COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Benton 

 and Senior Judge Duff 

Argued at Alexandria, Virginia 

VICTOR CASTILLO 

 MEMORANDUM OPINION* BY 

v. Record No. 0090-99-4 JUDGE CHARLES H. DUFF 

 FEBRUARY 22, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jonathan C. Thacher, Judge 

 Jennifer A. Hess Smith, Assistant Public 

Defender, for appellant. 

 Virginia B. Theisen, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Victor Castillo entered an Alford plea to one count of 

robbery, and a jury convicted him of use of a firearm in the 

commission of robbery in violation of Code § 18.2-53.1. On 

appeal, appellant contends that (1) the evidence was insufficient 

to support the conviction and (2) the trial court erred in 

granting a jury instruction stating that it was unnecessary that 

the object used to threaten or intimidate a robbery victim be 

proven to be a firearm. We agree that the trial court erred in 

granting this instruction, and thus reverse the conviction. 

 

* Pursuant to Code § 17.1-413, recodifying Code 

§ 17-116.010, this opinion is not designated for publication.
BACKGROUND 

 Appellant entered Thelma Feighery's store and asked for 

cigarettes. Feighery testified that appellant pointed a gun at 

her and said, "Money." Feighery opened the cash register, and 

appellant took approximately $400. Customers entered the store, 

and appellant fled. Approximately one hour later, the police 

apprehended appellant, but he did not have a gun. 

THE JURY INSTRUCTIONS 

 After entering his Alford plea to the robbery charge, 

appellant was tried by a jury on the charge of using a firearm in 

the commission of robbery. The trial court granted 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 trial court granted 

Instruction 6, which stated in pertinent part, "where a victim 

reasonably perceives a threat or intimidation by a firearm, 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 

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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). 

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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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