Randell Louis Kinlaw v. Commonwealth of Virginia, 0761161

On Nov. 17, 2014, Randell Kinlaw entered a tanning salon, gave the attendant (Stephanie Lasley) a note stating words to the effect “I have a gun. I don’t want to hurt you. Give me the money,” and demanded cash from the register.
He ordered her to keep her hands where he could see them, directed her into a tanning room, photographed her driver’s license, took her debit card, and told her to lie to police and that he knew where she lived.
The victim, frightened, complied and later identified Kinlaw in a photographic lineup. Her demeanor showed fear both during the incident and at identification.
Kinlaw was tried and convicted of robbery and of using a firearm in the commission of a felony under Va. Code § 18.2-53.1; the trial court found the note and surrounding circumstances uncontradicted and sufficient proof of firearm use.
Kinlaw appealed, arguing the evidence was insufficient to prove he actually possessed or used a firearm because no gun was seen and the victim did not expressly testify she believed he had one.
The Court of Appeals reviewed the sufficiency of the circumstantial evidence and affirmed the firearm conviction, concluding the totality of circumstances supported that Kinlaw possessed and used a firearm during the robbery.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence was sufficient to prove use/possession of a firearm under Va. Code § 18.2-53.1	Commonwealth: note, verbal threats, conduct, victim fear, clothing permitting concealment, and opportunity to discard a weapon support possession and use	Kinlaw: passing a note alone and absence of a seen gun or explicit victim testimony of belief is insufficient to prove actual possession	Affirmed: circumstantial evidence (note, threats, conduct, victim fear, concealment and time to discard) sufficed to prove use/possession beyond a reasonable doubt

Powell v. Commonwealth, 268 Va. 233 (2004) (defendant’s statement during crime that he had a gun can support conviction despite no gun found at arrest)
Yarborough v. Commonwealth, 247 Va. 215 (1994) (possession of a firearm is an essential element of § 18.2-53.1; victim’s mere perception insufficient absent proof)
Elmore v. Commonwealth, 22 Va. App. 424 (1996) (note and conduct implying a gun suffice to prove possession and use)
Cromite v. Commonwealth, 3 Va. App. 64 (1986) (use may be established through victim’s sensory impressions and totality of circumstances even if firearm not seen)
Courtney v. Commonwealth, 281 Va. 363 (2011) (appellate review standard on sufficiency; trier of fact resolves competing inferences)