Donte Devan Mitchell v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Kelsey, McCullough and Senior Judge Clements
Argued at Chesapeake, Virginia
DONTE DEVAN MITCHELL
MEMORANDUM OPINION* BY
v. 	Record No. 1891-11-1 	JUDGE STEPHEN R. McCULLOUGH
OCTOBER 16, 2012
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
V. Thomas Forehand, Jr., Judge
Eric T. Cronin, Assistant Public Defender (Office of the Public
Defender, on brief), for appellant.
Aaron J. Campbell, Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
Appellant was convicted of robbery and use of a firearm during the commission of a
robbery. He argues that the evidence was insufficient to sustain his conviction under Code
§ 18.2-53.1 for using a firearm during the commission of the robbery. We agree and reverse.
BACKGROUND
Appellant walked into a Quizno’s restaurant and asked for a job application. When told
the store was out of application forms, he walked out. A short time later appellant walked back
into the store and headed directly to the restroom. He soon emerged from the restroom with
“something” under his shirt. He told an employee to “open the drawer” of the register.
Appellant grabbed the cash from the register and walked out. He was apprehended about seven
to ten minutes after the robbery. No gun was recovered.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication.
UNPUBLISHED

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The store employee never saw the item under appellant’s shirt. She testified that she
observed a bulge. The reason she thought “[i]t looked like it was a gun” was because of “[t]he
way he held it,” and “[b]ecause it was pointed right at me and it scared me, and why would you
hold your hand underneath the shirt if you’re not holding a weapon?” She was able to determine
that appellant likely was not holding a knife, because the angle was not right for a knife. The
employee candidly admitted that she “assumed there was a weapon” but that she “did not know
what kind of weapon it was at that point.” She said, “[i]t looked like it was a gun. It looked like
it could have been a gun underneath his shirt, and there was a child in the store so I was going to
assume the worst.” She further acknowledged that she was not sure the bulge was a gun, that
“[i]t could have been a taser, anything.” “Whatever it was,” she testified, “a hand, a pencil, it
was aimed toward me.”
ANALYSIS
When considering the sufficiency of the evidence to sustain
a conviction, “this Court reviews ‘the evidence in the light most
favorable to the prevailing party at trial and consider[s] all
inferences fairly deducible from that evidence.’ This Court will
only reverse the judgment of the trial court if the judgment ‘is
plainly wrong or without evidence to support it.’ ‘If there is
evidence to support the convictions, the reviewing court is not
permitted to substitute its own judgment, even if its opinion might
differ from the conclusions reached by the finder of fact at the
trial.’”
Startin v. Commonwealth, 281 Va. 374, 379, 706 S.E.2d 873, 877 (2011) (citations omitted).
Under Code § 18.2-53.1, it is “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 . . . robbery.” To be convicted under this offense, the Commonwealth
must establish the use or attempted use of either an actual firearm or “an instrumentality that has
the appearance of a firearm,” i.e. one “which [gives] the appearance of having a firing
capability.” Startin, 281 Va. at 382, 383, 706 S.E.2d at 878, 879. The prosecution can, of

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course, prove its case by circumstantial evidence, including statements made by the accused. For
example, in Powell v. Commonwealth, 268 Va. 233, 602 S.E.2d 119 (2004), the defendant told
store employees that he had a pistol in his pocket and told the employees not to move and
nobody would be hurt. Id. at 237, 602 S.E.2d at 121. The Supreme Court found this evidence
sufficient to convict under Code § 18.2-53.1.
In this instance, the defendant did not display an actual firearm and none was later
recovered. He did not make any statements, as in Powell, that the fact finder could credit as
circumstantial evidence of the presence of a firearm. The prosecution’s case rested on the
observations of the store employee. On these facts, the testimony of the store employee fell short
of establishing that appellant had a gun or an instrumentality that had the appearance of a firearm
under his shirt. The store employee candidly admitted that she was not sure whether appellant
held a gun, noting that it could have been a hand, a pencil, “a taser, anything.” She surmised that
the bulge might be a gun because “why would you hold your hand underneath the shirt if you’re
not holding a weapon?” She admitted that she naturally assumed the worst, noting that there was
a child in the store at the time of the robbery. The evidence does not establish the use or
attempted use of a firearm or of an instrumentality that had the appearance of a firearm.
Accordingly, we hold that the conviction for use or display of a firearm in the commission of
robbery was without evidence to support it.
CONCLUSION
We find the evidence insufficient and, accordingly, reverse appellant’s conviction for use
of a firearm in the commission of robbery.
Reversed and final judgment.