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  • Norman A. Thomas

Quest for Clarity: Elements of Proof for Use of a Firearm in the Commission of a Felony Offense

The Court of Appeals of Virginia released a soon-to-be published panel decision on January 8, 2019, in Kimberly Paul Barney v. Commonwealth of Virginia, 2019 Va. App. LEXIS 5 (January 8, 2019). Judge William G. Petty authored the Court’s opinion, joined by Judges Teresa M. Chafin and Glen A. Huff.

In Barney, the Court considered both the jury instruction given and the elements of the statutory offense, use of a firearm in the commission of a felony. See Va. Code §18.2-53.1. Regarding the elements of proof, the Court strove to analyze its own and the Virginia Supreme Court’s diverse, yet relevant precedent. It sought to establish clarity in Virginia law respecting this oft-prosecuted crime.

Kimberly Barney committed robberies of two Walgreens stores in Hampton. In the first, she placed merchandise on the checkout counter with a note demanding that the clerk put “the money” in a bag, “stay calm” and “not make a sound” if the clerk “wanted to live.” The clerk testified that Barney “made a ‘motion, like, she had a weapon in her pocket.’” The clerk “saw an imprint of what appeared to be a gun barrel or what a gun barrel will make if it was being poked through an article of clothing,” and believed that Barney had gun.

In the second robbery, committed the next day, Barney feigned purchasing an item for cash and upon the clerk’s opening the register drawer, “told the clerk to give her all of the money…’now.’” Barney threatened the clerk, stating that “she had two guns” and that if the clerk went any slower “she was going to shoot [her].” The clerk testified that although she saw no gun, Barney “had her hand in her pocket…pointing toward” the clerk.

Within moments after the second robbery, “police found Barney sitting in a parked car. Police did not find any weapons on Barney’s person or in her car.” Barney confessed to the robberies including that she “led the clerks to believe she had a gun,” but denied using a firearm to commit them.

Barney’s appeal focused not on the robberies, but on a jury’s decision to convict her for two counts of use of a firearm in their commission. The trial court refused Barney’s proffer of Virginia Model Jury Instruction 18.702, entitled “Definition of firearm – Use of Firearm in Felony,” which reads in part:

A firearm is any instrument that is capable of expelling a projectile by force or gun powder. A firearm is also an object that is not capable of expelling a projectile…but gives the appearance of being able to do so. The [existence] of a firearm may be proved by circumstantial, direct evidence or both.

The trial court gave the Commonwealth’s proffered instruction, “Where a victim reasonably perceived a threat or intimidation by a firearm, it is not necessary that the object in question was in fact a firearm.” Barney objected to this instruction and the denial of her proffered instruction.

On appeal, Barney asserted “that the trial court erred in refusing” her proffered firearm-related instruction, “and giving the instruction proffered by the Commonwealth instead.” She also argued that because insufficient evidence existed to support either firearm use conviction, the Court in remanding should not permit the Commonwealth to retry her on those charges.

The Court prefaced its legal analysis by discussing applicable standards of review. It noted that an appeals court’s “responsibility in reviewing jury instructions [is] ‘to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises.’” The abuse of discretion review standard applies to a trial court’s decision to give or deny requested instructions. Yet, “whether a proffered jury instruction accurately states the law is reviewed de novo…Furthermore, a trial court abuses its discretion by failing to properly instruct the jury on the elements of an offense.”

After quoting Va. Code §18.2-53.1’s criminalization of “use or attempt to use” a firearm “or display such weapon in a threatening manner while committing or attempting to commit…robbery,” the Court noted that, “‘Firearm’ is not defined in the statute.” It stated that the Virginia Supreme Court “has addressed the issue on a number of occasions,” and observed that a review of that precedent “illustrates what while the Court’s path of analysis has not always been direct:”

[U]ltimately, the conclusion is clear; what controls is the objective fact that the instrument used was either an actual firearm or an object that gives the appearance of a firearm, and not the victim’s subjective perception that it might have been a firearm.

The Court then reviewed several Supreme Court decisions on the proof necessary to establish a violation of Va. Code §18.2-53.1. It additionally cited Court of Appeals’ decisions in accord with that precedent. In his lengthy review, Judge Petty noted a key yet sometimes confusing distinction. On the one hand, conviction under Va. Code §18.2-53.1 requires proof of a firearm’s use or use of an instrument appearing to be a firearm, and that “a sensible victim of a holdup ‘acts on appearances[.]’” Holloman v. Commonwealth, 221 Va. 196, 198 (1980). For this proposition and the “broad construction” given to the term “firearm” under Va. Code §18.2-53.1, the Court digested or otherwise cited Johnson v. Commonwealth, 209 Va. 291, 296 (1968); Yarborough v. Commonwealth, 247 Va. 215, 218-19 (1994); Powell v. Commonwealth, 268 Va. 233, 236-37 (2004); Startin v. Commonwealth, 281 Va. 374, 377, 382 (2011); Armstrong v. Commonwealth, 263 Va. 573, 582-83 (2002); Courtney v. Commonwealth, 281 Va. 363, 368 (2011); Jordan v. Commonwealth, 286 Va. 153, 158-59 (2013); and Cox v. Commonwealth, 218 Va. 689, 690-91 (1978).

On the other hand, the Court observed that in Yarborough, 247 Va. at 219 n. 1, the Supreme Court “recognized that this was a different burden of proof than applied to robbery where a victim’s perception was sufficient evidence of the necessary element of violence or intimidation.” To exemplify this rule of law, the Court cited Sprouse v. Commonwealth, 19 Va. App. 548, 551-52 (1995); and Byers v. Commonwealth, 23 Va. App. 146, 150 (1996).

The Court then turned to the significance of circumstantial evidence in proving a violation of Va. Code §18.2-53.1. It discussed Powell, which decision upheld the evidence’s sufficiency even though “the victims never saw a gun and no gun was ever recovered…Powell’s statements that he had a pistol in his pocket and that nobody would get hurt if they didn’t move, coupled with his nervous and fidgety manner, all the while with his hand in his pocket” constituted sufficient proof. In addition, McBride v. Commonwealth, 24 Va. App. 603, 607 (1997) recognized that “circumstantial evidence, such as an assailant’s statement that he possesses a firearm, can be sufficient evidence to prove beyond a reasonable doubt that an accused indeed possessed a firearm.” The Court additionally cited Thomas v. Commonwealth, 25 Va. App. 681, 686 (1997), to provide further example of circumstantial evidence establishing violation of Va. Code §18.2-53.1.

Following its review of precedent, the Court concluded:

From these cases we conclude that to obtain a conviction for violating Code §18.2-53.1 the Commonwealth must prove either (1) the defendant possessed an actual firearm; that is, and instrument designed, made and intended to expel a projectile by means of an explosion, regardless of operability…or (2) that the defendant possessed an object that was not an actual firearm but that gave the appearance of being one…Finally, the Commonwealth may prove either (1) or (2) by direct evidence, circumstantial evidence, or both.

Based on these conclusions, the Court held that the jury instruction given in Barney’s trial “did not require the Commonwealth to prove that Barney possessed either an actual firearm or an object that gave the appearance of an actual firearm.” Instead, it incorrectly permitted to jury to convict based on whether the “victim reasonably perceived a threat or intimidation by a firearm,” without necessity “that the object in question was in fact a firearm.” The trial court thus reversibly erred.

Turning next to the sufficiency of evidence and remand, the Court stated that it must address Barney’s “sufficiency argument to ensure that a retrial on remand will not violate double jeopardy principles.” In so doing, the Court noted that “a reviewing court does not ‘ask itself whether it believes that the evidence at the trial established guilt[.]” Rather, “[w]e must ask instead whether ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’”

Utilizing this paradigm, and largely relying on Powell, the Court held that the record contained sufficient evidence to support a jury’s conviction of Barney for firearm use during the robberies. Thus, she must face a possible retrial. Indeed, “Barney’s out-of-court statement” to the clerk in the second robbery “admitted the existence of a ‘gun.’” Moreover, “the firearm offenses were tried together. The jury was therefore free to infer that because Barney said she had a gun in the second robbery, she used on in the first robbery.”

Consequently, the Court held that “the decision of the trial court is reversed and remanded for a new trial if the Commonwealth is so inclined.”


In Barney, the Court reviewed precedent to clarify that the elements of Va. Code §18.2-53.1 require proof beyond a reasonable doubt of actual firearm use or use of an “object” or “instrument” that gives appearance of a firearm. Because the Commonwealth may rely upon circumstantial evidence, a crime victim may not actually see a firearm or any object or instrument. A factfinder may rely upon the accused’s words and actions implying the presence and use of a firearm to underpin a conviction.

Nevertheless, a crime victim’s mere “perception” of a firearm will not sustain a conviction for firearm use. This is true even though a crime victim’s perception of a firearm may suffice to fulfil the “violence” or “intimidation” element of robbery.

These distinctions, as clarified in Barney, call upon both prosecutors and defense counsel to carefully craft jury instructions in trials of persons accused of violating Va. Code §18.2-53.1. Indeed, Barney may justify amendments or additions to the Virginia Model Jury Instructions for criminal cases.

True, if the trial court had not granted the Commonwealth’s request to give its non-model instruction, and had given Barney’s model instruction, she likely could not have successfully appealed her firearm use convictions. Just the same, one may rightfully question whether Barney’s proffered model instruction provided the jury optimal guidance on the elements of Va. Code §18.2-53.1.

Finally, if you were Barney’s defense counsel on remand, would you move for separate trials? Does due process require that the trial court grant such a severance motion? If granted, could evidence of the second robbery’s circumstances properly be admitted in a separate trial focused on whether Barney used a firearm in the first robbery?

I’d enjoy receiving your responses to these questions.

Norman A. Thomas

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