COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpa trick, Judge Benton and Senior Judge Duff Argued at Alex andria, Virginia

VICTOR CASTILLO MEMORANDUM OPINION * BY v. Record No. 0090-99-4 JUDGE CHARLE S H. DUFF FEBRUARY 22, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF FAIRFAX COUNTY Jonathan C. Th acher, Judge Jennifer A. Hess Sm ith, Assistant Public Defender, for appellant. Virginia B. Theise n, Assistan t Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Victor Castil lo entered an Alford plea to on e count of robbery, and a jury convicted him of use of a firearm in the commission of ro bbery in violation of Co de § 18.2-53.1. On appeal, appell ant contends that (1) the evidence was insufficient to support the convic tion and (2) the tr ial court erred in granting a jury instru ction stating th at it was unne cessary that the object used to th reaten or inti midate a robber y victim be proven to be a firear m. We agree that th e trial cour t erred in granting this instru ction, and thus reve rse the co nviction.

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.BACKGROUND Appellant ente red Thelma Feighery's store and asked for cigarettes. Feighery testified that appell ant pointed a gun at her and said, "Mon ey." Feighery opened the cash register, and appellant took approxim ately $400. Customer s entered th e store, and appellant fled . Approximatel y one hour late r, the police apprehended ap pellant, but he di d not have a gun.

THE JURY INSTRUCTIONS After entering his Alford plea to the robbery charge, appellant was trie d by a jury on the charge of us ing a firearm in the commission of robbery. The trial court grante d Instruction 3, which stated in pertinent part: [T]he defendant is charged with the crime of displaying a pistol or firearm in a threatening manner while committing or attempting to commit a robbery. The Commonwealth must prove beyond a reasonable doubt each of the following elements of that crime: (1) That the defendant displayed a pistol or other firearm in a threatening manner; and (2) That the display was while committing or attempting to commit a robbery. Over appellant's objection, the tr ial court granted Instruction 6, which st ated in pertin ent part, "whe re a victim reasonably perceives a th reat or intimi dation by a fi rearm, it is not necessary that the object in question was in fact a firearm." "[T]o 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

- 2 -the firearm or displayed the firearm in a threatening manner while committing or attempting to commit robbery . . . .'" Sprouse v. Commonwealth , 19 Va. App. 548, 551, 453 S.E.2d 303, 305 (1995) (quoting Yarborough v. Commonwealth , 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994)). Instruction 6 contradicted Instruction 3 and lessened the Commonwealth's burden of proving that the object used was in fact a firearm. The trial court erred in overruling appellant's objection to Instruction 6. Harmless error analysis is appropriate in the context of improper jury instructions. See Kil v. Commonwealth , 12 Va. App. 802, 812, 407 S.E.2d 674, 679-80 (1991) (citations omitted). Jury instructions "should inform the jury as to the law of the case applicable to the facts in such a manner that [the jury] may not be misled." Cooper v. Commonwealth , 2 Va. App. 497, 500, 345 S.E.2d 775, 777 (1986). When the trial court gave Instruction 6, it relieved the Commonwealth of proving beyond a reasonable doubt that appellant possessed the firearm, a necessary element of the crime. Upon review of the record, we cannot say that such error was harmless. 1 Accordingly, appellant's conviction for use of a

1 On brief the Commonwealth concedes that Instruction 6 was not a correct instruction but argued that it was harmless. We do not find it so under the analysis of Jones v. Commonwealth , 11 Va. App. 75, 81, 396 S.E.2d 844, 847 (1990). - 3 -firearm in the commission of robbery in violation of Code § 18.2-53.1 is reversed. Because we reverse on the second issue presented, we do not address the issue regarding the sufficiency of the evidence except to say we cannot conclude that a properly instructed jury could not have found the evidence sufficient. For the reasons stated above, we remand the case for further proceedings if the Commonwealth be so advised. Reversed and remanded.

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