(Posted March 16, 2023) Everybody make it through yesterday okay? No stab wounds or anything? I ask because, at least in the legal profession, March 15 has been an unlucky day for over 2,000 years. (Gaius Julius Caesar was walking to court when he was murdered.)

On the assumption that all is well in your world, let’s take a look at a brand-new opinion from the Supreme Court of Virginia.


Criminal law

There’s no doubt that a woman named Kimberly Paul Barney robbed a drug store in Hampton early in the morning on Christmas Day in 2015. Here’s how today’s opinion describes the relatively simple factual setup; the person identified as Daugherty was the drug-store cashier:

Barney presented Daugherty with a box of candy and a handwritten note that stated: “[T]his is a robbery, stay calm, [and] don’t make a sound if you want to live.” Id. at 157. Mistakenly thinking the note was a shopping list, Daugherty initially ignored it, “rang up” the candy on the cash register, and put the candy in a bag. Id. Displeased by the oversight, Barney verbally commanded: “[G]ive me the money.” Id. at 158. Daugherty then read the note.

“[W]hen I saw the note,” Daugherty testified, “I looked and it appeared to me that she had a weapon in her pocket[,] and it was pointing at me in a motion for me to notice that she had what I believed to be a weapon.” Id. She continued, “I was being robbed at what I believed to be gunpoint.” Id. at 157.

I’ll quickly add that no one was physically harmed in this encounter. Barney got a fistful of cash and left the store without taking her right hand out of her sweatshirt pocket. The matter ended appropriately, with Barney’s arrest the next day by local police. Authorities never found a firearm.

The issue in Commonwealth v. Barney isn’t the robbery; Barney pleaded guilty to that charge, and is probably receiving a substantial period of free room and board with the compliments of the Director of Corrections. The issue today is Barney’s conviction for a companion firearm charge – use of a firearm in the commission of a felony. At trial, Barney admitted the robberies, but denied that she actually had a weapon at the time.

When it comes to victims, Virginia law emphatically is not heartless; you can be convicted of robbery even when you bluff your way through it by convincing a victim that her life really is in danger. The store clerk unquestionably feared for her life. But the companion-firearm statute is different: It affirmatively requires the use of a firearm, or a replica that looks enough like a firearm. The question in this appeal is whether the prosecution proved that Barney had a gun, and not merely an extended finger, in that pocket.

Although no one ever saw a gun and Barney never claimed that she had one, a jury was satisfied and convicted her of the firearm charge. A panel of the Court of Appeals semi-unanimously reversed that conviction, holding that the evidence didn’t establish the presence of a weapon beyond a reasonable doubt. (It was semi-unanimous because one judge concurred in the result.)

That made it the Commonwealth’s turn to appeal; it sought and obtained a writ. Today a sharply divided Supreme Court reverses the CAV, reinstates the conviction, and enters final judgment.

Justice Kelsey pens the majority opinion; he’s joined by Justices Powell, McCullough, and Chafin. The majority concludes that there was enough circumstantial evidence to enable the jury to find the presence of a weapon.

In a 2004 SCV decision, the robber had stated to his victim that he possessed a gun. The Dubya-era justices found that sufficient to establish possession of the weapon. In voting to reverse Barney’s conviction, the CAV had found this factual difference critical, but today’s majority calls it “a feather-weight distinction,” continuing,

Barney threatened to kill Daugherty. Barney made this threat while pointing at Daugherty what looked like the barrel of a handgun. The murder weapon in her pocket — Barney’s words and gestures obviously implied — was a handgun, not a finger. We thus see no persuasive value in the observation that unlike in Powell, Barney’s note “mentioned nothing of a weapon, let alone a firearm.”

I noticed a few other disputed angles in today’s opinions, but in my mind, this is the key dispute. Today’s dissenters – Justice Mann, joined by the chief justice and Senior Justice Mims – see things differently:

An affirmative inculpatory statement by a defendant that he or she possesses a firearm establishes an essential element of Code § 18.2-53.1. Without such an affirmative statement, to satisfy its burden of proof, the prosecution is required to present other evidence, which is sufficient to prove beyond a reasonable doubt, that a defendant did in fact possess a firearm.

The dissent adds, “Here, the feather is mighty when weighed against silence.”

It’s been a long, long time since I handled criminal work, so I know better than to start making broad pronouncements about that area of the law. I try to stay in my lane. But today’s opinion does pique my interest in an area that emphatically is in my lane: appellate review of jury findings.

Criminal prosecutions demand the strongest burden of proof known to the law: proof beyond a reasonable doubt. In this case, that means that the prosecution had to establish the presence of a weapon, and that proof had to be so strong that any doubt about its presence would be unreasonable.

If this had been a civil case, measured by a preponderance standard, then it would be easy to shrug and say that the jury could well have concluded that the robber probably had a gun. But in a criminal case, one must conclude that the possibility that Barney used only her finger is not only improbable; it’s unreasonable.

In that context, I invite you to envision yourself trying to explain to a layman the difference between this case, in which the Supreme Court defers wholly to the jury, and the recent civil ruling in Colas v. Tyree, where the justices on January 26th simply discarded a jury’s well-supported fact finding in favor of a little-used evidentiary presumption.

I encourage you to keep this conversation hypothetical. Don’t actually try to convince a real layman, because you won’t succeed. You will instead get a puzzled look and a question like, “So does the appellate court allow the jury to find the facts, or not?” In these two decisions, the majorities – Colas was 4-3, too, with the same four justices in the majority – defer to the jury in the case with the tougher burden of proof, and intervene on the more lenient one. That’s the reverse of what I would expect.

Today’s decision is the latest in a small number of rulings in which the Supreme Court ironically splits 4-3 on the question whether reasonable people can disagree on something.