncorroborated also was not dispositive of his credibility. Graham denied that the encounter involved a drug transaction rather than a robbery. As outlined above, it was within the province of the fact finder to evaluate Graham's testimony in light of appellant's evidence and to determine whose version of events it found more credible. In making that comparison, the fact finder was "entitled to disbelieve the self-serving testimony of the accused," no matter how many witnesses he presented to corroborate his version of events, "and to conclude that [appellant] [was] lying to conceal his guilt." Marable v. Commonwealth, 27 Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).
Graham's testimony was not inherently incredible and was sufficient to support the trial court's finding, beyond a reasonable doubt, that appellant robbed Graham at gunpoint of $580. The evidence, therefore, was sufficient to support appellant's convictions for robbery and use of a firearm in the commission of robbery, and we affirm those convictions.
Appellant's only challenge to the sufficiency of the evidence to support these two convictions was his contention that Graham's testimony was inherently incredible. Therefore, we do not address separately the sufficiency of the evidence to prove the individual elements of each offense.
B. SUFFICIENCY OF EVIDENCE TO PROVE POSSESSION OF OPERATIONAL FIREARM 1. Rule 5A:18
The Commonwealth contends appellant failed properly to preserve this issue for appeal. We disagree.
Rule 5A:18 provides that "[n]o ruling of the trial court . . . will be considered as a basis for reversal unless the objection was stated together with the grounds therefor at the time of the ruling, except for good cause shown or to enable the Court of Appeals to attain the ends of justice." A defendant may preserve an objection to the sufficiency of the evidence by making a motion to strike, but "[w]hen [he] elects to present evidence on his behalf, he waives the right to stand on his motion to strike the evidence made at the conclusion of the Commonwealth's case."White v. Commonwealth, 3 Va. App. 231, 233, 348 S.E.2d 866, 867 (1986). In a bench trial, he may again preserve the issue of sufficiency for appeal through a new or renewed motion to strike, an appropriate closing argument, or a motion to set aside the verdict which states the objection with specificity. See Campbell v. Commonwealth, 12 Va. App. 476, 478-81, 405 S.E.2d 1, 1-3 (1991) (en banc).
Here, counsel for appellant specifically objected, in her first motion to strike, to the sufficiency of the evidence to establish the item appellant possessed was a firearm and was operational. Although counsel for appellant cited the wrong statute in her argument, she properly named the offense she was challenging — possession of a firearm by a convicted felon. The Commonwealth responded specifically to this argument, contending that the circumstantial evidence of operability was sufficient to make out a prima facie case of possession of a firearm by a convicted felon. During his case, appellant presented no evidence regarding the operability of the gun. At the conclusion of all the evidence the motion to strike was renewed. In fact, the trial court's order recites that the motion to strike was renewed "on the grounds previously stated." Manifestly, then, the trial court was aware of the nature of appellant's objection to the sufficiency of the evidence on the firearm possession charge, thereby satisfying the requirements of the contemporaneous objection rule. See id. at 480, 405 S.E.2d at 2.
2. Proof of Operational Status of Alleged Firearm
Code § 18.2-308.2 makes it "unlawful for . . . any person who has been convicted of a felony . . . to knowingly and intentionally possess or transport any firearm. . . ." Id.
To support a conviction for possession of a firearm by a convicted felon in violation of Code § 18.2-308.2, the Commonwealth must initially prove that the accused possessed an object manufactured for the purpose of expelling a projectile by an explosion. Gregory v. Commonwealth, 28 Va. App. 393, 400, 504 S.E.2d 886, 889 (1998); see Jones v. Commonwealth, 16 Va. App. 354, 400, 429 S.E.2d 615, 617, aff'd on reh'g en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993). Although the best method for proving an item "is designed or intended to expel projectiles by the discharge or explosion of gunpowder" is through the "presentation of direct forensic evidence," the Commonwealth also may prove this prong with circumstantial evidence, as long as the evidence, if circumstantial, "'is sufficiently convincing to exclude every reasonable hypothesis except that of guilt.'" Gregory, 28 Va. App. at 400, 504 S.E.2d at 889 (quoting Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, 876 (1983)); see also Redd v. Commonwealth, 29 Va. App. 256, 258-59, 511 S.E.2d 436, 437-38 (1999).
Second, the Commonwealth must prove that the object is operational as a firearm, Gregory, 28 Va. App. at 400, 504 S.E.2d at 889, or that it may readily be made operational, Williams v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (2000). Again, although the best method of proving the object is operational is to introduce direct evidence from a ballistics expert who test-fired the weapon, circumstantial proof of operability is sufficient. See Gregory, 28 Va. App. at 400, 504 S.E.2d at 889.
We applied the Gregory test in Redd, in which the alleged robber of a convenience store was convicted, inter alia, for possession of a firearm by a convicted felon, a violation of Code § 18.2-308.2. See Redd, 29 Va. App. at 257, 511 S.E.2d at 437. In Redd, we found "[t]he store clerk's description of the object Redd brandished [and placed on the counter] as 'a long black gun' [was] insufficient, [standing] alone, to prove that the object possessed the ability to expel a projectile by the power of an explosion,'" but affirmed the conviction because Redd's threat to kill the store clerk was an "implied assertion" of operability.Id. at 259, 511 S.E.2d at 438.
In this case, appellant contends Redd controls because he did not make a threat to kill. However, we distinguish Redd on its facts. Redd entered the convenience store and placed a "long black gun" on the counter. Id. at 258, 511 S.E.2d at 437. Redd ordered the clerk to give her the money in the cash register and warned "that she would kill [the clerk] if she set off the silent alarm." Id. We held:
The store clerk's description of the object brandished by Redd as "a long black gun" is insufficient, alone, to prove that the object possessed the "ability to expel a projectile by the power of an explosion." However, Redd's threat, upon presenting the weapon, to kill the clerk was an implied assertion that the object was a functioning weapon, being in fact the firearm that it appeared to be and possessing the power to kill. This implied assertion, which was corroborated by the appearance of the object and was uncontradicted by any other evidence, was evidence sufficient to support the trial court's finding that the object was a firearm.
Id. at 259, 511 S.E.2d at 438.
In Redd, the act of placing the "long black gun" on the counter was, at best, an ambiguous gesture. It was not a clear assertion that the weapon was operable. In the instant case, however, ambiguity does not exist. Appellant pointed a semi-automatic gun at Graham and demanded everything in Graham's pockets. See Taylor v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d ___, ___ (2000) (holding that "[t]he context in which the object appeared gave meaning and definition to the witness' observation . . ."). We, therefore, find that pointing the gun at Graham while demanding the contents of his pockets was an implied assertion that the weapon was operable. By pointing a gun at Graham and demanding money, appellant was, indeed, making a statement equivalent to "I will shoot you if you do not comply with my demand." In Redd, the implied assertion came from Redd's statement. In this case, the same assertion came from the pointed weapon. The brandishing of the weapon had no other meaning. To hold otherwise would ignore the context in which the gun was brandished.
For these reasons, we hold the evidence was sufficient to support appellant's convictions for robbery, use of a firearm in the commission of robbery, and possession of a firearm by a convicted felon. Therefore, we affirm appellant's convictions.
Affirmed.
I concur in all aspects of the majority opinion except part "B-2" which relates to the operability of the alleged firearm. I dissent from that portion of the opinion because I would hold that this case is controlled by Redd v. Commonwealth, 29 Va. App. 256, 511 S.E.2d 436 (1999), and do not find the majority's distinctions convincing.
Redd stands for the proposition that the testimony of a victim that a convicted felon brandished a firearm at her is insufficient to prove the firearm was operational and, therefore, insufficient, standing alone, to support a conviction for violating Code § 18.2-308.2. Ultimately in Redd, we held the evidence was sufficient to prove both that the object was designed to expel a projectile and had the ability to do so because the alleged robber's presentation of the "long black gun" was coupled with a threat to kill the clerk if she set off the store's silent alarm, which constituted an "implied assertion" that the object was "a functioning weapon" in the absence of evidence to the contrary.
In appellant's case, in contrast to Redd, the circumstantial evidence, viewed in the light most favorable to the Commonwealth, was insufficient to exclude all reasonable hypotheses of appellant's innocence. Although appellant pointed the object at Graham and demanded his money, he made no direct threat to harm or kill Graham if he failed to comply. Thus, in contrast to Redd, the circumstantial evidence was insufficient to support a finding, to the exclusion of all reasonable hypotheses of innocence, that the object appellant brandished was "a functioning weapon."
For these reasons, I would reverse and dismiss appellant's conviction for possession of a firearm by a convicted felon.