VA Code 18.2-53.1 Interpretation

In Yarborough v. Commonwealth, 247 Va. 215, 441 S.E.2d 342 (1994), the Supreme Court held that "to 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 the firearm . . . while committing . . . robbery." Id. at 218, 441 S.E.2d at 344 In Yarborough v. Commonwealth, the Supreme Court of Virginia held that in order to obtain a conviction under "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 the firearm or displayed the firearm in a threatening manner. . . ." In reaching that conclusion, the Supreme Court found that a victim's perception that an accused is armed, without more, is insufficient to support a conviction under Code 18.2-53.1 which requires "actual possession" of a firearm as a necessary element of the offense. Id. at 219, 441 S.E.2d at 344.