Virginia Lawyers Weekly VA Lawyers Weekly
Where appellant presented a note to a store clerk “demanding money or her life[,]”and then put her hand in her pocket, there was sufficient evidence for a jury to find that the bulge in the robber’s pocket was a gun.
Appellant’s conviction for using a firearm during the commission of a robbery is affirmed.
Robbery
Linda Daugherty was working as a cashier when appellant Barney approached the counter “with a box of candy and a handwritten note that stated: ‘[T]his is a robbery, stay calm, [and] don’t make a sound if you want to live.’”
Daugherty thought the note was shopping list and “initially ignored it[.]” … This prompted Barney to say, “‘Give me the money.’”
Daugherty testified that when she saw the note, she believed Barney had a gun in her pocket. She gave Barney money, which Barney held in her left hand as she left the store. She never removed her right hand from her pocket.
In the trial court
At trial, the court gave Virginia Model Jury Instruction No.7, which defines “firearm” as “‘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 model instruction thus included not only real firearms but also replicas appearing to be real firearms.”
Defense counsel agreed with this instruction but wanted 10 others, including one that stated “‘The defendant’s fingers or hands are not considered a firearm.’ … [T]he prosecutor assured the court that he was ‘not going to say that a finger can be a gun’ to the jury during closing argument. … The court thereafter refused all of Barney’s 10 additional instructions. …
“[T]he prosecutor in closing argument simply summarized the cashier’s testimony and argued that circumstantial evidence had proven that Barney had used a firearm during the robbery.
“In his closing argument, Barney’s counsel asserted that there was no firearm of any kind in Barney’s pocket. She had merely put ‘her hands in the shape of a gun.’”
Barney’s counsel “ultimately argued, Barney ‘didn’t have a gun.’ …. Nor did she have ‘an object that gives the appearance of a firearm’ because ‘[w]hat we are talking about with that’ is ‘BB guns, … replica guns, fake guns that are convincing.’ …
“Instead of possessing any of those objects, counsel concluded, Barney merely had ‘a finger’ in her pocket, and ‘a finger is not an object that gives the appearance of a gun.’”
In rebuttal, the prosecutor said the only reason Barney kept her right hand in her pocket while leaving the store “‘is because inside that pocket was not just her hand, it was an object that had the appearance of an actual handgun that could fire a shot.’ … (emphases added).
Barney appealed a unanimous guilty verdict. The Court of Appeals reversed. “Addressing the definitional instruction, the majority opinion stated that it was ‘ambiguous’ because a ‘reasonable jury may have’ thought that a finger in a pocket fit within the instruction’s definition of firearm.”
Jury instructions
“On further appeal to us, the Commonwealth argues that the Court of Appeals erred when it held that the trial court abused its discretion by not granting at least one of Barney’s ten supplemental jury instructions.
“The Commonwealth also contends that the Court of Appeals erred in holding that no rational juror could have concluded that Barney had a firearm (as opposed to merely her finger) in her pocket during the robbery. We agree with the Commonwealth on both points. …
“‘Whether to give or deny jury instructions “rest[s] in the sound discretion of the trial court.”’ …
“As framed by the closing arguments at trial, the only contested issue was a purely factual one: While threatening to murder Daugherty during a robbery, did Barney point a firearm or a finger at her? The Commonwealth said it was a firearm, not a finger. Barney said it was a finger, not a firearm. No one said it could have been a finger and a firearm at the same time.
“Given the decisional boundaries of this case, the trial judge did not abuse his discretion by refusing additional instructions addressing a point that the jury was not asked to decide. … The Court of Appeals majority erred by concluding otherwise.”
Sufficient evidence
“We hold that the jury in Barney’s case acted rationally by finding her guilty of using a firearm while robbing Daugherty. … [T]he circumstantial evidence in Barney’s case was legally sufficient to support her conviction.”
Barney threatened to kill Daugherty “while ‘pointing what [Daugherty] believed to be a weapon in [her] direction.’ … The bulge in Barney’s pocket did not look like a finger. Daugherty was ‘scared out of [her] mind,’ … because she thought she was being robbed at ‘gunpoint[.]’” …
“No evidence suggested that the threatened murder weapon in Barney’s pocket was a weapon other than a ‘firearm’ as defined by Code § 18.2-53.1. Given the evidence in the case, Barney’s counsel correctly reasoned that the only issue the jury needed to decide was whether the bulge in Barney’s pocket was a finger or a ‘really small’ handgun. …
“The surveillance video does not discredit Daugherty’s testimony about what she saw when face to face with Barney during the robbery. To the contrary, though inconclusive by itself, the video can be fairly interpreted to corroborate Daugherty’s testimony that the bulge in Barney’s pocket looked like a concealed handgun. …
“Finally, as was true in [Powell v. Commonwealth, 268 Va. 233, 235 (2004)] but not in Yarborough v. Commonwealth, [247 Va. 215, 216-17 (1994)], Barney was not apprehended soon after the robbery with a cold beer or any other object in her pocket that could have explained what the victim in Yarborough may have seen and mistakenly thought to be a firearm. …
Given these circumstances, a rational jury could find that Barney threatened to kill Daugherty during the robbery and used a concealed firearm as the threatened murder weapon.
Reversed and final judgment.
Commonwealth v. Barney, Record No. 21116; (Kelsey; Mann dissenting, joined by Goodwyn and Mimms) March 16, 2023. From the Court of Appeals of Virginia. Virginia B. Theisen, Senior Assistant Attorney General (Jason S. Miyares, Attorney General of Virginia, on briefs), for appellant. Anthony J. Balady Jr., Senior Assistant Public Defender, on brief, for appellee. VLW 023-6-005, 29 pp.
