Barney v. Commonwealth

• Decision Date: 08 January 2019
• Docket Number: Record No. 1694-17-1
• Citation: 822 S.E.2d 368,69 Va.App. 604
• Parties: Kimberly Paul BARNEY v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

69 Va.App. 604

822 S.E.2d 368

Kimberly Paul BARNEY

v.COMMONWEALTH of Virginia

Record No. 1694-17-1

Court of Appeals of Virginia.

JANUARY 8, 2019

Anthony J. Balady, Jr., Assistant Public Defender, for appellant.

Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, Huff^* and Chafin

OPINION BY JUDGE WILLIAM G. PETTY

A jury found Kimberly Barney guilty of two counts of use of a firearm in the commission of a felony.¹ On appeal, Barney asserts that the trial court erred in refusing her proffered instruction regarding the definition of a firearm and in giving instead the instruction provided by the Commonwealth. She also asserts that the evidence of her use of a firearm was insufficient to support the convictions.² We agree that the jury was improperly instructed and reverse the convictions. However, we conclude that the evidence was sufficient for conviction, and thus we remand for a new trial.

I. BACKGROUND

This Court "review[s] the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court." Dawson v. Commonwealth, 63 Va. App. 429, 431, 758 S.E.2d 94 (2014).³ Barney robbed clerks at two Walgreens stores, one on Christmas Day and one on the day after. In the first robbery, Barney brought a piece of merchandise to the counter with a note on top of the item. The note said that the clerk should "give her the money and to put the money in a bag and to stay calm and not to make a sound if [she] wanted to live." Although the clerk did not immediately notice the note, when she saw it she believed it was a shopping list and pushed it aside. She testified that Barney made a "motion, like, she had a weapon in her pocket." Barney told the clerk to give her the money. The clerk recounted she "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." Barney was making a "poking motion of what [the clerk] thought was going to be a weapon in her pocket," and Barney's hand never left her pocket. After the clerk noticed the note and gave Barney the money from the cash register, Barney took the money and left. The clerk testified that she believed, "by the note saying for [her] to not make a sound if [she] wanted to live," that Barney "had a weapon and planned to do bodily harm." The incident was captured on surveillance video.

The following day, Barney robbed a clerk at a second, different Walgreens store. Shaking and on the phone, Barney began purchasing an item with cash. When the clerk opened the cash drawer to make change for Barney, Barney leaned over and told the clerk to give her all the money in the drawer, "now." As the clerk was getting the money from the drawer, Barney told the clerk that "she had two guns facing" the clerk, and "if [the clerk] went any slower that she was going to shoot [her]." The clerk never saw a gun, but Barney "had her hand in her pocket ... pointing toward [the clerk]." Barney took the money with her other hand and left. Like the previous robbery, the incident was captured on surveillance video.

Ten minutes 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. When questioned by detectives after she was taken into custody, Barney admitted she led the clerks to believe she had a gun in order to effectuate the robberies, but said that she did not in fact use a firearm. Barney also testified in her own defense at trial. She admitted that she committed the robberies, but denied that she ever had a gun.

The two offenses were tried together before a jury. The Commonwealth offered Jury Instruction 1. That instruction stated, "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."⁴ Barney's counsel objected to that instruction and argued that the trial court should instead give Virginia Model Jury Instruction 18.702, entitled "Definition of firearm—Use of Firearm in Felony" which states as follows:

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 by force or gun powder but gives the appearance of being able to do so. The [existence] of a firearm may be proved by circumstantial evidence, direct evidence or both.

When the trial court rejected that instruction, Barney's counsel offered an alternative instruction.⁵ That, too, was rejected. Instead the trial court gave the Commonwealth's Jury Instruction 1.⁶

In response to the trial court's ruling on the jury instructions, Barney's counsel requested he be able to argue to the jury that it could find Barney not guilty if it believed that she did not actually have "a gun or any instrument that looked like a gun under that model instruction." The trial court responded, "If you tell the jury that then I'm going to declare a mistrial." The Commonwealth's instructions were given, and the jury found Barney guilty of both firearm charges and fixed a sentence of three years on one charge and five years on the other. The trial court imposed the jury's sentence.

II. ANALYSIS

Barney asserts that the trial court erred in refusing proffered Model Jury Instruction 18.702 and giving the instruction proffered by the Commonwealth instead.

A. Standard of Review

"A reviewing 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.’ " Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717 (1988) (quoting Swisher v. Swisher, 223 Va. 499, 503, 290 S.E.2d 856 (1982) ). The trial court has "broad discretion in giving or denying instructions requested," and we review those decisions under an abuse of discretion standard. Gaines v. Commonwealth, 39 Va. App. 562, 568, 574 S.E.2d 775 (2003) (en banc ) (quoting John L. Costello, Virginia Criminal Law and Procedure § 60.6-8, 810 (2d ed. 1995) ). However, whether a proffered jury instruction accurately states the law is reviewed de novo . Sarafin v. Commonwealth, 288 Va. 320, 325, 764 S.E.2d 71 (2014). Furthermore, a trial court abuses its discretion by failing to properly instruct the jury on the elements of an offense. Id.; see also Broady v. Commonwealth, 16 Va. App. 281, 291, 429 S.E.2d 468 (1993).

B. Historical Background of What Constitutes a "Firearm"

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 ... robbery[.]" "Firearm" is not defined in the statute. However, the Supreme Court has addressed the issue on a number of occasions. A review of those cases illustrates that while the Court's path of analysis has not necessarily been direct, ultimately, 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 Supreme Court first addressed the issue in Holloman v. Commonwealth, 221 Va. 196, 269 S.E.2d 356 (1980), a case involving a BB gun that had the appearance of a .45 caliber automatic pistol. The Court noted that in a prosecution for robbery, "a sensible victim of a holdup ‘acts on appearances’ and ‘is not required to know whether the gun pointed at him is loaded or whether it shoots bullets or blanks.’ " Id. at 198, 269 S.E.2d 356 (quoting Johnson v. Commonwealth, 209 Va. 291, 296, 163 S.E.2d 570 (1968) ). Drawing an analogy to robbery, the Court affirmed the conviction concluding that under Code § 18.2-53.1, a conviction was warranted "upon proof that the defendant employed an instrument which gave the appearance of having a firing capability, whether or not the object actually had the capacity to propel a bullet by the force of gunpowder." Id. at 199, 269 S.E.2d 356.

The strength of the analogy upon which the holding of Holloman was based was, however, undermined somewhat by the Court in its next discussion of the issue. In Yarborough v. Commonwealth, 247 Va. 215, 441 S.E.2d 342 (1994), the Court concluded that an object in a pocket that was never seen, and which later turned out to be a beer can, was insufficient to support a conviction under Code § 18.2-53.1. Id. at 219, 441 S.E.2d 342. Commenting on both Cox v. Commonwealth, 218 Va. 689, 240 S.E.2d 524 (1978),⁷ and Holloman, the Court noted that "[t]hese cases do not stand for the proposition that the Commonwealth need not prove that the defendant actually possessed a firearm. Indeed, they stand for the contrary proposition...." Yarborough, 247 Va. at 218, 441 S.E.2d 342. The Court concluded that "to convict an accused of violating [Code] § 18.2-53.1, the Commonwealth must prove that the accused actually had a firearm in his possession...." Id."[T]he fact that [the victim] merely thought or perceived that Yarborough was armed [wa]s insufficient to prove that he actually possessed a firearm." Id. at 219, 441 S.E.2d 342. In a footnote, the Court recognized that this was a different burden of proof than that applied to robbery where a victim's perception was sufficient evidence of the necessary element of violence or intimidation. Id. at 219 n.1, 441 S.E.2d 342. See also Byers v. Commonwealth, 23 Va. App. 146, 150, 474 S.E.2d 852 (1996) (holding that "[p]ossession of a firearm is an essential element [under Code § 18.2-53.1 ], and the fact that a victim merely thinks or perceives that the accused was armed is insufficient to prove actual possession"); Sprouse v. Commonwealth, 19 Va. App. 548, 551-52, 453 S.E.2d 303 (1995) (while intimidation to accomplish rape or robbery may be established by the victim's...