Shotgun photo illustrates Court of Appeals opinion

By Peter Vieth, Virginia Lawyers Weekly Blog – 8/8/2012

If a picture truly is worth a thousand words, the Court of Appeals of Virginia has saved some space in a new opinion.

For what appears to be only the second time, the court printed a photograph of a weapon as a part of a published opinion to help readers understand distinctions about the weapon’s character.

In the opinion released Tuesday in the case of Person v. Com., the weapon in question is a sawed-off shotgun, pictured in a footnote “for illustrative purposes.” In the 2009 opinion in McMillan v. Com., a dissenting opinion included a photograph of a knife to bolster the argument that the knife was much like a dagger, intended for stabbing.

Person was convicted of taking part in a botched robbery of a late night poker game in Surry County in 2010. The robbery went awry when one of the intended victims shot and killed one of the would-be robbers.

Among other charges, Person was convicted of using the purported sawed-off shotgun in the robbery. On appeal, Person claimed the evidence was insufficient to meet the statutory definition of sawed-off shotgun, which excludes guns of less than .225 caliber.

The trial judge said the caliber could not be determined because the barrel was missing.

The three-judge Court of Appeals panel declined to require proof of the gun’s caliber. Writing for the court, Judge Rossie D. Alston Jr. said the jury examined the weapon and using “their reason, common sense, knowledge, and experience,” concluded it met the standard for a sawed-off shotgun.

The photograph presumably bolsters the case for determining the weapon is a sawed-off shotgun without reference to particulars about the bore diameter.

Appellate lawyer L. Steven Emmert of Virginia Beach noted Virginia’s appellate courts have illustrated opinions from time to time with surveys and plats in real estate matters. The Person opinion appears to be only the second to include actual photographs.