Faulty firearm instruction prompts reversal

In a case where a woman robbed two Walgreens and led the clerks to believe she had a gun, the commonwealth was required to prove she possessed either an actual firearm or an object that gave the appearance of one. However, the trial judge improperly instructed the jury that it was not necessary to find the object was in fact a firearm but only that the victim reasonably perceived a threat or intimidation by a firearm, which was reversible error. While the appellate court upset the conviction, it rejected defendant’s double jeopardy claims and remanded for a new trial.

Background

Kimberly Barney robbed clerks at two separate Walgreens stores. In both robberies, Barney led the store clerks to believe that she possessed a gun.

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 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 a jury instruction stating “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.” 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.” When the trial court rejected that instruction, Barney’s counsel offered an alternative instruction. That, too, was rejected. Instead the trial court gave the commonwealth’s instruction.

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.

Jury Instruction

To obtain a conviction for violating Virginia Code § 18.2-53.1 the commonwealth must prove either (1) the defendant possessed an actual firearm; that is, an instrument designed, made, and intended to expel a projectile by means of an explosion, regardless of operability or (2) that the defendant possessed an object that was not an actual firearm but that gave the appearance of being one. The commonwealth may prove either (1) or (2) by direct evidence, circumstantial evidence or both.

Here, the instructions given to the jury did not require the commonwealth to prove that Barney possessed either an actual firearm or an object that gave the appearance of an actual firearm. Instead, the trial court instructed the jury that “[w]here 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.” As noted above, “Possession of a firearm is an essential element of the statutory offense.” Therefore, the trial court erred in instructing the jury that it was not necessary that the object was in fact an actual or replica firearm so long as the victim perceived a threat or intimidation by a firearm.

Double Jeopardy

Although we reverse Barney’s convictions on the failure of the trial court to properly instruct the jury, we address her sufficiency argument in order to ensure that a retrial on remand will not violate double jeopardy principles. The court holds that because the evidence adduced at trial was sufficient to convict Barney, a remand for retrial does not violate the Constitution’s prohibition against double jeopardy. Therefore, the decision of the trial court is reversed and remanded for a new trial if the commonwealth is so inclined.

Reversed and remanded.

Barney v. Commonwealth, Record No. 1694-17-1, Jan. 8, 2019. CAV (Petty) from Hampton Cir. Ct. (Jones). Anthony J. Balady Jr. for Appellant, Virginia B. Theisen for Appellee. VLW No. 019-7-001, 12 pp.