THOMAS v. COMMONWEALTH
NOVEMBER 4, 1997
Record No. 2736-96-2
CLINTON GAYLORD THOMAS
COMMONWEALTH OF VIRGINIA
OPINION BY JUDGE LARRY G. ELDER
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Present: Chief Judge Moon, Judges Willis and Elder
Argued at Richmond, Virginia
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. 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.
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 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
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
"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. 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
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 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
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, the
victim’s knowledge of firearms, the accused’s representations
about the object during the commission of the felony, expert testimony, and
the appearance of the object itself when it is admitted into
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; Byers, 23 Va. App. at 150-52, 474 S.E.2d at
"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)
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
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.
 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.
 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,
 See Wilson, 19
Va. App. at 536, 537, 452 S.E.2d at 885, 885.
 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.
 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).
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.