                   COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Benton
          and Senior Judge Duff
Argued at Alexandria, Virginia


VICTOR CASTILLO
                                           MEMORANDUM OPINION * BY
v.   Record No. 0090-99-4                   JUDGE CHARLES H. DUFF
                                              FEBRUARY 22, 2000
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
                    Jonathan C. Thacher, Judge

           Jennifer A. Hess Smith, Assistant Public
           Defender, for appellant.

           Virginia B. Theisen, Assistant Attorney
           General (Mark L. Earley, Attorney General, on
           brief), for appellee.


     Victor Castillo entered an Alford plea to one count of

robbery, and a jury convicted him of use of a firearm in the

commission of robbery in violation of Code § 18.2-53.1.    On

appeal, appellant contends that (1) the evidence was insufficient

to support the conviction and (2) the trial court erred in

granting a jury instruction stating that it was unnecessary that

the object used to threaten or intimidate a robbery victim be

proven to be a firearm.    We agree that the trial court erred in

granting this instruction, and thus reverse the conviction.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
                              BACKGROUND

     Appellant entered Thelma Feighery's store and asked for

cigarettes.   Feighery testified that appellant pointed a gun at

her and said, "Money."    Feighery opened the cash register, and

appellant took approximately $400.      Customers entered the store,

and appellant fled.   Approximately one hour later, the police

apprehended appellant, but he did not have a gun.

                         THE JURY INSTRUCTIONS

     After entering his Alford plea to the robbery charge,

appellant was tried by a jury on the charge of using a firearm in

the commission of robbery.    The trial court granted Instruction 3,

which stated in pertinent part:

          [T]he defendant is charged with the crime of
          displaying a pistol or firearm in a
          threatening manner while committing or
          attempting to commit a robbery. The
          Commonwealth must prove beyond a reasonable
          doubt each of the following elements of that
          crime: (1) That the defendant displayed a
          pistol or other firearm in a threatening
          manner; and (2) That the display was while
          committing or attempting to commit a
          robbery.

     Over appellant's objection, the trial court granted

Instruction 6, which stated in pertinent part, "where a victim

reasonably perceives a threat or intimidation by a firearm, it is

not necessary that the object in question was in fact a firearm."

     "[T]o 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

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the firearm or displayed the firearm in a threatening manner

while committing or attempting to commit robbery . . . .'"

Sprouse v. Commonwealth, 19 Va. App. 548, 551, 453 S.E.2d 303,

305 (1995) (quoting Yarborough v. Commonwealth, 247 Va. 215,

218, 441 S.E.2d 342, 344 (1994)).

     Instruction 6 contradicted Instruction 3 and lessened the

Commonwealth's burden of proving that the object used was in

fact a firearm.    The trial court erred in overruling appellant's

objection to Instruction 6.

     Harmless error analysis is appropriate in the context of

improper jury instructions.     See Kil v. Commonwealth, 12 Va.

App. 802, 812, 407 S.E.2d 674, 679-80 (1991) (citations

omitted).     Jury instructions "should inform the jury as to the

law of the case applicable to the facts in such a manner that

[the jury] may not be misled."     Cooper v. Commonwealth, 2 Va.

App. 497, 500, 345 S.E.2d 775, 777 (1986).

     When the trial court gave Instruction 6, it relieved the

Commonwealth of proving beyond a reasonable doubt that appellant

possessed the firearm, a necessary element of the crime.    Upon

review of the record, we cannot say that such error was

harmless. 1   Accordingly, appellant's conviction for use of a




     1
       On brief the Commonwealth concedes that Instruction 6 was
not a correct instruction but argued that it was harmless. We
do not find it so under the analysis of Jones v. Commonwealth,
11 Va. App. 75, 81, 396 S.E.2d 844, 847 (1990).

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firearm in the commission of robbery in violation of Code

§ 18.2-53.1 is reversed.

     Because we reverse on the second issue presented, we do not

address the issue regarding the sufficiency of the evidence

except to say we cannot conclude that a properly instructed jury

could not have found the evidence sufficient.   For the reasons

stated above, we remand the case for further proceedings if the

Commonwealth be so advised.

                                        Reversed and remanded.




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