                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Petty
Argued at Richmond, Virginia


TAVORIS MARQUISE COURTNEY
                                                               MEMORANDUM OPINION * BY
v.     Record No. 0026-09-2                                   JUDGE ROBERT J. HUMPHREYS
                                                                    MARCH 23, 2010
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                Timothy J. Hauler, Judge

                 (Gregory R. Sheldon; Bain Sheldon, P.L.C., on brief), for appellant.
                 Appellant submitting on brief.

                 Leah A. Darron, Senior Assistant Attorney General (William C.
                 Mims, Attorney General, on brief), for appellee.


       Tavoris Marquise Courtney (“Courtney”) was convicted in a bench trial of robbery and

use of a firearm in the commission of a robbery, in violation of Code §§ 18.2-58 and 18.2-53.1.

He was sentenced to twenty years for robbery, with fifteen years suspended, and five years for

use of a firearm. On appeal, Courtney contends that the trial court erred in finding the evidence

sufficient to support his conviction for use of a firearm in the commission of a felony because the

evidence at trial demonstrated that he possessed a toy gun. For the following reasons, we

disagree and affirm the trial court’s conviction of use of a firearm in the commission of a felony.

                                             ANALYSIS

       In a challenge to the sufficiency of the evidence, “we ‘presume the judgment of the trial

court to be correct’ and ‘will not set it aside unless it is plainly wrong or without evidence to

support it.’” Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77 (2002)

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
(quoting Broom v. Broom, 15 Va. App. 497, 504, 425 S.E.2d 90, 94 (1992); Dodge v. Dodge, 2

Va. App. 238, 242, 343 S.E.2d 363, 365 (1986)). The reviewing court, under this standard, does

not “ask itself whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (emphasis in original and

citation omitted). Instead, the reviewing court asks whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in

original).

        When reviewing the sufficiency of the evidence to support a conviction, “we determine

whether the evidence, viewed in the light most favorable to the prevailing party, the

Commonwealth, and the reasonable inferences fairly deducible from that evidence support each

and every element of the charged offense.” Haskins v. Commonwealth, 31 Va. App. 145,

149-50, 521 S.E.2d 777, 779 (1999). “[W]hen we consider the sufficiency of the evidence . . .

we review the totality of the evidence to determine whether it was sufficient to prove an

offense.” Bowling v. Commonwealth, 51 Va. App. 102, 107, 654 S.E.2d 354, 356 (2007) (citing

Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004)).

        Code § 18.2-53.1 provides “[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.” In order to be convicted under this statute, 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) that 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). While the

code section does not define what a “firearm” is, it has been interpreted to include “any
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instrument that is capable of expelling a projectile by the force of gunpowder” as well as “some

objects that are not capable of firing projectiles by an explosion of gunpowder.” Id. at 685, 492

S.E.2d at 462. “Firearm” also includes

                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 685-86, 492 S.E.2d at 462 (quoting Holloman v. Commonwealth, 221 Va. 196, 198, 269

S.E.2d 356, 358 (1980)).

                [W]hen 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 evidence.

Id. at 686-87, 492 S.E.2d at 463 (internal citations omitted).

        Courtney relies on this Court’s holding in Sprouse v. Commonwealth, 19 Va. App. 548,

551-52, 453 S.E.2d 303, 305-06 (1995), in which we held that the evidence was insufficient to

sustain a conviction under Code § 18.2-53.1 where the object used in the commission of a

robbery was not a firearm, even though it appeared to be a gun to the victim, because the

Commonwealth conceded that it was a “toy pistol.” However, this Court overruled Sprouse in

Startin v. Commonwealth, ___Va. App.___, ___, ___ S.E.2d ___, ___ (Mar. 23, 2010) (en banc)

(“Accordingly, in light of the twofold purpose behind Code § 18.2-53.1 to prevent actual

physical injury or death and to discourage criminal conduct that produces fear of physical harm,

we . . . overrule the decision in Sprouse . . . .”), this day decided, because the holding in Sprouse

directly conflicted with the harm that Code § 18.2-53.1 was aimed at preventing. Thus, Sprouse

is not controlling.



                                                -3-
       In turning to the statements and actions of Courtney to determine whether he actually

possessed a firearm, the facts of this case are similar to those in Elmore v. Commonwealth, 22

Va. App. 424, 430, 470 S.E.2d 588, 590 (1996), in which this Court affirmed the defendant’s

conviction under Code § 18.2-53.1 because the “evidence [was] sufficient to prove beyond a

reasonable doubt that the defendant actually possessed a firearm and used it in a threatening

manner.” In Elmore, the defendant approached the victim, a bank teller, and handed her a note

that stated it was a robbery and that he had a gun. Id. at 426, 470 S.E.2d at 588-89. The victim

then looked at the defendant, and the defendant said that he did not want to hurt anyone and

pointed to his pocket, which made her believe he had a gun. Id. The Court noted that unlike

Sprouse, the only evidence admitted in Elmore to refute his statement that he had a gun was his

own denial, which the trial court rejected. Id. at 429-30, 470 S.E.2d at 590. This Court relied on

the note in which defendant stated he had a “gun,” his action of pointing to his pocket, and his

statement that he did not want to hurt anyone to affirm his conviction. Id. at 430, 470 S.E.2d at

590.

       The Commonwealth relies on Powell v. Commonwealth, 268 Va. 233, 237, 602 S.E.2d

199, 121 (2004), in which the Supreme Court affirmed the defendant’s conviction under Code

§ 18.2-53.1 where he told the victims he had a gun, threatened to hurt them if they did not follow

his instructions, was fidgety, and kept his hand in his pocket. The victims never saw a gun, nor

was a gun recovered. Id. In affirming the conviction, the Supreme Court noted that the

“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.” Id.

       As noted by this Court, ”[a]n out-of-court statement by the defendant that admits or

acknowledges a fact or facts tending to prove guilt is admissible in evidence against the

                                               -4-
defendant.” Elmore, 22 Va. App. at 429, 470 S.E.2d at 590. In this case we have both a

statement by Courtney that he had a gun, and Nelson’s belief that he had one. Like the

defendants in Elmore and Powell, Courtney told Nelson that he had a gun, to quit looking at him,

and to get back in her car. Nelson testified that she never saw a gun but that he pointed his finger

under his sweatshirt like he had a gun, and she believed that he had a gun based on his words and

actions.

       The evidence is sufficient to prove beyond a reasonable doubt that Courtney possessed a

firearm during the commission of the robbery. Therefore, we hold that the trial court did not err

in holding the evidence sufficient to support his conviction under Code § 18.2-53.1, and affirm.

                                                                                         Affirmed.




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