739 S.E.2d 280
Va. Ct. App.2013Background
- Smith convicted by jury of burglary under Code §18.2-90 and using a firearm in burglary under §18.2-53.1.
- Appellant argues burglary completed before gun use/display and evidence fails to prove firearm use.
- Court relies on statutory text: burglary elements; firearm-use statute defines use or display.
- Victim Bundrick heard knocking, saw masked men enter, appellant held firearm at her head after entry.
- Court distinguishes Rowland and holds evidence supports firearm-use during burglary; conviction affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is firearm use during burglary proven if burglary completed before gun use? | Smith argues burglary completed before gun use. | Commonwealth argues gun used during entry to commit burglary. | Yes; evidence supports firearm use during burglary. |
Key Cases Cited
- Rowland v. Commonwealth, 281 Va. 396, 707 S.E.2d 331 (2011) (gun use can accompany burglary before entry is complete)
- Rushing v. Commonwealth, 284 Va. 270, 726 S.E.2d 333 (2012) (applies Rowland to corroborate timing of entry and gun use)
- Cromite v. Commonwealth, 3 Va. App. 64, 348 S.E.2d 38 (1986) (defines display of firearm for purposes of §18.2-53.1)