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What are you packing?

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

One comment

  1. Based on the Supreme Court’s own precedent, Yarborough v. Commonwealth, 247 Va. 215, 441 S.E.2d 342 (1994), I think the Supreme Court of Virginia will reverse the Court of Appeals and say (again) that the evidence has to show that the object is a firearm. The confusion arises in these cases because two distinct issues get mixed–what the evidence has to show (a real firearm) and what evidence is sufficient to make such a showing. For example, the Supreme Court of Virginia has held that circumstantial evidence based on the victim’s observations of the object may be suffcient to show that the object used during the robbery was in fact a firearm. Powell v. Commonwealth, 268 Va. 233, 602 S.E.2d 119 (2004). This is not the same as saying that, as long as the victim believes it is a firearm, then it is automatically a firearm even if the object was later determined to be a toy. The Supreme Court was simply stating that this type of evidence (victim’s observations) may be sufficient to that the object is an actual firearm. But when the object is recovered, and it is shown that the victim’s perception (however reasonable) was incorrect, then there is no violation of the statute. Ironically, in these scenarios, not recovering the crime “weapon” actually increases the likelihood of a conviction(assuming that the Supreme Court will affirm its own precedent).

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