Courtney v. Com.

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

TAVORIS M. COURTNEY

v. Record No. 100776 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 conviction of Tavoris M. Courtney

(“Courtney”) 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 11, 2008, Laura Nelson (“Nelson”) was driving

to her home in Chesterfield County around 10:00 p.m. She

noticed that a vehicle turned into her subdivision and

followed her until she pulled into her driveway. As she

parked and opened her car door, a masked man approached and

told her to get back into her vehicle. She described the man

as “a black male with a hood over a sweatshirt . . . and a

bandana over his face,” exposing only his eyes.

When Nelson did not immediately comply, her assailant,

later identified as Courtney, told her to “[q]uit looking at

me and get back in the car.” When Nelson refused, Courtney

∗
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.
said, “I have a gun, get back in the car.” Nelson never saw a

gun or the item that Courtney was holding under his shirt, but

she believed Courtney had a gun and said that she was “very

scared.” Nelson told Courtney that that he would “have to

kill [her] or shoot [her] because [she was] not getting back

in the car.” She remained where she was but also pressed the

vehicle’s horn. Courtney took Nelson’s two purses and her

cellular phone, and he ran away. At that point, Nelson also

saw a second man running away, and she chased both men down

the street. She pursued both men while screaming for help,

and her neighbor, Scott Rittenhouse (“Rittenhouse”), heard

Nelson yelling. Rittenhouse ran to the street and tackled the

second man on the ground. Courtney then kicked Rittenhouse

and hit him with Nelson’s purse. Unable to free the second

man, Courtney got into a waiting vehicle being driven by a

third person and left the scene.

Courtney was apprehended in the vehicle by police at a

gas station approximately five minutes later and three miles

from Nelson’s home. Police recovered Nelson’s cellular phone

in the bathroom trashcan of the gas station, and her purses

were later recovered down the street in her neighborhood.

During a search of the vehicle, police recovered hooded

sweatshirts, two bandanas, and a “small revolver-type handgun

with an orange tip on the end of it.” The officer described

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it as a “cap gun” and said that it “looks like, obviously, a

toy gun.”

The trial court, without a jury, found Courtney guilty of

robbery and use of a firearm in the commission of a robbery.

Based on the evidence showing that Nelson “had a bona fide

belief that [Courtney] had a firearm” and that Courtney

“threatened [Nelson] and instilled fear in [Nelson] that she

might be shot if she did not cooperate,” the trial court held

that the evidence was sufficient to sustain both the robbery

and firearms convictions under Code §§ 18.2-58 and 18.2-53.1.

A three-judge panel of the Court of Appeals of Virginia,

in an unpublished opinion, affirmed Courtney’s conviction for

use of a firearm in the commission of a robbery. Based upon

the evidence that Courtney stated he had a gun and Nelson’s

belief that he had one, the Court of Appeals held that the

evidence was sufficient to support his conviction under Code

§ 18.2-53.1. Id., slip op. at 5. Courtney timely filed his

notice of appeal to this Court.

II. Analysis

A. Standard of Review

On appeal, we apply 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,

3
104, 639 S.E.2d 174, 178 (2007). Additionally, when

considering the sufficiency of the evidence to sustain a

conviction,

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

Courtney contends that the Court of Appeals erred in

holding that the evidence was sufficient to support his

conviction for use or display of a firearm in the commission

of a robbery under Code § 18.2-53.1. For the reasons set

forth below, we disagree.

It is important to state what this case is not about. It

is not about whether a particular toy gun resembles an actual

gun. Nelson did not see the object used by Courtney;

consequently, the question of resemblance is irrelevant.

In Powell v. Commonwealth, 268 Va. 233, 237, 602 S.E.2d

119, 121 (2004), we affirmed a conviction under Code § 18.2-

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53.1 despite the fact that the victims did not see a firearm

and no firearm was ever recovered. Powell robbed a clothing

store and “informed the employees that he had a pistol in his

pocket,” and he kept his hand in his pocket during the course

of the robbery. Id. at 235, 602 S.E.2d at 120. He was

apprehended by police only minutes later in a taxicab, but no

pistol was located. Id. Despite the fact that no pistol was

seen or found, we held that the evidence showing that Powell

was “fidgety,” kept his hand in his pocket, told the victims

he had a pistol, and threatened to “hurt” them if they did not

follow his instructions was sufficient to support his

conviction. Id. We held that

evidence that no gun was found conflicts with
Powell’s statements and actions during the
commission of the offenses. The trier of fact
resolved this conflict against Powell, and in
doing so, necessarily concluded that Powell had
a gun. In other words, resolution of the
factual conflict in this manner established
beyond a reasonable doubt that Powell had a
gun.

Id.

In her argument to the trial court, the Commonwealth’s

Attorney stated with regard to the existence of an actual

firearm:

We don’t know what the defendant actually had under his
clothes. The police did later recover the gun that you
see photographed there, which is not a real gun.
However, the victim would have no way of knowing that.
She didn’t know if he had a gun, a real gun, a play gun,

5
 what he had under there. He could have had a real gun
for all we know. He certainly had an opportunity to
discard one.

The Commonwealth’s Attorney additionally stated that:

Your Honor, what I’ll start with is defense counsel
said that no one believes that this was a real gun. We,
you, defense counsel and I didn’t believe that this was a
real gun, but I would submit to you that the victim did.
She never saw the pistol, she never saw what was
recovered in this car. She knows that the defendant told
her that he had a gun and that he had something under his
shirt. She believed it was a real gun.

Courtney argues that the Commonwealth conceded that an

actual firearm was not used in the commission of the offense.

Considering the Commonwealth’s argument in context, we do not

agree. Clearly, the Commonwealth conceded that an actual

firearm was not recovered. Nonetheless, the Commonwealth

consistently maintained that the evidence was in conflict

concerning whether Courtney used an actual firearm in the

commission of the robbery. The Commonwealth argued that

Courtney’s statement “I have a gun,” and that he would “have

to kill” or “shoot” the victim if she continued to disregard

his commands, combined with his opportunity to discard an

actual firearm, were sufficient to find him guilty of use or

display of a firearm in the commission of a felony under Code

§ 18.2-53.1.

The conflict in the evidence in this case is precisely

the situation we considered in Powell. We review the

6
sufficiency of the evidence based upon the statutory standard

found in Code § 8.01-680:

When a case, civil or criminal, is tried by a jury and a
party objects to the judgment or action of the court in
granting or refusing to grant a new trial on a motion to
set aside the verdict of a jury on the ground that it is
contrary to the evidence, or when a case is decided by a
court without the intervention of a jury and a party
objects to the decision on the ground that it is contrary
to the evidence, the judgment of the trial court shall
not be set aside unless it appears from the evidence that
such judgment is plainly wrong or without evidence to
support it.

As we have said on many occasions, “[I]f 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.” Commonwealth v. Jenkins, 255 Va. 516, 520, 499

S.E.2d 263, 265 (1998).

III. Conclusion

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

did not err in affirming Courtney’s conviction for use or

display of a firearm in the commission of a felony.

Accordingly, we will affirm the judgment of the Court of

Appeals.

Affirmed.

SENIOR JUSTICE KOONTZ, dissenting.

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 I respectfully dissent. In my view, a “toy gun” is

neither a “firearm” or “such weapon” contemplated by the plain

language of Code § 18.2-53.1. Today, however, the majority of

this Court judicially broadens the scope of this statute

beyond the plain meaning of its language to permit a

conviction pursuant to this statute where the evidence

establishes that the defendant used a toy gun lacking the

appearance of an actual gun to commit a robbery. I am

unwilling to ascribe to the General Assembly an intent to

include such toy guns within the sweep of this criminal

statute.

The principles of appellate review applicable to the

question of statutory construction in this case are well-

established. “[W]e determine the General Assembly’s intent

from the words contained in the statute.” Alger v.

Commonwealth, 267 Va. 255, 259, 590 S.E.2d 563, 565 (2004)

(quoting Williams v. Commonwealth, 265 Va. 268, 271, 576

S.E.2d 468, 470 (2003)). “The plain, obvious, and rational

meaning of a statute is to be preferred over any curious,

narrow, or strained construction.” Commonwealth v. Zamani,

256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). “When the

language of a statute is unambiguous, courts are bound by the

plain meaning of that language and may not assign a

construction that amounts to holding that the General Assembly

8
did not mean what it actually has stated.” Elliott v.

Commonwealth, 277 Va. 457, 463, 675 S.E.2d 178, 182 (2009).

Finally, a court must strictly construe a penal statute

against the Commonwealth and limit its application to cases

falling clearly within the statute. Turner v. Commonwealth,

226 Va. 456, 459, 309 S.E.2d 337, 338 (1983).

Code § 18.2-53.1, in pertinent part, provides that: “It

shall be 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 . . . . Violation of this section

shall constitute a separate and distinct felony.” (Emphasis

added.)

This statute is not ambiguous. Its plain language makes

no reference to a toy gun. Moreover, a toy gun is not a

“firearm” because a toy gun is generally understood and

accepted to be an object designed, made, and intended for

amusement and not an object designed, made, and intended to

have the capability of expelling a projectile by explosion as

is the case of a “pistol, shotgun, rifle, or other firearm.”

See, e.g., Code § 18.2-433.1 (defining a “firearm” as “any

weapon that will or is designed to or may readily be converted

to expel single or multiple projectiles by the action of an

explosion of a combustible material”); Armstrong v.

9
Commonwealth, 263 Va. 573, 584, 562 S.E.2d 139, 145 (2002)(“to

sustain a conviction for possessing a firearm in violation of

Code § 18.2-308.2, the evidence need show only that a person

subject to the provisions of that statute possessed an

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

projectile by means of an explosion”). Likewise, a toy gun is

not a “weapon” because a toy gun lacks the capability, common

to a pistol, shotgun or rifle, to inflict physical harm.

However, in Holloman v. Commonwealth, 221 Va. 196, 197-

99, 269 S.E.2d 356, 357-58 (1980), a case involving a spring-

operated BB pistol that appeared in size, weight, and shape to

be a .45 caliber automatic pistol, we held that a firearm

under Code § 18.2-53.1 includes “an instrument which give[s]

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.” 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.” Id. at 198, 269 S.E.2d at

358. The defendant had asserted that a “firearm” is a weapon

that expels a projectile by force of gunpowder and, thus, a

spring-operated BB gun did not come within the scope of Code

§ 18.2-53.1. Id. at 197, 269 S.E.2d at 357. While we

expressly rejected that assertion, our decision in Holloman

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does not purport to sweep all toy guns within the scope of

Code § 18.2-53.1.

The majority’s analysis in the present case appears to be

based upon two initial conclusions. First, the majority

states that it is “important” that this case is not about

whether a particular toy gun resembles an actual gun because

the victim of the robbery did not see the object used by the

defendant. Next, the majority concludes that the Commonwealth

did not concede that the defendant used a toy gun in the

commission of the robbery and only conceded that an actual

firearm was not recovered.

In my view, this case is about whether a particular toy

gun resembles an actual firearm. It is axiomatic that the

Commonwealth’s case cannot rise above its own evidence. In

support of the alleged violation of Code § 18.2-53.1, the

Commonwealth introduced a photograph of the gun recovered by

the police upon arresting the defendant shortly after the

robbery. Although the victim had not seen that gun, the

arresting officer testified on behalf of the Commonwealth that

the gun “looks like, obviously, a toy gun.” In short, the

Commonwealth’s case was premised entirely upon the defendant’s

use of this particular gun while committing the robbery.

Indeed, the Commonwealth would have had no other logical

reason to introduce this evidence.

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 In the present case, the Commonwealth both at trial and

on appeal has relied on our decision in Powell v.

Commonwealth, 268 Va. 233, 237, 602 S.E.2d 119, 121 (2004).

In Powell, we affirmed a conviction under Code § 18.2-53.1

even though the victim of a robbery did not see a firearm and

no firearm was ever recovered. Id. Powell, the defendant,

had told the victim that he had a pistol in his pocket and he

kept his hand in his pocket during the course of the robbery.

Id. at 235, 602 S.E.2d at 120. He told the victim not to move

“and won’t nobody get hurt.” Id. Powell was arrested a short

time after the robbery in a taxicab, and no pistol was ever

recovered by the police. Id. Powell confessed to the robbery

offense, but maintained that he had not had a pistol during

the robbery. Id. A majority of this Court held that the

evidence was sufficient to establish beyond a reasonable doubt

that in fact Powell had a pistol during the course of the

robbery. Id. at 237, 602 S.E.2d at 121.

Like in Powell, the defendant in this case stated that he

had a gun and although the victim did not see a gun, the

victim was reasonably threatened. Thus, there is no question

the evidence was sufficient to sustain the defendant’s

conviction for robbery of the victim. That determination,

however, does not resolve the issue of whether the facts

support a separate conviction of the defendant for violation

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of Code § 18.2-53.1 because, unlike in Powell, here the

Commonwealth introduced evidence regarding the particular

“gun” the defendant used in the commission of the robbery.

That “gun” was a toy gun; it was not a “firearm.”

Additionally, the Commonwealth’s evidence established that

this toy gun “looks like” a toy gun. A toy gun that looks

like a toy gun logically does not also have the appearance of

having the capability of an actual firearm.

Although not addressed by the majority here, in

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

344 (1994), in construing Code § 18.2-53.1, this Court held

that “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.” In that case, the robbery

victim did not see a gun although she thought that the accused

possessed a gun. Id. at 217, 441 S.E.2d at 343. No gun was

ever recovered. Id. This Court expressly rejected the

Commonwealth’s assertion that the evidence is sufficient to

support a conviction under Code § 18.2-53.1 when the victim

“is made to feel that an assailant has a firearm, and reacts

in response to that perception.” Id. (emphasis in original).

Yarborough clearly does not support the majority’s reasoning

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that the evidence was sufficient in the present case to

support the defendant’s conviction under Code § 18.2-53.1 on

the premise essentially that the defendant stated that he had

a gun, the victim believed that he had a gun, and the victim

was “very scared.”

In the final analysis, the majority is left to base its

decision that the Commonwealth’s evidence in this case is

sufficient to support the defendant’s conviction under Code

§ 18.2-53.1 on the premise that the defendant had an

“opportunity to discard an actual firearm” sometime prior to

his arrest shortly after the robbery. Significantly, even the

Commonwealth’s Attorney in that regard could only assert that

“[the defendant] could have had a real gun for all we know.”

In light of the Commonwealth’s evidence regarding the toy gun

recovered by the police when the defendant was arrested, it is

pure speculation that the defendant also had an actual firearm

in addition to a toy gun and discarded only the former as he

fled from the scene of the robbery. It is well-settled that

speculation does not amount to the proof beyond a reasonable

doubt which is required for a defendant to be convicted of a

crime.

It bears repeating that Code § 18.2-53.1, as pertinent

here, prohibits the use or attempt to use any pistol, shotgun,

rifle, or other firearm while committing robbery. In

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Holloman, which involved the use of a BB pistol, we held that

an instrument which gives the appearance of having a firing

capability is a “firearm” contemplated by Code § 18.2-53.1

because the statute has two purposes; one of which is to

discourage criminal conduct that produces fear of physical

harm. Id. at 198-99, 269 S.E.2d at 358. And in Yarborough we

expressly held that the Commonwealth must prove that the

accused actually had such a firearm, as defined in Holloman,

in his possession while committing robbery. 247 Va. at 218,

441 S.E.2d at 343-44. The plain meaning of the language in

Code § 18.2-53.1 evinces a legislative intent to include only

the use or display of a pistol, shotgun, rifle or other

firearm that gives the appearance of having the capability of

firing a projectile. Our prior decisions have been consistent

with that interpretation of this statute.

In sum, if a particular gun does not have the capability

of firing a projectile and does not adequately resemble an

actual gun, then such a gun does not come within our

interpretation of Code § 18.2-53.1 in either Holloman or

Yarborough. In the present case, there is direct evidence

that the defendant while committing robbery possessed and used

a toy gun which did not have the appearance of an actual

firearm. There is no evidence the defendant possessed and

used an actual firearm and at some point discarded that

15
firearm. That the defendant stated to the victim of the

robbery that he had a gun does not alter the fact that the gun

he possessed was not an actual firearm. It was a toy. The

evidence in this case falls far short of proof beyond a

reasonable doubt that the toy gun adequately resembled an

actual firearm and, thus, the evidence is insufficient to

support the defendant’s conviction under Code § 18.2-53.1.

For these reasons, I would reverse the judgment of the

Court of Appeals upholding the conviction of Courtney under

Code § 18.2-53.1 and vacate that conviction.

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