Kimberly Paul Barney v. Commonwealth of Virginia, 822 S.E.2d 368

Kimberly Barney committed robberies at two different Walgreens stores on consecutive days; she pleaded guilty to the underlying robberies but was tried for two counts of using a firearm in the commission of a felony.
In the first robbery Barney handed a note demanding money and made a poking motion with her hand in her pocket; the clerk perceived an imprint resembling a gun barrel but did not see an actual weapon.
In the second robbery Barney told the clerk she had “two guns” and threatened to shoot if the clerk was slow; she kept her hand in her pocket and pointed toward the clerk; no weapon was seen.
Police recovered no weapon; Barney admitted she led clerks to believe she had a gun but denied actually possessing one at trial.
At trial the court refused defense Model Jury Instruction 18.702 (defining firearm as an actual firearm or an object that appears to be one) and instead gave the Commonwealth’s instruction that victim perception of a firearm sufficed; the jury convicted Barney on both firearm counts and imposed sentences.
On appeal the Court of Appeals held the jury instruction was legally erroneous (required proof of actual or replica firearm), reversed the convictions, but found the evidence nonetheless sufficient to permit retrial and remanded for a new trial if the Commonwealth chooses to proceed.

Issue	Barney's Argument	Commonwealth's Argument	Held
Whether the jury instruction properly defined "firearm" for Code § 18.2-53.1	Trial court should give Model Instruction 18.702: a firearm is either an instrument capable of expelling a projectile or an object that gives the appearance of being one	Victim's reasonable perception that the defendant threatened with a firearm is sufficient; no need to prove the object was actually a firearm	Reversed: instruction was erroneous. Conviction requires proof of an actual firearm or an object that gives the appearance of one (direct or circumstantial proof).
Whether the evidence was sufficient to convict absent an actual recovered weapon	Insufficient—no gun found and defendant denied possession	Sufficient—threats, statements, and gestures (hand in pocket, poking motion, statements admitting guns) allowed a rational trier of fact to infer possession	Held sufficient: evidence could support conviction, so retrial does not violate double jeopardy.

Holloman v. Commonwealth, 221 Va. 196 (1980) (objects that give the appearance of a firearm can support conviction in robbery contexts)
Yarborough v. Commonwealth, 247 Va. 215 (1994) (conviction under § 18.2-53.1 requires proof the defendant actually possessed a firearm)
Powell v. Commonwealth, 268 Va. 233 (2004) (statements and conduct—hand in pocket, threats—can suffice to prove actual possession despite no weapon recovered)
Startin v. Commonwealth, 281 Va. 374 (2011) (term "firearm" includes actual firearms and objects that give the appearance of one; broad construction)
Courtney v. Commonwealth, 281 Va. 363 (2011) (defendant's statements that he had a gun can support inference of an actual gun despite later discovery of a toy)
Jordan v. Commonwealth, 286 Va. 153 (2013) (direct testimony describing a weapon plus pointing conduct can establish an actual firearm)