firearm violation in Virginia

2025The Commonwealth does not need to prove, however, that the firearm was “‘operable,’ ‘capable’ of being fired, or had the ‘actual capacity to do serious harm.’” Perry v. Commonwealth, 61 Va. App. 502, 513 (2013) (quoting Armstrong v. Commonwealth, 263 Va. 573, 584 (2002)). “[T]o sustain a conviction for possessing a firearm in violation of Code § 18.2-308.2, the evidence need show only that a person subject to the provisions of that statute possessed an instrument which was designed, made, and intended to expel a projectile by means of an explosion.” Id.

2024The Supreme Court has held that the term “firearm” under Code § 18.2-308.2 means “any instrument designed, made, and intended to fire or expel a projectile by means of an explosion.” Armstrong v. Commonwealth, 263 Va. 573, 583 (2002). “[T]o sustain a conviction for possessing a firearm in violation of Code § 18.2-308.2, the evidence need show only that [Jones] . . . possessed an 7 Jones does not challenge the Commonwealth’s proof of his status as a violent felon or that he constructively possessed the instrument recovered from his vehicle.

2011Shackleford v. Commonwealth, 32 Va.App. 307, 327-28 , 528 S.E.2d 123, 133 (2000) (citing Langston v. Commonwealth, 28 Va.App. 276, 286 , 504 S.E.2d 380, 385 (1998)).

2011Shackleford v. Commonwealth, 32 Va.App. 307, 327-28 , 528 S.E.2d 123, 133 (2000) (citing Langston v. Commonwealth, 28 Va.App. 276, 286 , 504 S.E.2d 380, 385 (1998)).

2011Shackleford v. Commonwealth, 32 Va.App. 307, 327-28 , 528 S.E.2d 123, 133 (2000) (citing Langston v. Commonwealth, 28 Va.App. 276, 286 , 504 S.E.2d 380, 385 (1998)).

2011Shackleford v. Commonwealth, 32 Va.App. 307, 327-28 , 528 S.E.2d 123, 133 (2000) (citing Langston v. Commonwealth, 28 Va.App. 276, 286 , 504 S.E.2d 380, 385 (1998)).

2017To convict a person of using or attempting to use a firearm in violation of Code § 18.2-53.1, “the Commonwealth must prove that ‘the accused actually had a firearm in his possession.’” Powell, 268 Va. at 236 , 602 S.E.2d at 120 (quoting Yarborough v. Commonwealth, 247 Va. 215, 218 , 441 S.E.2d 342, 344 (1994)), construed in Courtney, 281 Va. at 367-68 , 706 S.E.2d at 346-47 ; cf. Startin, 281 Va. at 379 , 706 S.E.2d at 877 (noting that the statute prohibits the use or display of an actual firearm or “an instrumentality that has the appearance of having the capability of an actual firearm”).

2017To convict a person of using or attempting to use a firearm in violation of Code § 18.2-53.1, “the Commonwealth must prove that ‘the accused actually had a firearm in his possession.’” Powell, 268 Va. at 236 , 602 S.E.2d at 120 (quoting Yarborough v. Commonwealth, 247 Va. 215, 218 , 441 S.E.2d 342, 344 (1994)), construed in Courtney, 281 Va. at 367-68 , 706 S.E.2d at 346-47 ; cf. Startin, 281 Va. at 379 , 706 S.E.2d at 877 (noting that the statute prohibits the use or display of an actual firearm or “an instrumentality that has the appearance of having the capability of an actual firearm”).

2017To convict a person of using or attempting to use a firearm in violation of Code § 18.2-53.1, “the Commonwealth must prove that ‘the accused actually had a firearm in his possession.’” Powell, 268 Va. at 236 , 602 S.E.2d at 120 (quoting Yarborough v. Commonwealth, 247 Va. 215, 218 , 441 S.E.2d 342, 344 (1994)), construed in Courtney, 281 Va. at 367-68 , 706 S.E.2d at 346-47 ; cf. Startin, 281 Va. at 379 , 706 S.E.2d at 877 (noting that the statute prohibits the use or display of an actual firearm or “an instrumentality that has the appearance of having the capability of an actual firearm”).

2017To convict a person of using or attempting to use a firearm in violation of Code § 18.2-53.1, “the Commonwealth must prove that ‘the accused actually had a firearm in his possession.’” Powell, 268 Va. at 236 , 602 S.E.2d at 120 (quoting Yarborough v. Commonwealth, 247 Va. 215, 218 , 441 S.E.2d 342, 344 (1994)), construed in Courtney, 281 Va. at 367-68 , 706 S.E.2d at 346-47 ; cf. Startin, 281 Va. at 379 , 706 S.E.2d at 877 (noting that the statute prohibits the use or display of an actual firearm or “an instrumentality that has the appearance of having the capability of an actual firearm”).

2011Consequently, we hold that the Commonwealth's evidence was sufficient to convict Startin of using a firearm in violation of Code § 18.2-53.1 upon proof that he "employed an instrument which gave the appearance of having a firing capability, whether or not the object actually had the capacity to propel a bullet by the force of gunpowder." 221 Va. at 199 , 269 S.E.2d at 358 .

2011Consequently, we hold that the Commonwealth's evidence was sufficient to convict Startin of using a firearm in violation of Code § 18.2-53.1 upon proof that he "employed an instrument which gave the appearance of having a firing capability, whether or not the object actually had the capacity to propel a bullet by the force of gunpowder." 221 Va. at 199 , 269 S.E.2d at 358 .

2017Courts look to “the totality of the circumstances, including the perpetrator’s verbal threats, the manner in which the perpetrator indicated he had a weapon, and the victim’s response to those threats.” Towler, 59 Va. App. at 295 , 718 S.E.2d at 469 ; -6- Thomas v. Commonwealth, 25 Va. App. 681, 686 , 492 S.E.2d 460, 463 (1997) (considering the victim’s “visual and nonvisual observations of the object”); see Powell, 268 Va. at 236 -37 & n.2, 602 S.E.2d at 121 & n.2 (holding that a defendant’s “statement that he had a gun . . . made in the course of committing the crime” was relevant to proving

2017Courts look to “the totality of the circumstances, including the perpetrator’s verbal threats, the manner in which the perpetrator indicated he had a weapon, and the victim’s response to those threats.” Towler, 59 Va. App. at 295 , 718 S.E.2d at 469 ; -6- Thomas v. Commonwealth, 25 Va. App. 681, 686 , 492 S.E.2d 460, 463 (1997) (considering the victim’s “visual and nonvisual observations of the object”); see Powell, 268 Va. at 236 -37 & n.2, 602 S.E.2d at 121 & n.2 (holding that a defendant’s “statement that he had a gun . . . made in the course of committing the crime” was relevant to proving

2025The court, over Gaines’s objection, issued a firearm instruction in that case stating “the two elements of the offense in separate numbered clauses;” to-wit: “(1) use of a firearm; (2) while committing murder, rape, robbery, burglary, or abduction.” Id. at 566 .

2008The firearm instruction stated in order to convict the defendant, the jury had to find he used a firearm “while committing or attempting to commit murder.” Id. at 567 , 574 S.E.2d at 777 (emphasis added).

2026See Sibron v. New York, 392 U.S. 40, 66-67 (1968) (“[D]eliberately furtive actions and flight at the approach of . . . officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest.”). -5- Furthermore, an officer may “arrest [an individual] without a warrant for an alleged misdemeanor not committed in their presence involving . . . brandishing a firearm in violation of § 18.2-282 . . . when any such arrest is based on probable

2025Actual possession is defined as the “physical occupancy or control over property.” Brown v. Commonwealth, 37 Va. App. 507, 521 (2002) (quoting Actual Possession, Black’s Law Dictionary (7th ed. 1999)).

2025This principle “requires us to ‘discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.’” Id. (quoting Kelly v. Commonwealth, 41 Va. App. 250, 254 (2003) (en banc)). 2 Newkirk was also charged with two counts of armed burglary of a bank in violation of Code § 18.2-93, robbery using a firearm in violation of Code § 18.2-58(2), two counts of possession of a firearm by a convicted violent felon in violation of Code § 18.2-308.2, and an additional c

2025Hence, under Jackson, where a defendant undertakes an action at home for a criminal purpose, their possession of a firearm in defense of the home itself is not protected under the Second Amendment as “[t]o hold the contrary would suggest that the Second - 22 - Amendment protects an individual’s right to possess a weapon for criminal purposes.” United States v. Greeno, 679 F.3d 510, 520 (6th Cir. 2012) (emphasis added) (applying Jackson, holding that a sentencing guideline enhancement for weapon possession during a drug offense was “consistent with the historical understanding of the right to k

2025See Kanter v. Barr, 919 F.3d 437, 451 (7th Cir. 2019) (Barrett, J., dissenting) (“History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns.”).

2025Larceny is “the wrongful or fraudulent taking of personal goods of some intrinsic - 12 - value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently.” Marsh v. Commonwealth, 57 Va. App. 645, 650 (2011) (quoting Carter v. Commonwealth, 280 Va. 100, 104-05 (2010)).

2025Larceny is “the wrongful or fraudulent taking of personal goods of some intrinsic - 12 - value, belonging to another, without his assent, and with the intention to deprive the owner thereof permanently.” Marsh v. Commonwealth, 57 Va. App. 645, 650 (2011) (quoting Carter v. Commonwealth, 280 Va. 100, 104-05 (2010)).

2025The Commonwealth does not need to prove, however, that the firearm was “‘operable,’ ‘capable’ of being fired, or had the ‘actual capacity to do serious harm.’” Perry v. Commonwealth, 61 Va. App. 502, 513 (2013) (quoting Armstrong v. Commonwealth, 263 Va. 573, 584 (2002)). “[T]o sustain a conviction for possessing a firearm in violation of Code § 18.2-308.2, the evidence need show only that a person subject to the provisions of that statute possessed an instrument which was designed, made, and intended to expel a projectile by means of an explosion.” Id.

2024“It is not necessary that the Commonwealth prove the instrument was ‘operable,’ ‘capable’ of being fired, or had the ‘actual capacity to do serious harm.’” Jones v. Commonwealth, 277 Va. 171, 183 (2009) (quoting Armstrong, 263 Va. at 584 ).

2022“A ‘non-fatal’ variance is one that does not undermine the integrity of the trial and, thus, does not warrant a reversal on appeal.” Purvy v. Commonwealth, 59 Va. App. 260, 266 (2011) (citing Morris v. Commonwealth, 33 Va. App. 664, 668-69 (2000)).

2022“Notice to the accused of the offense charged against him is the rockbed requirement which insures the accused a fair and impartial trial on the merits and forms the key to the fatal 2 Brown was also convicted of malicious wounding in violation of Code § 18.2-51, reckless handling of a firearm in violation of Code § 18.2-56.1, and another use of a firearm in the commission of a felony in violation of Code § 18.2-53.1. -4- variance rule.” Hairston v. Commonwealth, 2 Va. App. 211, 214 (1986).

2022“A ‘non-fatal’ variance is one that does not undermine the integrity of the trial and, thus, does not warrant a reversal on appeal.” Purvy v. Commonwealth, 59 Va. App. 260, 266 (2011) (citing Morris v. Commonwealth, 33 Va. App. 664, 668-69 (2000)).

2019See Kehoe, 893 F.3d at 238-39 (finding that a person who called 911 to report an intoxicated person with a firearm at a bar was not anonymous because he provided his first name and phone number to the police, and noting that “courts generally presume that a citizen-informant . . . who discloses his or her identity and basis of knowledge to the police is both reliable and credible”).

2017Courts look to “the totality of the circumstances, including the perpetrator’s verbal threats, the manner in which the perpetrator indicated he had a weapon, and the victim’s response to those threats.” Towler, 59 Va. App. at 295 , 718 S.E.2d at 469 ; -6- Thomas v. Commonwealth, 25 Va. App. 681, 686 , 492 S.E.2d 460, 463 (1997) (considering the victim’s “visual and nonvisual observations of the object”); see Powell, 268 Va. at 236 -37 & n.2, 602 S.E.2d at 121 & n.2 (holding that a defendant’s “statement that he had a gun . . . made in the course of committing the crime” was relevant to proving

2017Courts look to “the totality of the circumstances, including the perpetrator’s verbal threats, the manner in which the perpetrator indicated he had a weapon, and the victim’s response to those threats.” Towler, 59 Va. App. at 295 , 718 S.E.2d at 469 ; -6- Thomas v. Commonwealth, 25 Va. App. 681, 686 , 492 S.E.2d 460, 463 (1997) (considering the victim’s “visual and nonvisual observations of the object”); see Powell, 268 Va. at 236 -37 & n.2, 602 S.E.2d at 121 & n.2 (holding that a defendant’s “statement that he had a gun . . . made in the course of committing the crime” was relevant to proving

2017To convict a person of using or attempting to use a firearm in violation of Code § 18.2-53.1, “the Commonwealth must prove that ‘the accused actually had a firearm in his possession.’” Powell, 268 Va. at 236 , 602 S.E.2d at 120 (quoting Yarborough v. Commonwealth, 247 Va. 215, 218 , 441 S.E.2d 342, 344 (1994)), construed in Courtney, 281 Va. at 367-68 , 706 S.E.2d at 346-47 ; cf. Startin, 281 Va. at 379 , 706 S.E.2d at 877 (noting that the statute prohibits the use or display of an actual firearm or “an instrumentality that has the appearance of having the capability of an actual firearm”).

2017To convict a person of using or attempting to use a firearm in violation of Code § 18.2-53.1, “the Commonwealth must prove that ‘the accused actually had a firearm in his possession.’” Powell, 268 Va. at 236 , 602 S.E.2d at 120 (quoting Yarborough v. Commonwealth, 247 Va. 215, 218 , 441 S.E.2d 342, 344 (1994)), construed in Courtney, 281 Va. at 367-68 , 706 S.E.2d at 346-47 ; cf. Startin, 281 Va. at 379 , 706 S.E.2d at 877 (noting that the statute prohibits the use or display of an actual firearm or “an instrumentality that has the appearance of having the capability of an actual firearm”).