Barney v. Commonwealth

• Decision Date: 03 November 2021
• Docket Number: Record No. 1057-20-1
• Parties: Kimberly Paul BARNEY v. COMMONWEALTH of Virginia
• Court: Virginia Court of Appeals

73 Va.App. 599

863 S.E.2d 877

Kimberly Paul BARNEY

v.COMMONWEALTH of Virginia

Record No. 1057-20-1

Court of Appeals of Virginia.

NOVEMBER 3, 2021

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

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

Present: Judges Huff, Ortiz and Lorish

OPINION BY JUDGE GLEN A. HUFF

This Court previously reversed Kimberly Paul Barney's two prior convictions for use of a firearm in the commission of a felony due to jury instructions that improperly stated the law. Barney v. Commonwealth (Barney I), 69 Va. App. 604, 616, 822 S.E.2d 368 (2019). After another trial on remand, Barney ("appellant") was convicted of one count of the same offense, in violation of Code § 18.2-53.1. She now appeals that conviction, challenging the trial court's refusal of her proposed supplemental instructions and the sufficiency of the Commonwealth's evidence to prove her guilt. This Court agrees on both counts and therefore reverses appellant's conviction and dismisses the indictment against her.

I. BACKGROUND

On December 25, 2015, appellant walked into a Walgreens store in the City of Hampton. She placed a piece of merchandise, a box of candy, on the counter and put a note on top of it. Appellant then placed her hand in her sweatshirt pocket. Upon doing so, a bulge protruded from her pocket, pointing toward the cashier, Linda Daugherty.

At first, Daugherty did not read the note, mistaking it for a shopping list, and rang up the candy. Appellant told Daugherty to give her the money from the cash register, at which point Daugherty noticed the note. In Daugherty's words, the note explained: "[T]his is a robbery, stay calm, [and] don't make a sound if you want to live." Based on the appearance of the bulge, Daugherty believed appellant held a gun in her pocket and feared if she did not move quickly appellant would shoot her. At no point, however, did Daugherty see a firearm.

To open the cash drawer and comply with appellant's demand, Daugherty had to reinitiate the transaction through the cash register. Throughout the incident, appellant kept her hand in her pocket. As she did so, the bulge's shape shifted. Once Daugherty opened the cash drawer and handed the bills to appellant, appellant left the store. Daugherty notified the store manager of the robbery and contacted police. Security cameras captured the entire incident. Police apprehended appellant after she robbed a second store the next day, December 26.¹ No gun was ever recovered.

Appellant pleaded guilty to two counts of robbery for the December 25 and December 26 robberies. She was then tried on additional counts of use of a firearm in both robberies and was convicted on both counts. On appeal, this Court reversed those convictions, holding that the jury instructions improperly directed the jury that it need not find that she actually used a "firearm" to convict. Barney I, 69 Va. App. at 614, 822 S.E.2d 368.

On remand, the trial court held a second trial. During that trial, the court granted appellant's motion to strike the evidence related to the December 26 firearm charge. The jury could not agree to a verdict on the December 25 firearm charge—the charge at issue here—so the trial court declared a mistrial.

At appellant's third trial, this time for only the December 25 firearm charge, appellant filed a motion to strike the evidence, asserting the evidence did not show that she had a "firearm." The trial court denied her motion, holding the weighing of the evidence fell to the jury. Appellant later renewed her motion to strike at the close of evidence, which the trial court again denied.

Without objection, the trial court approved the model jury instruction for the offense, titled Jury Instruction 7 in this case, which read:

A firearm is any instrument that is capable of expelling a projectile by force or gunpowder. A firearm is also any object that is not capable of expelling a projectile by force or gunpowder 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.²

A second instruction, Jury Instruction 6, explained the elements of the crime: "The Commonwealth must prove beyond a reasonable doubt ... (1) [t]hat the defendant used a firearm and (2) [t]hat the use occurred while the defendant was committing a [r]obbery."

Defense counsel proffered ten possible supplemental jury instructions as to the definition of a "firearm" under the statute, seeking to clarify the requirement that the Commonwealth must prove appellant had a firearm or an object with the appearance of a working firearm. For example, Alternate Instruction 5 stated, "The defendant's fingers or hands are not considered a firearm," while Alternate Instruction 3 stated, "It is not sufficient to convict if you believe that the defendant used an object to make the victim believe that she had a firearm." The trial court refused the supplemental instructions after arguments from the parties, explaining it felt it stood on the "safest ground" approving only the model jury instruction in light of the previous reversal and remand from this Court.

Appellant was convicted of use of a firearm in the commission of a felony, and the court sentenced her to an active sentence of three years’ imprisonment. This appeal followed.

II. ANALYSIS

A. Supplemental Jury Instructions

1. Standard of Review

When reviewing jury instructions on appeal, it is this Court's "sole responsibility ... to see that the law has been clearly stated and that the instructions cover all issues which the evidence fairly raises."

Cooper v. Commonwealth, 277 Va. 377, 381, 673 S.E.2d 185 (2009). Although a reviewing court must respect the trial court's "broad discretion in giving or denying instructions requested"—and therefore reviews those decisions for an abuse of discretion—"a trial court abuses its discretion by failing to properly instruct the jury on the elements of an offense." Barney I, 69 Va. App. at 609, 822 S.E.2d 368 (quoting Gaines v. Commonwealth, 39 Va. App. 562, 568, 574 S.E.2d 775 (2003) (en banc )). "If the principles set forth in a proposed instruction are fully and fairly covered in other instructions that have been granted, a trial court does not abuse its discretion in refusing to grant a repetitious instruction." Fahringer v. Commonwealth, 70 Va. App. 208, 211, 827 S.E.2d 1 (2019) (quoting Joseph v. Commonwealth, 249 Va. 78, 90, 452 S.E.2d 862 (1995) ). To the extent this inquiry requires statutory interpretation, however, the Court reviews those questions de novo. Sarafin v. Commonwealth, 288 Va. 320, 325, 764 S.E.2d 71 (2014).

2. The Definition of "Firearm"

In relevant part, Code § 18.2-53.1 states, "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." In Barney I, the Court exhaustively reviewed the case law's interpretation of Code § 18.2-53.1, particularly the statute's implied meaning of the term "firearm." 69 Va. App. at 611-14, 822 S.E.2d 368.

The long line of case law elaborating on the term "firearm" in the statute demanded Barney I’s "clear conclusion": to obtain a conviction under the statute, the Commonwealth must prove "the objective fact that the instrument used was either an actual firearm or an object that gives the appearance of a firearm. " Id. at 610, 822 S.E.2d 368 (emphasis added). Stated differently, "[p]ossession of a firearm is an essential element of the statutory offense." Yarborough v. Commonwealth, 247 Va. 215, 219, 441 S.E.2d 342 (1994). "[T]he fact that [the victim] merely thought or perceived [the accused] was armed is insufficient to prove that he actually possessed a firearm." Id.

To call a bulge from appellant's pocket "an object that gives the appearance of a firearm" would strain the phrase beyond recognition. Case law limits that phrase to only objects that closely and physically resemble actual, working firearms.³ For instance, while a replica firearm counts because it "look[s] like" a working firearm, a bulge from the pocket of the accused likely created by a beer can does not. Compare Startin v. Commonwealth, 56 Va. App. 26, 40-41, 690 S.E.2d 310 (2010) (en banc ), aff'd, 281 Va. 374, 706 S.E.2d 873 (2011), with Yarborough, 247 Va. at 217-19, 441 S.E.2d 342. This interpretation effectuates the statute's dual objectives of "prevent[ing] actual physical injury or death and ... discourag[ing] criminal conduct that produces fear of physical harm," while also remaining true to its statutory language. See Startin, 56 Va. App. at 40-41, 690 S.E.2d 310 ; see also Code § 18.2-53.1 (referring only to "any pistol, shotgun, rifle, or other firearm or [a display of] such weapon"). The limitation to only objects that closely and physically resemble actual, working firearms exists for good reason. Stepping away from this solid ground could fail to provide adequate notice of what is criminal, creating due process concerns. See United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319, 2325, 204 L.Ed.2d 757 (2019) ("Vague laws contravene the ‘first essential of due process of law’ that statutes must give people ‘of common intelligence’ fair notice of what the law demands of them." (quoting Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926) )).

Although the pocket bulge may serve as circumstantial evidence that appellant had a "firearm," the Commonwealth must prove the concealed object itself was a firearm or resembled an actual, working firearm. Therefore, it is not enough for a jury to find that the accused used her finger, or that the object concealed in the pocket looked like it could be a gun. For a jury to convict the accused, it must find that the accused, in fact, used or attempted to use an actual firearm or an object so...