Courtney v. Commonwealth of Va.., Record No. 100776.

Docket NºRecord No. 100776.
Citation706 S.E.2d 344, 281 Va. 363
Case DateMarch 04, 2011
CourtSupreme Court of Virginia

281 Va. 363
706 S.E.2d 344

Tavoris M. COURTNEY
v.
COMMONWEALTH of Virginia.

Record No. 100776.

Supreme Court of Virginia.

March 4, 2011.


[706 S.E.2d 344]

Gregory Sheldon (Bain Sheldon, on brief), for appellant.Craig W. Stallard, Assistant Attorney General (Kenneth T. Cuccinelli II, Attorney General, on brief), for appellee.

[706 S.E.2d 345]

Present: KINSER, C.J., LEMONS, GOODWYN, and MILLETTE, JJ., and RUSSELL, LACY, and KOONTZ, S.JJ.*Opinion by Justice DONALD W. LEMONS.

[281 Va. 364] In this appeal, we consider whether the Court of Appeals erred when it affirmed the conviction of Tavoris M. Courtney (“Courtney”) for use or display of a firearm in the commission of a felony under Code § 18.2–53.1.

I. Facts and Proceedings Below

On January 11, 2008, Laura Nelson (“Nelson”) was driving to her home in Chesterfield County around 10:00 p.m. She noticed that [281 Va. 365] a vehicle turned into her subdivision and followed her until she pulled into her driveway. As she parked and opened her car door, a masked man approached and told her to get back into her vehicle. She described the man as “a black male with a hood over a sweatshirt ... and a bandana over his face,” exposing only his eyes.

When Nelson did not immediately comply, her assailant, later identified as Courtney, told her to “[q]uit looking at me and get back in the car.” When Nelson refused, Courtney said, “I have a gun, get back in the car.” Nelson never saw a gun or the item that Courtney was holding under his shirt, but she believed Courtney had a gun and said that she was “very scared.” Nelson told Courtney that that he would “have to kill [her] or shoot [her] because [she was] not getting back in the car.” She remained where she was but also pressed the vehicle's horn. Courtney took Nelson's two purses and her cellular phone, and he ran away. At that point, Nelson also saw a second man running away, and she chased both men down the street. She pursued both men while screaming for help, and her neighbor, Scott Rittenhouse (“Rittenhouse”), heard Nelson yelling. Rittenhouse ran to the street and tackled the second man on the ground. Courtney then kicked Rittenhouse and hit him with Nelson's purse. Unable to free the second man, Courtney got into a waiting vehicle being driven by a third person and left the scene.

Courtney was apprehended in the vehicle by police at a gas station approximately five minutes later and three miles from Nelson's home. Police recovered Nelson's cellular phone in the bathroom trashcan of the gas station, and her purses were later recovered down the street in her neighborhood. During a search of the vehicle, police recovered hooded sweatshirts, two bandanas, and a “small revolver-type handgun with an orange tip on the end of it.” The officer described it as a “cap gun” and said that it “looks like, obviously, a toy gun.”

The trial court, without a jury, found Courtney guilty of robbery and use of a firearm in the commission of a robbery. Based on the evidence showing that Nelson “had a bona fide belief that [Courtney] had a firearm” and that Courtney “threatened [Nelson] and instilled fear in [Nelson] that she might be shot if she did not cooperate,” the trial court held that the evidence was sufficient to sustain both the robbery and firearms convictions under Code §§ 18.2–58 and 18.2–53.1.

[281 Va. 366] A three-judge panel of the Court of Appeals of Virginia, in an unpublished opinion, affirmed Courtney's conviction for use of a firearm in the commission of a robbery. Courtney v. Commonwealth, Record No. 0026–09–2 (March 23, 2010). Based upon the evidence that Courtney stated he had a gun and Nelson's belief that he had one, the Court of Appeals held that the evidence was sufficient to support his conviction under Code § 18.2–53.1. Id., slip op. at 5. Courtney timely filed his notice of appeal to this Court.

II. Analysis
A. Standard of Review

On appeal, we apply a de novo standard of review when addressing a question of statutory construction. Harris v. Commonwealth, 274 Va. 409, 413, 650 S.E.2d 89, 91 (2007); Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 104, 639 S.E.2d 174, 178 (2007). Additionally, when considering

[706 S.E.2d 346]

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.”

Clark v. Commonwealth, 279 Va. 636, 640–41, 691 S.E.2d 786, 788 (2010) (citations omitted).
B. Display or Use of a Firearm in the Commission of a Felony

Courtney contends that the Court of Appeals erred in holding that the evidence was sufficient to support his conviction for use or display of a firearm in the commission of a robbery under Code § 18.2–53.1. For the reasons set forth below, we disagree.

It is important to state what this case is not about. It is not about whether a particular toy gun resembles an actual gun. Nelson did not see the object used by Courtney; consequently, the question of resemblance is irrelevant.

[281 Va. 367] In Powell v. Commonwealth, 268 Va. 233, 237, 602 S.E.2d 119, 121 (2004), we affirmed a conviction under Code § 18.2–53.1 despite the fact that the victims did not see a firearm and no firearm was ever recovered. Powell robbed a clothing store and “informed the employees that he had a pistol in his pocket,” and he kept his hand in his pocket during the course of the robbery. Id. at 235, 602 S.E.2d at 120. He was apprehended by police only minutes later in a taxicab, but no pistol was located. Id. Despite the fact that no pistol was seen or found, we held that the evidence showing that Powell was “fidgety,” kept his hand in his pocket, told the victims he had a pistol, and threatened to “hurt” them if they did not follow his instructions was sufficient to support his conviction. Id. We held that

evidence that no gun was found conflicts with Powell's statements and actions during the commission of the offenses. The trier of fact resolved this conflict against Powell, and in doing so, necessarily concluded that Powell had a gun. In other words, resolution of the factual conflict in this manner established beyond a reasonable doubt that Powell had a gun.

Id.

In her argument to the trial court, the Commonwealth's Attorney stated with regard to the existence of an actual firearm:

We don't know what the defendant actually had under his clothes. The police did later recover the gun that you see photographed there, which is not a real gun. However, the victim would have no way of knowing that. She didn't know if he had a gun, a real gun, a play gun, what he had under there. He could have had a real gun for all we know. He certainly had an opportunity to discard one.

The Commonwealth's Attorney additionally stated that:

Your Honor, what I'll start with is defense counsel said that no one believes that this was a real gun. We, you, defense counsel and I didn't believe that this was a real gun, but I would submit to you that the victim did. She never saw the pistol, she never saw what was recovered in this car. She knows that the defendant told her that he had a gun and that he had something under his shirt. She believed it was a real gun.

[281 Va. 368] Courtney argues that the Commonwealth conceded that an actual firearm was not used in the commission of the offense. Considering the Commonwealth's argument in context, we do not agree. Clearly, the Commonwealth conceded that an actual firearm was not recovered. Nonetheless, the Commonwealth consistently maintained that the evidence was in conflict concerning whether Courtney used an actual firearm in the commission of the robbery. The Commonwealth argued that Courtney's statement...

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32 practice notes
  • Kelley v. Commonwealth, Record No. 1063-17-4
    • United States
    • Virginia Court of Appeals of Virginia
    • January 8, 2019
    ...by the finder of fact at the trial." Synan v. Commonwealth, 67 Va. App. 173, 185, 795 S.E.2d 464 (2017) (quoting Courtney v. Commonwealth, 281 Va. 363, 366, 706 S.E.2d 344 (2011) ).We apply these well-established legal principles when considering whether the evidence was sufficient to suppo......
  • Romero v. Commonwealth, Record No. 0050-13-4
    • United States
    • Virginia Court of Appeals of Virginia
    • March 25, 2014
    ...671 S.E.2d 396, 399 (2009); Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). 6. See also Courtney v. Commonwealth, 281 Va. 363, 368, 706 S.E.2d 344, 347 (2011) ("As we have said on many occasions, '[I]f there is evidence to support the convictions, the reviewing court ......
  • Smith v. Commonwealth, Record No. 1058-16-2
    • United States
    • Virginia Court of Appeals of Virginia
    • January 16, 2018
    ...courts may not consider evidence that was expressly or implicitly rejected by the factfinder. See, e.g., Courtney v. Commonwealth, 281 Va. 363, 368, 706 S.E.2d 344, 347 (2011) ("As we have said on many occasions, ‘... the reviewing court is not permitted to substitute its own judgment, even......
  • Tizon v. Commonwealth, Record No. 1967–10–4.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 3, 2012
    ...judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.’ ” Courtney v. Commonwealth, 281 Va. 363, 368, 706 S.E.2d 344, 347 (2011) (citation omitted). 5. “As we have stated in the past, ‘[a] jury is presumed to have followed the instruction......
  • Request a trial to view additional results
31 cases
  • Kelley v. Commonwealth, Record No. 1063-17-4
    • United States
    • Virginia Court of Appeals of Virginia
    • January 8, 2019
    ...by the finder of fact at the trial." Synan v. Commonwealth, 67 Va. App. 173, 185, 795 S.E.2d 464 (2017) (quoting Courtney v. Commonwealth, 281 Va. 363, 366, 706 S.E.2d 344 (2011) ).We apply these well-established legal principles when considering whether the evidence was sufficient to suppo......
  • Romero v. Commonwealth, Record No. 0050-13-4
    • United States
    • Virginia Court of Appeals of Virginia
    • March 25, 2014
    ...671 S.E.2d 396, 399 (2009); Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008). 6. See also Courtney v. Commonwealth, 281 Va. 363, 368, 706 S.E.2d 344, 347 (2011) ("As we have said on many occasions, '[I]f there is evidence to support the convictions, the reviewing court ......
  • Smith v. Commonwealth, Record No. 1058-16-2
    • United States
    • Virginia Court of Appeals of Virginia
    • January 16, 2018
    ...courts may not consider evidence that was expressly or implicitly rejected by the factfinder. See, e.g., Courtney v. Commonwealth, 281 Va. 363, 368, 706 S.E.2d 344, 347 (2011) ("As we have said on many occasions, ‘... the reviewing court is not permitted to substitute its own judgment, even......
  • Tizon v. Commonwealth, Record No. 1967–10–4.
    • United States
    • Virginia Court of Appeals of Virginia
    • April 3, 2012
    ...judgment, even if its opinion might differ from the conclusions reached by the finder of fact at the trial.’ ” Courtney v. Commonwealth, 281 Va. 363, 368, 706 S.E.2d 344, 347 (2011) (citation omitted). 5. “As we have stated in the past, ‘[a] jury is presumed to have followed the instruction......
  • Request a trial to view additional results

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