[Posted August 28, 2012] There are several interesting aspects of today’s criminal-law opinion out of the Court of Appeals, Jordan v. Commonwealth.

The story begins implausibly, with a 13-year-old driving his father to a convenience store and waiting outside while the father goes inside. Now, I don’t know about you, but my father was not about to let me behind the wheel of a car at the age of 13. Still, those are the facts we’ve got, so we might as well work with them.

While the father is inside, the defendant approaches the driver’s window, and eventually pulled a gun and pointed it at the child. He told the boy to get out; the boy complied quickly, and the defendant took off with the vehicle. The boy was able to identify his assailant once police caught up with the defendant. The police didn’t find a gun or anything that looked like one in the search-incident.

The defendant faced charges of carjacking, eluding police, and use of a firearm in the conviction of a felony. He was convicted of all those, and they aren’t addressed in today’s opinion. The fourth charge, possession of a firearm by a convicted felon, is the heart of today’s tale.

At trial, the child gave a reasonably detailed description of the gun, explaining that he was quite familiar with guns. (That’s difference #2 between my family dynamic at age 13 and this unfortunate kid’s.) But this is one instance where the prosecutor asked one question too many:

Q: Did it look like a toy gun?

A: A really detailed toy gun if it was.

That last answer, brought out on redirect exam, is what leads to the problem here. You see, in order to be convicted of use of a firearm in the commission of a felony, prosecution has to prove only that the defendant used a gun or something that looked like one. You can instill fear in someone with a realistic but fake gun just as easily as you can with a real gun. But there’s a difference between that firearm offense and the separate one of possession by a convicted felon; in that instance, only the real thing will do. Evidently, felons can carry toy guns – as long, that is, as they don’t use them to commit crimes.

Today’s majority (Judge Humphreys, joined by Judge Frank) concludes that the victim’s description, combined with the defendant’s act of pointing the gun at the child, is enough circumstantial evidence to support the jury’s finding that the object was a real gun:

Jordan did not casually wave the instrument around in the air without purpose, but rather pointed it directly at Arrowood’s head and concurrently demanded that he part with possession of the vehicle. Even without actually saying the words, “or I will shoot you,” a reasonable fact-finder could have certainly concluded that Jordan’s words and actions implied as much and that what he pointed at Arrowood was a firearm and not a replica or a toy . . .”

Today’s dissenter, Judge Elder, argues that this tendril of additional proof effectively erases the clear boundary between these two possession offenses. He quotes a decision from the Supreme Court last year, Startin v. Commonwealth, in which the justices upheld a conviction for use of a replica weapon in the commission of a felony, but noted that the replica “would be [in]sufficient to convict a person under Code § 18.2-308.2 for possession of a firearm by a convicted felon because [it was] not ‘designed, made, and intended to fire or expel a projectile by means of an explosion.’”

We’ve now arrived at the boundary between what really is a gun and what seems to be a gun. This distinction brings to mind a case from an entirely different area of the law – eminent domain – where the Supreme Court emphasized that seeming sometimes isn’t enough. In the C and C Real Estate case a few years back, a statute authorized condemnation of property that could not be rehabilitated. The condemning authority made a factual finding that the property appeared to be incapable of being rehabbed, and the justices found that that wasn’t good enough. Appearing to be incapable isn’t the same as being incapable.

Given today’s interesting divide among the CAV panel, the justices might get another crack at that holding.