COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Benton
and Senior Judge Duff
Argued at Alexandria, Virginia
VICTOR CASTILLO
MEMORANDUM OPINION * BY
v. Record No. 0090-99-4 JUDGE CHARLES H. DUFF
FEBRUARY 22, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher, Judge
Jennifer A. Hess Smith, Assistant Public
Defender, for appellant.
Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Victor Castillo entered an Alford plea to one count of
robbery, and a jury convicted him of use of a firearm in the
commission of robbery in violation of Code § 18.2-53.1. On
appeal, appellant contends that (1) the evidence was insufficient
to support the conviction and (2) the trial court erred in
granting a jury instruction stating that it was unnecessary that
the object used to threaten or intimidate a robbery victim be
proven to be a firearm. We agree that the trial court erred in
granting this instruction, and thus reverse the conviction.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
BACKGROUND
Appellant entered Thelma Feighery's store and asked for
cigarettes. Feighery testified that appellant pointed a gun at
her and said, "Money." Feighery opened the cash register, and
appellant took approximately $400. Customers entered the store,
and appellant fled. Approximately one hour later, the police
apprehended appellant, but he did not have a gun.
THE JURY INSTRUCTIONS
After entering his Alford plea to the robbery charge,
appellant was tried by a jury on the charge of using a firearm in
the commission of robbery. The trial court granted Instruction 3,
which stated in pertinent part:
[T]he defendant is charged with the crime of
displaying a pistol or firearm in a
threatening manner while committing or
attempting to commit a robbery. The
Commonwealth must prove beyond a reasonable
doubt each of the following elements of that
crime: (1) That the defendant displayed a
pistol or other firearm in a threatening
manner; and (2) That the display was while
committing or attempting to commit a
robbery.
Over appellant's objection, the trial court granted
Instruction 6, which stated in pertinent part, "where a victim
reasonably perceives a threat or intimidation by a firearm, it is
not necessary that the object in question was in fact a firearm."
"[T]o convict an accused of violating Code § 18.2-53.1,
'the Commonwealth must prove that the accused actually had a
firearm in his possession and that he used or attempted to use
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the firearm or displayed the firearm in a threatening manner
while committing or attempting to commit robbery . . . .'"
Sprouse v. Commonwealth, 19 Va. App. 548, 551, 453 S.E.2d 303,
305 (1995) (quoting Yarborough v. Commonwealth, 247 Va. 215,
218, 441 S.E.2d 342, 344 (1994)).
Instruction 6 contradicted Instruction 3 and lessened the
Commonwealth's burden of proving that the object used was in
fact a firearm. The trial court erred in overruling appellant's
objection to Instruction 6.
Harmless error analysis is appropriate in the context of
improper jury instructions. See Kil v. Commonwealth, 12 Va.
App. 802, 812, 407 S.E.2d 674, 679-80 (1991) (citations
omitted). Jury instructions "should inform the jury as to the
law of the case applicable to the facts in such a manner that
[the jury] may not be misled." Cooper v. Commonwealth, 2 Va.
App. 497, 500, 345 S.E.2d 775, 777 (1986).
When the trial court gave Instruction 6, it relieved the
Commonwealth of proving beyond a reasonable doubt that appellant
possessed the firearm, a necessary element of the crime. Upon
review of the record, we cannot say that such error was
harmless. 1 Accordingly, appellant's conviction for use of a
1
On brief the Commonwealth concedes that Instruction 6 was
not a correct instruction but argued that it was harmless. We
do not find it so under the analysis of Jones v. Commonwealth,
11 Va. App. 75, 81, 396 S.E.2d 844, 847 (1990).
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firearm in the commission of robbery in violation of Code
§ 18.2-53.1 is reversed.
Because we reverse on the second issue presented, we do not
address the issue regarding the sufficiency of the evidence
except to say we cannot conclude that a properly instructed jury
could not have found the evidence sufficient. For the reasons
stated above, we remand the case for further proceedings if the
Commonwealth be so advised.
Reversed and remanded.
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Victor Castillo v. Commonwealth of Virginia
Combined Opinion