COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Hodges
Argued at Norfolk, Virginia
DAVID T. VANZANT, JR.
v. Record No. 0713-95-1 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA APRIL 9, 1996
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Nelson T. Overton, Judge
Oscar H. Blayton for appellant.
John H. McLees, Jr., Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
On January 23, 1995, appellant, David T. Vanzant, Jr., pled
guilty to three counts of robbery and three counts of using or
displaying a firearm while committing robbery. In return, the
Commonwealth agreed to nolle prosequi an additional robbery
charge and an additional use of firearm charge. The court found
that appellant entered his pleas freely and voluntarily after
full consultation with counsel. Based on appellant's guilty
pleas and the Commonwealth's evidence that during the course of
the robberies appellant displayed a BB gun which looked like a
.45 caliber handgun, the trial court found him guilty on all six
charges and deferred imposing sentence until a presentence report
had been prepared.
Prior to appellant's sentencing hearing, this Court decided
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Sprouse v. Commonwealth, 19 Va. App. 548, 453 S.E.2d 303 (1995).
Based on Sprouse, appellant sought to withdraw his guilty pleas
on the three firearms convictions, contending the BB gun the
evidence showed he displayed in the course of the robberies was
not a "firearm" within the meaning of Code § 18.2-53.1. Relying
instead on Holloman v. Commonwealth, 221 Va. 196, 269 S.E.2d 356
(1980), the court denied appellant's motion to withdraw his
guilty pleas. Finding Holloman controls the decision in this
case, we affirm appellant's convictions.
Code § 18.2-53.1 provides, in part:
[i]t 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.
In Holloman, the Supreme Court ruled that a BB gun appearing
to be a .45 caliber pistol was a "firearm" within the meaning of
Code § 18.2-53.1. 221 Va. at 199, 269 S.E.2d at 358.
Analogizing the reasoning applicable to robbery cases, the
Holloman Court focused on the subjective fear of the victim who
"cannot be required to distinguish between a loaded pistol and a
spring gun when it is brandished during [the] commission of a
felony." Id. at 198, 269 S.E.2d at 358. Accordingly, the Court
held that "an instrument which gave the appearance of having a
firing capability" was sufficient to support a conviction under
Code § 18.2-53.1, "whether or not the object actually had the
- 2 -
capacity to propel a bullet by the force of gunpowder." Id. at
199, 269 S.E.2d at 358.
Appellant contends Holloman is not applicable, arguing that
the Supreme Court subsequently changed the law in Yarborough v.
Commonwealth, 247 Va. 215, 441 S.E.2d 342 (1994). However, the
Yarborough Court did not attempt to define "firearm" within the
meaning of the statute, and it did not dispute or reject the
Holloman rationale or its finding that a BB gun appearing to be a
.45 caliber gun is a "firearm." 247 Va. at 217-19, 441 S.E.2d at
343-44. The issue in Yarborough was whether, in light of the
absence of any testimony that a firearm was actually seen, the
circumstantial evidence of possession was sufficient beyond a
reasonable doubt to convict the defendant of the charge. 1
We find that under Holloman the BB gun appellant displayed
is a firearm within the meaning of Code § 18.2-53.1.
Accordingly, the trial court's denial of appellant's motion to
withdraw his guilty pleas is affirmed.
Affirmed.
1
In Yarborough, the victim testified to seeing "something
protruding" from Yarborough's jacket pocket during the incident,
which Yarborough called a "stick-up." 247 Va. at 216-17, 441
S.E.2d at 343. Although the victim believed Yarborough had a gun
in his pocket, she never saw or felt a firearm. Id. Yarborough
never stated he had a gun, and the police found no firearm in
Yarborough's possession, although they later found an unopened
can of beer in one of his jacket pockets. Id. Finding that the
evidence "create[d] merely a suspicion of guilt," the Court
reversed the conviction. Id. at 219, 441 S.E.2d at 344.
- 3 -