The Supreme Court of Virginia is taking aim at the issue of whether a robber can be convicted of use of a firearm without evidence of a real gun.
In March, the Court of Appeals overruled a 1995 decision holding that an object the victim reasonably believed to be a firearm could never constitute a firearm under the criminal code unless it was, in fact, a firearm. Convictions were affirmed in cases where the defendants used, respectively, a toy gun and a non-working “John Wayne Replica” .45 caliber handgun. In both cases, victims believed the defendants had guns. The full court, with Judge Larry Elder dissenting, invoked the purposes of the firearm statute in preventing actual harm and in discouraging criminal conduct that creates fear of harm.
This month, the Supreme Court granted appeals in those two cases.
The statute itself proscribes the use of “any pistol, shotgun, rifle, or other firearm,” without further definition.
By Peter Vieth