Startin v. Com.

• Decision Date: 23 March 2010
• Docket Number: Record No. 2837-08-4.
• Citation: 56 Va. App. 26,690 S.E.2d 310
• Court: Virginia Court of Appeals
• Parties: Duane Elmer STARTIN, Jr. v. COMMONWEALTH of Virginia.

690 S.E.2d 310

56 Va. App. 26

Duane Elmer STARTIN, Jr. v. COMMONWEALTH of Virginia.

Record No. 2837-08-4.

Court of Appeals of Virginia, Richmond.

March 23, 2010.

Neal Goldberg (Teresa E. McGarrity; Office of the Public Defender, on briefs), for appellant.

Craig W. Stallard, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: FELTON, C.J., and ELDER, FRANK, HUMPHREYS, KELSEY, McCLANAHAN, HALEY, PETTY, BEALES, POWELL and ALSTON, JJ.

CLEO E. POWELL, Judge.

Duane Elmer Startin, Jr. ("Startin") appeals two convictions for use of a firearm during the commission of a felony, in violation of Code § 18.2-53.1. Before a panel of this Court, he argued that the trial court erred in finding that the evidence was sufficient to prove that (1) the item he used during the commission of two robberies was a "firearm," and (2) he used or attempted to use a firearm or displayed a firearm in a threatening manner.¹ A divided panel of this Court affirmed Startin's convictions. See Startin v. Commonwealth, 54 Va.App. 778, 682 S.E.2d 115 (2009). We granted Startin's petition for rehearing en banc and stayed the mandate of the panel's decision. On rehearing en banc, we hold that the replica of a firearm that Startin used during the commission of two robberies is a firearm within the meaning of Code § 18.2-53.1. Therefore, we affirm Startin's convictions.

I. BACKGROUND

On January 12, 2005, Startin entered a pharmacy, approached the pharmaceutical counter, and stated that he needed a bottle of Oxycontin. When the pharmacist asked Startin for his prescription, he lifted his shirt to reveal what looked like a black handgun tucked into the front of his pants. The clerk saw the gun but hesitated before Startin demanded that she "hurry up." The pharmacist gave him a bottle of generic Oxycodone ER. Startin left the store with the bottle.

Nine days later, Startin entered a different pharmacy and asked the pharmacist whether they stocked Oxycontin. After learning that the pharmacy had Oxycontin, Startin grabbed an object that appeared to be a black handgun from his waistband and pointed it at the clerk. The clerk described the gun as an older model handgun but was unsure whether it was a pistol or revolver. When Startin ordered the pharmacist to give him the drugs, the pharmacist gave Startin a bottle containing one hundred pills.

After Startin was arrested, police recovered a "John Wayne Replica" .45 caliber handgun made by the Franklin Mint. This commemorative replica appears to be the same in size, weight, and shape as the original firearm. This replica, however, does not include a firing pin or other mechanical device necessary to fire a projectile. Startin told police that this was the object he used 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, in violation of Code § 18.2-53.1. During his bench trial, Startin challenged whether the item he possessed met the definition of a firearm under Code § 18.2-53.1. As evidence in the trial, 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.

Upon this proffer of the evidence, the trial court convicted Startin of two counts of use of a firearm during the commission of a felony. In pronouncing its judgment, the trial court cited several cases from both this Court and the Supreme Court of Virginia for the proposition that the items in these cases were held to be firearms because they appeared to be capable of firing. After discussing these cases, the trial court held, "the bottom line is that . . . the item that was used was a firearm, pursuant to Virginia Code § 18.2-53.1." This appeal followed.

II. ANALYSIS

Appellant relies on Sprouse v. Commonwealth, 19 Va.App. 548, 551-52, 453 S.E.2d 303, 305-06 (1995), to argue that a conviction under Code § 18.2-53.1 requires that the object displayed actually be a firearm and because the item he possessed was an inoperable, commemorative replica of a firearm, he cannot be convicted of using a firearm during the commission of a felony. The Commonwealth responds that Code § 18.2-53.1 "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 v. Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980). Because the trial court found that appellant's commemorative replica firearm "appear[ed] to be an operational firearm designed to expel forty-five caliber ammunition," the Commonwealth contends that the replica firearm was a firearm for the purpose of Code § 18.2-53.1. On brief, the Commonwealth asks this Court to "at a minimum" limit Sprouse to the facts of that case and further asserted at oral argument that Sprouse was wrongly decided and should be overruled.

To support a conviction for use of a firearm during the commission of a felony, under Code § 18.2-53.1, the Commonwealth must prove (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) this action involving the firearm occurred during the commission or attempt to commit one of the felonies enumerated in the statute.

Thomas v. Commonwealth, 25 Va.App. 681, 684-85, 492 S.E.2d 460, 462 (1997) (citations omitted). Code § 18.2-53.1 neither defines firearm nor refers to any other statute that defines the term. Therefore, the task of interpreting what the General Assembly intended as the definition of firearm has fallen upon Virginia's courts. In construing the General Assembly's intent, "[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)).

The meaning of the term firearm as used in Code § 18.2-53.1 has frequently been considered by Virginia's courts. In order to decide this case, we must review prior decisions interpreting Code § 18.2-53.1, starting with the Supreme Court of Virginia's decision in Holloman. Holloman was convicted of the use of a firearm during the commission of rape. Id. at 197, 269 S.E.2d at 357. On appeal, Holloman challenged whether his use of a spring operated BB gun met the definition of firearm under Code § 18.2-53.1. Id. In finding Holloman guilty, the Supreme Court of Virginia interpreted the General Assembly's intent in crafting the legislation to broadly define firearm beyond its traditional definition. Id. at 198-99, 269 S.E.2d at 357-58; see also Armstrong v. Commonwealth, 36 Va.App. 312, 315, 549 S.E.2d 641, 643 (2001) (hereinafter Armstrong I), aff'd, 263 Va. 573, 562 S.E.2d 139 (2002) (hereinafter Armstrong II). Specifically, the Supreme Court of Virginia held that the evidence was sufficient to convict Holloman of using a firearm in violation of Code § 18.2-53.1 upon proof that Holloman "employed an instrument that 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. The Supreme Court of Virginia's rationale for broadly interpreting the term firearm was twofold. First, it reasoned that the statute "`is [not only] to deter violent criminal conduct . . . but also . . . to discourage criminal conduct that produces fear of physical harm.'" Armstrong II, 263 Va. at 582, 562 S.E.2d at 144 (quoting Holloman, 221 Va. at 198, 269 S.E.2d at 358). Therefore, a "`victim of a crime can be intimidated as much by a revolver that does not fire bullets as by one that does.'" Id. Second, the Supreme Court of Virginia 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 commission of a felony." Holloman, 221 Va. at 198, 269 S.E.2d at 358.

In 1994, the Supreme Court of Virginia revisited the definition of a firearm under Code § 18.2-53.1. In Yarborough v. Commonwealth, 247 Va. 215, 218-19, 441 S.E.2d 342, 344 (1994), the Court reversed a conviction where the evidence raised only a suspicion that Yarborough used a firearm while perpetrating a robbery. There, Yarborough approached a woman, informed her that "this is a stickup[,]" and demanded her money. Id. at 216-17, 441 S.E.2d at 343. Both of Yarborough's hands were in his pockets as he approached the woman and she saw "something protruding . . . from the right hand pocket of his jacket." Id. at 217, 441 S.E.2d at 343. In response, the woman gave Yarborough her money. Id. When he was apprehended a short time later, he had no weapons in his possession—only a chilled, unopened can of beer in one of his jacket pockets. Id. Despite a search of the area near where the crime occurred and where Yarborough was arrested, no weapon was found. Id. The Supreme Court of Virginia reversed his conviction because there was no evidence that Yarborough possessed anything other than an unopened can of beer and "evidence that Yarborough `may have had' a firearm in his possession create[d] merely a suspicion of guilt." Id. at 217-19, 441 S.E.2d at 343-44.

This Court later held that a rusted, inoperable revolver was a firearm within the meaning of Code § 18.2-53.1. Miller v. Commonwealth, 23 Va.App. 208, 211-13, 475 S.E.2d 828, 829-30 (19...