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19 Va. App. 535

452 S.E.2d 884

Wilson v. Commonwealth

Court of Appeals of Virginia

Decided January 17, 1995

Court of Appeals of Virginia · decided 1995-01-17

Cited by 10 later decisions — most recently November 2000

10 state decisions

Key passage — most relied on by later courts

“Code § 18.2-53.1, a penal statute, must be strictly construed against the Commonwealth and in favor of the accused .... When so construed, we think that, to 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 the firearm or displayed the firearm in a threatening manner while committing or attempting to commit robbeiy or one of the other specified felonies____ In the present case, evidence that [the defendant] “may have had” a firearm in his possession creates merely a suspicion of guilt. Possession of a firearm is an essential element of the statutory offense, and the fact that [the victim] merely thought or perceived that [the defendant] was armed is insufficient to prove that he actually possessed a firearm____Clearly, the evidence does not establish guilt beyond a reasonable doubt and exclude every reasonable hypothesis of innocence. Therefore, it is insufficient, as a matter of law, to support the firearm conviction.”

quoted by 1 later decision, including Commonwealth v. Darden

“stated that she saw [a] gun's brown handle hanging out of [the accused's] jacket pocket during the robbery.”

quoted by 1 later decision, including 22 Va. App. 424 - Elmore v. Commonwealth

Relies on Holloman v. Commonwealth · Yarborough v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 1995-01-17

View the full empirical analysis of this case →

¶1 Opinion

WILLIS, J.

¶2 On appeal from his conviction of using a firearm in the commission of a felony, Walter James Wilson contends that the evidence was insufficient. We disagree and affirm the judgment of the trial court.

¶3 On November 9, 1991, Wilson entered a store and asked the clerk for “the money.” The clerk asked him to repeat his demand. When Wilson again asked her for money, she noticed the handle of a gun protruding from his pocket. She immediately opened the drawer of the cash register and handed Wilson its contents. As soon as Wilson fled from the store, the clerk ran to an adjacent store, told the people there that she had been robbed, and called the police.

¶4 At trial, the clerk testified that she was familiar with the appearance of guns and that she saw the handle of a gun protruding from Wilson’s coat pocket. She testified that the gun was positioned “pointing forward” in Wilson’s pocket and that his left hand was in his pocket next to the gun. She stated that the sight of the gun frightened her and caused her to give Wilson the store’s money. Officer Healy testified that Wilson said that had he committed the robbery, he would have used a gun.

¶5 The trial judge instructed the jury that to prove Wilson guilty of displaying a handgun in a threatening manner while committing a felony, the Commonwealth was required to prove beyond a reasonable doubt that Wilson displayed a gun in a threatening manner while committing the robbery. The jury found Wilson guilty of robbery and of use of a firearm in the commission of a felony.

¶6 Wilson contends that the Commonwealth failed to prove that he actually possessed a gun and used it in a threatening manner. He argues that, although the victim believed she saw a gun, she actually saw only a handle protruding from his pocket. He argues that this was insufficient to prove the actual presence of a gun. He cites Yarborough v. Commonwealth, 247 Va. 215, 441 S.E.2d 342 *537 (1994), which held that mere supposition that the accused had a firearm was insufficient to prove that he actually possessed a firearm.

¶7 This case is distinguishable from Yarborough. In Yarborough the victim saw no gun but only “perceived” that the robber was armed. Unlike the victim in Yarborough, the clerk in this case actually saw the handle of a gun. She stated that she saw the gun’s brown handle hanging out of Wilson’s jacket pocket during the robbery. She stated that she knew what guns looked like and she was sure she saw the handle of a gun. She also explained that Wilson pointed the gun and that this threat caused her to give him the money. This evidence sufficiently proved Wilson’s actual possession of a firearm and his use of it in a threatening manner while committing the robbery. See Holloman v. Commonwealth, 221 Va. 196, 269 S.E.2d 356 (1980).

¶8 We affirm the judgment of the trial court.

¶9 Affirmed.

¶10 Barrow, J., and Coleman, J., concurred.

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