                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia


JONATHAN ANTONIO WILLIAMS
                                         MEMORANDUM OPINION * BY
v.   Record No. 2584-96-1              JUDGE JAMES W. BENTON, JR.
                                           FEBRUARY 10, 1998
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                        Norman Olitsky, Judge
           Dianne G. Ringer, Senior Assistant Public
           Defender, for appellant.

           John K. Byrum, Jr., Assistant Attorney
           General (Richard Cullen, Attorney General, on
           brief), for appellee.



      Williams was convicted in a bench trial of robbery and the

use of a firearm in the commission of robbery.      No issues are

raised on this appeal concerning those convictions.     In the same

proceeding, the trial judge found Williams, a previously

convicted felon, guilty of possessing a firearm in violation of

Code § 18.2-308.2.    This appeal arises from that conviction.

Williams argues that the evidence was insufficient to prove that

he in fact possessed a firearm.    We agree and reverse his

conviction.

                                  I.

      When a defendant challenges the sufficiency of the evidence,

we examine the evidence in the light most favorable to the

      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Commonwealth, granting to it all reasonable inferences fairly

deducible therefrom.    See Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975).     So viewed, the evidence

proved that on November 22, 1995 at approximately 3:00 p.m.

Zayvun Moore, a sales representative for a wholesaler, made a

delivery to a convenience store located in the City of

Portsmouth.    As he was leaving the store and heading back to his

truck, Williams approached him from behind and said, "Don't make

this hard on yourself."   Williams then demanded, "Give me all

your money."   When Moore said that he did not have any money,

Williams "pulled [a] gun out" of his jacket pocket and again

demanded Moore's money.   Williams pointed the gun at Moore's

midsection.
     When asked to describe the gun, Moore testified that the gun

was "dark-colored" and stated "I'm not a gun person."     On cross,

Moore again stated that the gun was dark colored but admitted, "I

do not know anything about guns."      When asked "Could you say if

it was a real gun or not?" Moore responded, "No."     Moore

testified that he gave Williams money because he thought the gun

was real.

     The trial judge denied Williams' motion to strike and

convicted Williams of violating Code § 18.2-308.2.

                                 II.

     Williams contends that the evidence was insufficient to

support his conviction because the Commonwealth failed to prove



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that he actually possessed a "firearm."   We agree.

     Code § 18.2-308.2 provides that "it shall be unlawful

for . . . any person was has been convicted of a felony . . . to

knowingly and intentionally possess . . . any firearm."   As with

any essential element of a criminal offense, the Commonwealth has

the burden of proving beyond a reasonable doubt that the object

possessed by a person charged with a violation of Code

§ 18.2-308.2 was actually a "firearm."    See Dowdy v.
Commonwealth, 220 Va. 114, 116, 255 S.E.2d 506, 508 (1979).

     In Jones v. Commonwealth, 16 Va. App. 354, 429 S.E.2d 615

(1992), aff'd en banc, 17 Va. App. 233, 436 S.E.2d 192 (1993),

this Court stated the following:
          Code § 18.2-308.2 does not define "firearm."
           The legislature has assigned various
          meanings to the term "firearm" in other
          sections of Title 18.2. Traditionally, a
          firearm is considered to be any weapon "from
          which a shot is discharged by gunpowder."
          Webster's Third International Dictionary 854
          (1981). However, when the meaning of a word
          in a statute may have a special or limited
          meaning, the meaning of the word must be
          construed in a manner that gives full effect
          to the legislative intent embodied in the
          entire statutory enactment. Therefore, in
          determining the meaning of "firearm" as used
          in Code § 18.2-308.2, we look to the meaning
          of that term in other parts of Title 18.2 and
          to the statutory scheme of Title 18.2,
          particularly the purpose of Code
          § 18.2-308.2, to ascertain the meaning that
          can be reconciled with other parts of the
          act. Furthermore, because Code § 18.2-308.2
          is a criminal statute, it must be construed
          strictly against the Commonwealth and in
          favor of the accused. When Code § 18.2-308.2
          is so construed, the word "firearm" in a
          statute designed to restrict possessing or
          transporting a specific class of dangerous


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            weapons cannot be read to encompass a BB
            handgun, but rather is intended to include
            "firearms" which are devices that propel a
            projectile by an explosion or discharge of
            gunpowder.


16 Va. App. at 356, 429 S.E.2d at 615-16 (citations and footnote

omitted).   Thus, we held in Jones that "Code § 18.2-308.2

prohibits a felon from possessing a device that has the actual

capacity to do serious harm because of its ability to expel a

projectile by the power of an explosion, and it is not concerned

with the use or display of a device that may have the appearance

of a firearm."    Id. at 357-58, 429 S.E.2d at 617.

     The Commonwealth must prove "beyond a reasonable doubt" that

the object was, in fact, a firearm.     Dowdy, 220 Va. at 116, 255

S.E.2d at 508.   Moore's testimony clearly proved that he was

intimidated by the object that had the appearance of a gun.

However, his testimony that he could not say whether the object

"was a real gun or not" leaves uncertain whether Williams

possessed a toy or an actual gun.   Moore admitted that he "was

not a gun person."   From Moore's testimony, the trier of fact

could not infer beyond a reasonable doubt that the device was

indeed a "real gun."

     Therefore, we reverse Williams' conviction.
                                           Reversed and dismissed.




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