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Thread: More clarity on what "brandishing" means

  1. #1
    Campaign Veteran skidmark's Avatar
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    April 8, 2008

    Fear is not the Same as Apprehension in Brandishing a Firearm




    "Baron testified that Huffman was intoxicated and "just going off," that is, he was "[d]oing a lot of yelling and just being loud," all while holding the gun in his hand. Baron also witnessed Huffman load the two bullets in the gun. Baron explained that Huffman was angry and complaining because she and Caruso had arrived home a day later than expected from an out-of-state trip. In addition, Huffman wanted Caruso to leave with him, but Baron would not permit Caruso to do so.


    Upon hearing a "commotion" from the direction of the driveway while working in his backyard, James went to investigate. He found Moon, Baron, Caruso, and Huffman in Moon's yard, with Huffman "raising Cain about something" and "waving a gun around." Among other things, James stated to Huffman, "why don't you put that gun down before you hurt somebody," at which time Huffman threatened to shoot James...

    Huffman contends the evidence was insufficient to prove he violated Code § 18.2-282(A) as to Moon. We disagree.

    As to the first element, Huffman does not challenge the fact that he brandished a firearm in Moon's presence, for purposes of Code § 18.2-282(A). As to the second element, however, he argues there was insufficient evidence to establish that he brandished a gun in such a manner as
    to induce fear in the mind of Moon.


    This Court has held, in connection with robbery, that "'the word "fear" . . . does not so much mean "fright" as it means "apprehension"; one too brave to be frightened may yet be apprehensive of bodily harm.'" Seaton, 42 Va. App. at 749, 595 S.E.2d at 14 (quoting 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(d), at 187-88 (2d ed. 2003)) (emphasis in original).


    In other words, "'[w]hen the pertinent test is cast in terms of a victim being put in "fear" of injury, it is not necessary that the victim be frightened; it is necessary merely that he be reasonably apprehensive of injury.'" Id. (quoting Charles E. Torcia, 4 Wharton's Criminal Law § 462, at 21 (15th ed. 1996)) (emphasis in original). The dispositive issue in this case, therefore, is whether there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Moon was reasonably apprehensive of bodily harm induced by Huffman brandishing the gun in her presence. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. It also ensures that we remain faithful to our duty not to substitute our judgment for that of the trier of fact, even were our opinion to differ.Seaton, 42 Va. App. at 747-48, 595 S.E.2d at 13 (citations and internal quotation marks omitted). In light of the totality of the circumstances, we conclude that Moon's request of Huffman to put his gun away was sufficient evidence of Moon's requisite apprehension of bodily harm."
    In other words, "'[w]hen the pertinent test is cast in terms of a victim being put in "fear" of injury, it is not necessary that the victim be frightened; it is necessary merely that he be reasonably apprehensive of injury.'"

    It looks like the Va Supreme Court is really trying to clarify how the law against brandishing should be interpreted by folks (cops & the rest of us) on the street. It is well worth your time to wade through the complete decision to understand the new way the law of the land is going to be meted out.

    For your additional legal information, the Va Supreme Court has come down hard on cops relating to searches. A quick scan of the opinions released 4/18/08http://www.courts.state.va.us/scndex.htm shows a few crooks getting away with crime because the cops screwed up, and also a few outrageous situations being corrected.

    Leo229 and some more cop-typefolks that show up here will be in class a bit longer over the next few weeks, catching up on the new ways things are going to need to be done.

    stay safe.

    skidmark
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

    "No matter how much contempt you have for the media in all this, you don't have enough"
    ----Allahpundit

  2. #2
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    skidmark wrote:
    For your additional legal information, the Va Supreme Court has come down hard on cops relating to searches. A quick scan of the opinions released 4/18/08http://www.courts.state.va.us/scndex.htm shows a few crooks getting away with crime because the cops screwed up, and also a few outrageous situations being corrected.
    Totally off-topic, but this one almost cost me a new keyboard:

    052272 Davis v. Commonwealth 09/15/2006
    The judgment of the Court of Appeals of Virginia, which denied the defendant's petition for appeal from his conviction in a bench trial for object sexual penetration pursuant to Code § 18.2-67.2(A) over his contention that the evidence was insufficient to establish the necessary element of penetration owing to the fact that the victim, a law enforcement officer, was wearing pants and underwear at the time of the contact, is affirmed.

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    Accomplished Advocate peter nap's Avatar
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    3fgburner wrote:
    skidmark wrote:
    For your additional legal information, the Va Supreme Court has come down hard on cops relating to searches. A quick scan of the opinions released 4/18/08http://www.courts.state.va.us/scndex.htm shows a few crooks getting away with crime because the cops screwed up, and also a few outrageous situations being corrected.
    Totally off-topic, but this one almost cost me a new keyboard:

    052272 Davis v. Commonwealth 09/15/2006
    The judgment of the Court of Appeals of Virginia, which denied the defendant's petition for appeal from his conviction in a bench trial for object sexual penetration pursuant to Code § 18.2-67.2(A) over his contention that the evidence was insufficient to establish the necessary element of penetration owing to the fact that the victim, a law enforcement officer, was wearing pants and underwear at the time of the contact, is affirmed.
    Uh....:shock: Was Davis open carrying, or just using a big gun?:shock::what:

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