Judge John Wilson
Johnson, charged with unlawful sale, possession or use of an imitation pistol, moved for dismissal of the charge arguing it was facially insufficient. The complaint alleged Johnson was observed by a police officer possessing a "black power drill" tucked into his waistband. The officer claimed the drill resembled a real semi-automatic pistol as it was all black, and the barrel was not closed. Johnson argued the complaint failed to sufficiently allege possession of a toy or imitation firearm, noting the officer saw that he had a "black power drill." The court disagreed finding the factual allegations contained in the superceding information were facially sufficient. It stated the issue was a matter of fact best left to the trier of fact of whether the subject item "substantially" duplicated or could reasonably have been perceived to be an actual firearm. The court ruled the facts established an evidentiary basis for the officer to conclude the item recovered resembled an actual firearm. The court stated the reasonableness of the officer’s observations was an issue for the trier of fact, thus it was inappropriate for the court to substitute its perception of reasonableness for that of the trier of fact.