Startin v. Com.

Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ.,
and Russell, Lacy, and Koontz, S.JJ. ∗

DUANE ELMER STARTIN, JR.

v. Record No. 100778 OPINION BY JUSTICE DONALD W. LEMONS
March 4, 2011
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred when it affirmed the convictions of Duane Elmer Startin,

Jr. (“Startin”) for use or display of a firearm in the

commission of a felony under Code § 18.2-53.1.

I. Facts and Proceedings Below

On January 12, 2005, Startin entered a pharmacy in

Fairfax County and stated that he needed a bottle of

Oxycontin. When the pharmacist asked him for a prescription,

Startin lifted his shirt to reveal an object that appeared to

be a black .45 caliber handgun tucked into the front waistband

of his pants. The pharmacist saw the object and hesitated.

Startin told her to “hurry up, lady,” and she handed him a

bottle containing 100 pills of Oxycodone, the generic name for

Oxycontin. Startin left the store with the bottle.

On January 21, 2005, Startin entered a different store in

Fairfax County and asked the pharmacist whether “Oxycontin 80”

∗
Justice Koontz presided and participated in the hearing
and decision of this case prior to the effective date of his
retirement on February 1, 2011; Justice Kinser was sworn in as
Chief Justice on February 1, 2011.
was in stock. After the pharmacist confirmed that this drug

was in stock, Startin removed an object that appeared to be a

black handgun from the waistband of his pants. Startin

pointed it at the clerk and demanded to the pharmacist, “give

me the medicine, give me the medicine.” The pharmacist gave

Startin a bottle containing 100 Oxycontin pills and Startin

left the store. Later, the clerk described the object as “a

black older model handgun” but could not state whether it was

a revolver or a pistol.

Startin was later arrested in Petersburg, Virginia for a

robbery charge in that jurisdiction. After being read his

Miranda rights, Startin admitted to committing the robberies

in Fairfax County and identified himself in several

photographs taken by surveillance cameras during the

robberies. Startin further stated that the weapon he used

during the robberies was a commemorative “John Wayne Replica”

.45 caliber handgun (“the replica”).

In its outward appearance, the replica has the same size,

weight and shape of an operational firearm designed to expel

.45 caliber ammunition by explosion. At trial, the

Commonwealth conceded that the replica was the object used or

displayed by Startin during the robberies. Startin pled

guilty to three counts of robbery but pled not guilty to two

counts of use of a firearm in the commission of a felony,

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arguing that the replica did not meet the definition of a

firearm under Code § 18.2-53.1. The parties stipulated that

[t]his weapon is a commemorative replica. In
its outward appearance, including size, weight,
and shape, it appears to be an operational
firearm designed to expel .45 caliber ammunition
by explosion. However, because the weapon was a
replica, the manufacturer did not include a
firing pin or other mechanical device necessary
to fire a projectile by explosion.

Based on this evidence, the trial court convicted Startin

of two counts of use of a firearm during the commission of a

felony under Code § 18.2-53.1. The trial court concluded that

this Court’s holding in Holloman v. Commonwealth, 221 Va. 196,

269 S.E.2d 356 (1980), presented the

good policy . . . . to discourage criminal
conduct that produces fear [of] physical harm.
Because the victim can be intimidated as much
by a pistol that doesn’t fire bullets [as] by
one that does.

And in a crime, a victim can’t distinguish
between a loaded pistol and one that is
designed to look precisely like one.

The trial court cited several other cases from this Court for

the proposition that the items in these cases “were held to be

firearms, because they appeared to be capable of firing.”

Accordingly, the trial court held that “the bottom line is

that . . . the item that was used was a firearm, pursuant to

Virginia Code Section 18.2-53.1.” Startin was sentenced to 10

years with six years suspended for the two robbery convictions

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and six years for the two convictions for the use or display

of a firearm in the commission of a felony.

The Court of Appeals of Virginia affirmed Startin’s two

convictions for use of a firearm during the commission of a

felony, Startin v. Commonwealth, 54 Va. App. 778, 682 S.E.2d

115 (2009), and also affirmed upon a rehearing en banc.

Startin v. Commonwealth, 56 Va. App. 26, 690 S.E.2d 310

(2010). The Court of Appeals concluded that “Startin’s

replica of a firearm was certainly capable of evoking fear of

physical harm” and therefore held that “the trial court did

not err in finding that the item Startin used was a firearm

for the purposes of Code § 18.2-53.1.” Id. at 41, 690 S.E.2d

at 317. Startin timely filed his notice of appeal to this

Court.

II. Analysis

A. Standard of Review

This Court applies a de novo standard of review when

addressing a question of statutory construction. Harris v.

Commonwealth, 274 Va. 409, 413, 650 S.E.2d 89, 91 (2007);

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96,

104, 639 S.E.2d 174, 178 (2007). Additionally, when

considering the sufficiency of the evidence to sustain a

conviction,

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 this Court reviews “the evidence in the light
most favorable to the prevailing party at trial
and consider[s] all inferences fairly deducible
from that evidence.” This Court will only
reverse the judgment of the trial court if the
judgment “ ‘is plainly wrong or without
evidence to support it.’ ” “If there is
evidence to support the convictions, the
reviewing court is not permitted to substitute
its own judgment, even if its opinion might
differ from the conclusions reached by the
finder of fact at the trial.”

Clark v. Commonwealth, 279 Va. 636, 640-41, 691 S.E.2d 786,

788 (2010) (citations omitted).

B. Display or Use of a Firearm
in the Commission of a Felony

Startin argues that the Court of Appeals erred in holding

that the evidence of his use of the replica in committing the

robberies was sufficient to support his conviction under Code

§ 18.2-53.1. For the reasons set forth below, we disagree.

Under Code § 18.2-53.1, it is “unlawful for any person to

use or attempt to use any pistol, shotgun, rifle, or other

firearm or display such weapon in a threatening manner while

committing or attempting to commit . . . robbery.” We have

held that in order to convict a person under this statute,

the Commonwealth must prove that the accused
actually had a firearm in his possession and
that he used or attempted to use the firearm or
displayed the firearm in a threatening manner
while committing or attempting to commit robbery
or one of the other specified felonies.

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Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342,

344 (1994).

In Holloman, we explained that Code § 18.2-53.1 has dual

objectives. 221 Va. at 198, 269 S.E.2d at 358. First, the

statute criminalizes the use or display of an actual firearm

that has the capability of expelling a projectile by

explosion, including “any pistol, shotgun, rifle, or other

firearm.” Code § 18.2-53.1. Second, the statute also has the

additional purpose of preventing fear of physical harm by the

use or threatening display of an instrumentality that has the

appearance of having the capability of an actual firearm. We

explained that “[t]he statute not only is aimed at preventing

actual physical injury or death but also is designed to

discourage criminal conduct that produces fear of physical

harm.” Holloman, 221 Va. at 198, 269 S.E.2d at 358.

Therefore, the statute bears a broader meaning and includes

those items which, although lacking the physical capability of

firing a projectile by explosion, have the appearance of

having the capability to do so.

In Holloman, we held that evidence showing that the

defendant used a replica of a .45 caliber pistol that fired

BBs by the force of a spring, but not gunpowder, was

sufficient to convict him of using a firearm in the commission

of a felony in violation of Code § 18.2-53.1. Id. at 197,

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199, 269 S.E.2d at 357-58. We observed that “fear of harm

results just as readily from employment of an instrument that

gives the appearance of having a firing capability as from use

of a weapon that actually has the capacity to shoot a

projectile.” Id. at 198, 269 S.E.2d at 358. Consequently,

evidence of the display of the BB gun was sufficient to

convict Holloman under Code § 18.2-53.1, “upon proof that

defendant employed an instrument which gave the appearance of

having a firing capability, whether or not the object actually

had the capacity to propel a bullet by the force of

gunpowder.” Id. at 199, 269 S.E.2d at 358.

In Yarborough, we revisited the meaning of Code § 18.2-

53.1 and reversed the defendant’s conviction because it was

based on evidence that merely raised a suspicion that he

possessed a firearm while committing a robbery. 247 Va. at

218-19, 441 S.E.2d at 344. Yarborough had approached a woman

and demanded her money, stating that “this is a stickup.” Id.

at 216, 441 S.E.2d at 343. The woman saw “something

protruding . . . from [the] right hand pocket of his jacket,”

but when Yarborough was apprehended a short time later, he

only had an unopened can of beer in one of his jacket pockets.

Id. at 217, 441 S.E.2d at 343. No weapon or item that had the

appearance of a weapon was in his possession, and none was

found during the search of the crime scene or where Yarborough

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was arrested. Id. In reversing his conviction, we stated

that “the fact that [the victim] merely thought or perceived

that [the defendant] was armed is insufficient to prove that

he actually possessed a firearm.” Id. at 219, 441 S.E.2d at

344. Therefore, any “evidence that Yarborough ‘may have had’

a firearm in his possession create[d] merely a suspicion of

guilt” and was insufficient to show that Yarborough used a

firearm or an item that had the appearance of a firearm in

violation of Code § 18.2-53.1 Id. at 218, 441 S.E.2d at 344.

In our interpretation of Code § 18.2-53.1, we recognize

that “[p]enal statutes must be strictly construed against the

State and . . . cannot be extended by implication or

construction, or be made to embrace cases which are not within

their letter and spirit.” Department of Motor Vehicles v.

Athey, 261 Va. 385, 388, 542 S.E.2d 764, 766 (2001) (citation

and internal quotation marks omitted). However, “[e]ven

though any ambiguity or reasonable doubt as to the meaning of

a penal statute must be resolved in favor of an accused,

nevertheless a defendant is not entitled to benefit from an

‘unreasonably restrictive interpretation of the statute.’ ”

Holloman, 221 Va. at 198, 269 S.E.2d at 357 (quoting Ansell v.

Commonwealth, 219 Va. 759, 761, 250 S.E.2d 760, 761 (1979)).

Consistent with these principles, when the legislature

seeks to criminalize the use of a firearm, the term “firearm”

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may be defined differently among several criminal statutes and

“must not be unreasonably restricted by judicial construction

such that the legislative intent is thereby frustrated.”

Armstrong v. Commonwealth, 263 Va. 573, 581-82, 562 S.E.2d

139, 144 (2002).

In Armstrong, we distinguished between a “firearm” for

purposes of Code § 18.2-53.1 as compared to Code § 18.2-308.2,

penalizing possession of a firearm by a convicted felon. Id.

at 581-84, 562 S.E.2d at 144-45. The definition is more

narrowly construed under the possession statute, Code § 18.2-

308.2, and requires proof that the defendant “possessed an

instrument which was designed, made, and intended to expel a

projectile by means of an explosion,” although it is not

necessary that the instrument is “operable [or] capable of

being fired.” Id. at 583-84, 562 S.E.2d at 145 (internal

quotation marks omitted). In contrast,

when the nature of some other criminal act is
defined by whether the defendant achieves his
purpose through the use of a firearm, a narrow
construction of the term is not warranted.
See, e.g., Johnson v. Commonwealth, 209 Va.
291, 296, 163 S.E.2d 570, 574 (1968) (charge
that attempted robbery involved “ ‘presenting
of firearms or other violence’ ” did not
warrant jury instruction that the instrument
displayed was an operable firearm).

Id. at 582, 562 S.E.2d at 144. Accordingly, the definition

under Code § 18.2-53.1 for use or display of a firearm during

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the commission of a felony warrants a “broad construction” and

includes any instrument that “gives the appearance of being a

firearm.” Id. at 582-83, 562 S.E.2d at 144 (emphasis added).

Therefore, in pursuing its objective of preventing fear of

physical harm by an instrumentality that has the appearance of

a firearm, Code § 18.2-53.1 encompasses a broader definition.

In this case, the replica used by Startin is similar to

the BB gun in Holloman. In their outward appearance, both

have the same size, weight and shape of an operational firearm

designed to expel .45 caliber ammunition by explosion. 221

Va. at 197, 269 S.E.2d at 357. The only meaningful difference

is the ability of the weapon in Holloman to propel BBs by the

force of a spring. Id. Neither the replica nor the BB gun

have a firing pin or any other mechanical device necessary to

fire a projectile by explosion. Id. Therefore, neither the

replica at issue here nor the BB gun in Holloman would be

sufficient to convict a person under Code § 18.2-308.2 for

possession of a firearm by a convicted felon because they are

not “designed, made, and intended to fire or expel a

projectile by means of an explosion.” Armstrong, 263 Va. at

583, 562 S.E.2d at 145.

However, both are sufficient to support a conviction

under the broader definition of firearm as used in Code

§ 18.2-53.1 and construed in our prior decisions applying the

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statute. While the replica used by Startin was not an actual

operational firearm, it nonetheless was a weapon within the

meaning of that term as used in this statute. In affirming

Startin’s conviction, the Court of Appeals correctly held that

[b]ecause Code § 18.2-53.1 is aimed at
preventing actual physical injury or death, the
term ‘firearm’ includes any instrument that is
capable of expelling a projectile by force or
gunpowder. As importantly, the term firearm in
Code § 18.2-53.1 also includes other objects
that are not capable of firing projectiles but
give the appearance of being able to do so.

Startin, 56 Va. App. at 38-39, 690 S.E.2d at 316 (quoting

Thomas v. Commonwealth, 25 Va. App. 681, 685, 492 S.E.2d 460,

462 (1997)). Startin’s replica of a firearm gave the

appearance of an actual firearm and was certainly capable of

evoking fear of physical harm. Consequently, we hold that the

Commonwealth’s evidence was sufficient to convict Startin of

using a firearm in violation of Code § 18.2-53.1 upon proof

that he “employed an instrument which gave the appearance of

having a firing capability, whether or not the object actually

had the capacity to propel a bullet by the force of

gunpowder.” Holloman, 221 Va. at 199, 269 S.E.2d at 358.

III. Conclusion

For the reasons stated, we hold that the Court of Appeals

did not err in affirming Startin’s convictions for use or

display of a firearm in the commission of a felony.

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Accordingly, we will affirm the judgment of the Court of

Appeals.

Affirmed.

SENIOR JUSTICE KOONTZ, concurring.

I concur with the Court’s analysis and decision in this

case. I write separately to stress that the commemorative

“John Wayne Replica” .45 caliber handgun at issue in this case

comes within the sweep of Code § 18.2-53.1 as we have

construed that statute in Holloman v. Commonwealth, 221 Va.

196, 269 S.E.2d 356 (1980). Here, it is undisputed that this

replica has the appearance of having the capability of

expelling a projectile by explosion, although in fact it lacks

that capability.

This is not a case where in the commission of a felony

the defendant used or displayed an instrument which lacked the

capability of expelling a projectile by explosion and also

lacked the appearance of having that capability. Holloman

requires that the instrument used or displayed by the

defendant comport with one or the other characteristic in

order to come within the sweep of Code § 18.2-53.1. Id. at

198, 269 S.E.2d at 358.

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