COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia
CLINTON GAYLORD THOMAS
OPINION BY
v. Record No. 2736-96-2 JUDGE LARRY G. ELDER
NOVEMBER 4, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Patricia P. Nagel, Assistant Public Defender
(David J. Johnson, Public Defender, on
brief), for appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Richard Cullen, Attorney General;
Margaret Ann B. Walker, Assistant Attorney
General, on brief), for appellee.
Clinton G. Thomas (appellant) appeals his conviction of use
of a firearm during the commission of robbery in violation of
Code § 18.2-53.1. 1 He contends the evidence was insufficient to
prove that the object he possessed and used during his robbery of
a cab driver was a "firearm." For the reasons that follow, we
affirm.
I.
FACTS
At trial, the evidence established that on June 9, 1996 at
about 10:30 p.m., the victim, a Richmond cab driver, picked up
appellant as his next fare. Appellant sat in the back seat of
1
In addition to violating Code § 18.2-53.1, appellant was
also convicted of robbery. However, his robbery conviction is
not the subject of this appeal.
the cab and told the victim that he wished to be driven first to
a house on "the 3500 block of Idlewood" to pick up his girlfriend
and then to the airport.
When the victim arrived at the house, appellant told him to
park the cab behind another parked car. Appellant then placed an
object to the back of the victim's head. The victim reached
behind his head and felt the tip of the object and testified that
it "felt like" the barrel of a gun. He grabbed the object and
started pulling it away from his head. Appellant responded by
"jerking" the object out of the victim's hand and forcefully
returning it to the back of the victim's head. Appellant then
demanded that the victim give him all of his money, and the
victim "pulled some cash out of one of [his] pockets and handed
it to him." A short while later, the victim managed to flee from
the cab with the keys to its ignition. At all times during the
encounter with appellant, the victim "looked straight ahead," and
he never saw the object placed by appellant against the back of
his head. Instead, he only "felt what appeared to be . . . the
barrel of a gun."
Appellant was arrested by police officers within the next
thirty minutes. The arresting officers searched appellant and
recovered a metallic, "blue steel," BB pistol from his right
pants pocket. In this appeal, appellant does not question that
the evidence proved the object felt by the victim in the cab was
this BB pistol. The BB pistol recovered by the officers was
-2-
admitted into evidence as Commonwealth's exhibit number one and
is contained in the record on appeal. It has the size, weight,
and shape of a small handgun. The police officer who helped
recover the BB pistol from appellant testified that he neither
test-fired the pistol nor examined it to see if it contained any
BBs.
II.
"FIREARM" UNDER CODE § 18.2-53.1
Appellant contends the evidence was insufficient to prove
that the BB pistol he used during his robbery of the victim was a
"firearm" under Code § 18.2-53.1. Because the evidence proved
that the BB pistol gave the appearance of having a firing
capability, we disagree.
Code § 18.2-53.1 states in relevant part:
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 . . . ."
(Emphasis added). In a prosecution under Code § 18.2-53.1, the
Commonwealth is required to prove four elements: (1) that the
accused "possessed" an object; (2) that this object was a
"pistol, shotgun, rifle, or other firearm"; (3) that the accused
"used or attempted to use the firearm or displayed the firearm in
a threatening manner"; and (4) that this action involving the
firearm occurred during the commission or attempt to commit one
of the felonies enumerated in the statute. See Yarborough v.
-3-
Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 344 (1994)
(stating 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"); Sprouse v.
Commonwealth, 19 Va. App. 548, 551-52, 453 S.E.2d 303, 306 (1995)
(stating that the Commonwealth must prove that "the object used
to cause the victim to reasonably believe it was a firearm was,
in fact, a firearm").
The General Assembly did not define the word "firearm" in
Code § 18.2-53.1. However, the Virginia Supreme Court has
previously construed the General Assembly's intended meaning of
this term and has set forth parameters of what does and does not
constitute a "firearm" under the statute. See Holloman v.
Commonwealth, 221 Va. 196, 198-99, 269 S.E.2d 356, 357-58 (1980).
First, because 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 the force
of gunpowder. See id.
In addition, the term "firearm" in Code § 18.2-53.1 includes
some objects that are not capable of firing projectiles by an
explosion of gunpowder. In Holloman, the Supreme Court held that
any instrument that "gives the appearance" of having the capacity
to propel a bullet by the force of gunpowder is a "firearm" under
-4-
Code § 18.2-53.1. See id. at 199, 269 S.E.2d at 358 (holding
that a BB pistol that fires BBs by the force of a spring but
resembled a .45 caliber handgun was a "firearm" because it "gave
the appearance of having a firing capability"). The Supreme
Court's rationale for this expanded meaning of "firearm" was
twofold. First, it reasoned that the word "firearm" included
instruments that merely appear to have a firing capability
because the General Assembly intended Code § 18.2-53.1 "to
discourage criminal conduct that produces fear of physical harm"
and the victim of a crime "can be intimidated as much by a
revolver that does not fire bullets as by one that does." Id. at
198, 269 S.E.2d at 358. In addition, the Supreme Court reasoned
that, as a practical matter, a crime victim "cannot be required
to distinguish between a loaded pistol and a spring gun when it
is brandished during the commission of a felony." Id.
Applying these principles, this Court has held that a
rusted, inoperable revolver was a "firearm" under Code
§ 18.2-53.1 because it "had not 'lost its identity as a
firearm.'" Miller v. Commonwealth, 23 Va. App. 208, 213, 475
S.E.2d 828, 830 (1996). On the other hand, we have held that an
object that appeared to the victim to be a gun but that the
Commonwealth conceded was only a "toy pistol" was not "in fact, a
firearm." Sprouse, 19 Va. App. at 551-52, 453 S.E.2d at 305-06.
Whether a particular object used by an accused during the
commission of a felony was a firearm may be proved by direct
-5-
evidence, circumstantial evidence, or both. See McBride v.
Commonwealth, 24 Va. App. 603, 607, 484 S.E.2d 165, 167 (1997)
(en banc); Byers v. Commonwealth, 23 Va. App. 146, 150-51, 474
S.E.2d 852, 854 (1996). Prior case law indicates that, when
determining whether a particular object is a "firearm," the fact
finder may consider the victim's visual and nonvisual
observations of the object, 2 the victim's knowledge of firearms, 3
the accused's representations about the object during the
commission of the felony, 4 expert testimony, 5 and the appearance
of the object itself when it is admitted into evidence. 6
However, the evidence regarding the object must prove beyond a
reasonable doubt that it is a "firearm" as that term is used in
Code § 18.2-53.1, and when the evidence regarding the object is
purely circumstantial, it must exclude all reasonable hypotheses
of innocence. See Yarborough, 247 Va. at 218, 441 S.E.2d at 344;
2
See Yarborough, 247 Va. at 216-17, 218-19, 441 S.E.2d at
343, 344; McBride, 24 Va. App. at 605, 607-08, 484 S.E.2d at 166,
168; Byers, 23 Va. App. at 149-50, 152, 474 S.E.2d at 854, 855;
Wilson v. Commonwealth, 19 Va. App. 535, 536, 537, 452 S.E.2d
884, 884, 885 (1995).
3
See Wilson, 19 Va. App. at 536, 537, 452 S.E.2d at 885, 885.
4
See Elmore v. Commonwealth, 22 Va. App. 424, 426, 429-30,
470 S.E.2d 588, 589, 590 (1996); see also McBride, 24 Va. App. at
605, 607-08, 484 S.E.2d at 166, 168; Byers, 23 Va. App. at
149-50, 152, 474 S.E.2d at 854, 855.
5
Cf. Miller, 23 Va. App. at 210, 475 S.E.2d at 829
(considering a police officer's opinion regarding the feasibility
of restoring a rusted, inoperable revolver to working condition).
6
See Holloman, 221 Va. at 197, 199, 269 S.E.2d at 357, 358;
Sprouse, 19 Va. App. at 550, 453 S.E.2d at 305.
-6-
Byers, 23 Va. App. at 150-52, 474 S.E.2d at 854-55.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). This Court does
not substitute its judgment for that of the trier of fact. Cable
v. Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).
Instead, the trial court's judgment will not be set aside unless
it appears that it is plainly wrong or without supporting
evidence. Josephs v. Commonwealth, 10 Va. App. 87, 99, 390
S.E.2d 491, 497 (1990) (en banc).
We hold that the evidence was sufficient to prove that the
BB pistol used by appellant while robbing the victim was a
"firearm" under Code § 18.2-53.1. Both the victim's observations
of the pistol during the robbery and an examination of the pistol
itself, which was introduced into evidence, support the
conclusion that it was an instrument that gave the appearance of
having a firing capability. During the robbery, the victim
grabbed the tip of the BB pistol with his hand and observed that
it "felt like the barrel of a gun." In addition, an examination
of the BB pistol reveals that it looks like a small handgun that
is capable of firing bullets by the explosion of gunpowder. This
direct evidence of the BB pistol's appearance excludes as a
reasonable hypothesis the possibility that it is a mere "toy
pistol."
-7-
For the foregoing reasons, we affirm the conviction of use
of a firearm during the commission of robbery in violation of
Code § 18.2-53.1.
Affirmed.
-8-