The circuit court improperly instructed the defendant’s criminal jury as to the definition of a firearm, so her convictions for use of a firearm during a felony are reversed.
To obtain a conviction for violating Code § 18.2-53.1 the Commonwealth must prove by direct or circumstantial evidence that the defendant possessed either (1) an actual firearm defined as an instrument designed, made, and intended to expel a projectile by means of an explosion, regardless of operability, or (2) an object that gave the appearance of being an actual firearm. Here, the circuit court failed to instruct the jury that possession is a necessary element of the offense.
However, because the defendant’s convictions were supported by sufficient evidence, a new trial is necessary.
Reversed and remanded.