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."