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‘Brandishing’ Not Lesser-Included Offense

Because a trial court erred in finding that brandishing is a lesser-included offense of use of a firearm in commission of a felony, the Court of Appeals reverses defendant’s conviction for that offense and vacates the judgment of conviction for brandishing.

The charge arose from an encounter defendant had with his brother.

In deciding whether two offenses are sufficiently distinguishable from one another so as to constitute two separate crimes, courts apply the test from Blockburger v. U.S. If it is possible to commit each of the offenses without also committing the other, then the two offenses are different.

Here, the trial court found the evidence was insufficient to conviction defendant for use of a firearm in the commission of a felony, primarily because the evidence failed to prove he committed the underlying felony. The court nevertheless convicted defendant under Code § 18.2-282.

A review of the elements of the two offenses suggests that brandishing under Code § 18.2-282 is not a lesser-included offense of use of a firearm under Code § 18.2-53.1. Viewed in the abstract, these Code sections each require proof of a fact the other does not. The offense of using a firearm in the commission of a felony requires proof that defendant either “used or attempted to use” a firearm, or that he displayed a firearm in a threatening manner during the commission or attempt to commit one of the felonies enumerated in the statute. In such cases, the commonwealth must prove that defendant used or threateningly displayed the firearm expressly to assist him in attempting or completing a specified underlying criminal act. Conversely, in a prosecution for the act of brandishing, the commonwealth must merely prove that defendant pointed, held or brandished a firearm in a manner that reasonably induced fear in the mind of some nearby person. The requirements of Blockburger are therefore not satisfied in this case.

Reversed and vacated.

Dezfuli v. Commonwealth (Humphreys) No. 2520-09-4, March 29, 2011; Fairfax Cir.Ct. (Smith) W. Michael Chick Jr. for appellant; Richard B. Smith, Spec. AAG, for appellee. VLW 011-7-109, 10 pp.

VLW 011-7-109

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