Present: Kinser, C.J., Lemons, Goodwyn, and Millette, JJ., 

and Russell, Lacy, and Koontz, S.JJ.∗

DUANE ELMER STARTIN, JR. 

v. Record No. 100778 OPINION BY JUSTICE DONALD W. LEMONS 

 March 4, 2011 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 In this appeal, we consider whether the Court of Appeals 

erred when it affirmed the convictions of Duane Elmer Startin, 

Jr. (“Startin”) for use or display of a firearm in the 

commission of a felony under Code § 18.2-53.1. 

I. Facts and Proceedings Below 

On January 12, 2005, Startin entered a pharmacy in 

Fairfax County and stated that he needed a bottle of 

Oxycontin. When the pharmacist asked him for a prescription, 

Startin lifted his shirt to reveal an object that appeared to 

be a black .45 caliber handgun tucked into the front waistband 

of his pants. The pharmacist saw the object and hesitated. 

Startin told her to “hurry up, lady,” and she handed him a 

bottle containing 100 pills of Oxycodone, the generic name for 

Oxycontin. Startin left the store with the bottle. 

On January 21, 2005, Startin entered a different store in 

Fairfax County and asked the pharmacist whether “Oxycontin 80” 

 ∗

 Justice Koontz presided and participated in the hearing 

and decision of this case prior to the effective date of his 

retirement on February 1, 2011; Justice Kinser was sworn in as 

Chief Justice on February 1, 2011. 
was in stock. After the pharmacist confirmed that this drug 

was in stock, Startin removed an object that appeared to be a 

black handgun from the waistband of his pants. Startin 

pointed it at the clerk and demanded to the pharmacist, “give 

me the medicine, give me the medicine.” The pharmacist gave 

Startin a bottle containing 100 Oxycontin pills and Startin 

left the store. Later, the clerk described the object as “a 

black older model handgun” but could not state whether it was 

a revolver or a pistol. 

Startin was later arrested in Petersburg, Virginia for a 

robbery charge in that jurisdiction. After being read his 

Miranda rights, Startin admitted to committing the robberies 

in Fairfax County and identified himself in several 

photographs taken by surveillance cameras during the 

robberies. Startin further stated that the weapon he used 

during the robberies was a commemorative “John Wayne Replica” 

.45 caliber handgun (“the replica”). 

In its outward appearance, the replica has the same size, 

weight and shape of an operational firearm designed to expel 

.45 caliber ammunition by explosion. At trial, the 

Commonwealth conceded that the replica was the object used or 

displayed by Startin 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, 

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arguing that the replica did not meet the definition of a 

firearm under Code § 18.2-53.1. 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. 

Based on this evidence, the trial court convicted Startin 

of two counts of use of a firearm during the commission of a 

felony under Code § 18.2-53.1. The trial court concluded that 

this Court’s holding in Holloman v. Commonwealth, 221 Va. 196, 

269 S.E.2d 356 (1980), presented the 

good policy . . . . to discourage criminal 

conduct that produces fear [of] physical harm. 

Because the victim can be intimidated as much 

by a pistol that doesn’t fire bullets [as] by 

one that does. 

And in a crime, a victim can’t distinguish 

between a loaded pistol and one that is 

designed to look precisely like one. 

The trial court cited several other cases from this Court for 

the proposition that the items in these cases “were held to be 

firearms, because they appeared to be capable of firing.” 

Accordingly, the trial court held that “the bottom line is 

that . . . the item that was used was a firearm, pursuant to 

Virginia Code Section 18.2-53.1.” Startin was sentenced to 10 

years with six years suspended for the two robbery convictions 

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and six years for the two convictions for the use or display 

of a firearm in the commission of a felony. 

The Court of Appeals of Virginia affirmed Startin’s two 

convictions for use of a firearm during the commission of a 

felony, Startin v. Commonwealth, 54 Va. App. 778, 682 S.E.2d 

115 (2009), and also affirmed upon a rehearing en banc. 

Startin v. Commonwealth, 56 Va. App. 26, 690 S.E.2d 310 

(2010). The Court of Appeals concluded that “Startin’s 

replica of a firearm was certainly capable of evoking fear of 

physical harm” and therefore held that “the trial court did 

not err in finding that the item Startin used was a firearm 

for the purposes of Code § 18.2-53.1.” Id. at 41, 690 S.E.2d 

at 317. Startin timely filed his notice of appeal to this 

Court. 

II. Analysis 

A. Standard of Review 

This Court applies a de novo standard of review when 

addressing a question of statutory construction. Harris v. 

Commonwealth, 274 Va. 409, 413, 650 S.E.2d 89, 91 (2007); 

Conyers v. Martial Arts World of Richmond, Inc., 273 Va. 96, 

104, 639 S.E.2d 174, 178 (2007). Additionally, when 

considering the sufficiency of the evidence to sustain a 

conviction, 

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this Court reviews “the evidence in the light 

most favorable to the prevailing party at trial 

and consider[s] all inferences fairly deducible 

from that evidence.” This Court will only 

reverse the judgment of the trial court if the 

judgment “ ‘is plainly wrong or without 

evidence to support it.’ ” “If there is 

evidence to support the convictions, the 

reviewing court is not permitted to substitute 

its own judgment, even if its opinion might 

differ from the conclusions reached by the 

finder of fact at the trial.” 

Clark v. Commonwealth, 279 Va. 636, 640-41, 691 S.E.2d 786, 

788 (2010) (citations omitted). 

B. Display or Use of a Firearm 

in the Commission of a Felony 

Startin argues that the Court of Appeals erred in holding 

that the evidence of his use of the replica in committing the 

robberies was sufficient to support his conviction under Code 

§ 18.2-53.1. For the reasons set forth below, we disagree. 

Under Code § 18.2-53.1, it is “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.” We have 

held that in order to convict a person under this statute, 

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. 

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Yarborough v. Commonwealth, 247 Va. 215, 218, 441 S.E.2d 342, 

344 (1994). 

In Holloman, we explained that Code § 18.2-53.1 has dual 

objectives. 221 Va. at 198, 269 S.E.2d at 358. First, the 

statute criminalizes the use or display of an actual firearm 

that has the capability of expelling a projectile by 

explosion, including “any pistol, shotgun, rifle, or other 

firearm.” Code § 18.2-53.1. Second, the statute also has the 

additional purpose of preventing fear of physical harm by the 

use or threatening display of an instrumentality that has the 

appearance of having the capability of an actual firearm. We 

explained that “[t]he statute 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, 221 Va. at 198, 269 S.E.2d at 358. 

Therefore, the statute bears a broader meaning and includes 

those items which, although lacking the physical capability of 

firing a projectile by explosion, have the appearance of 

having the capability to do so. 

In Holloman, we held that evidence showing that the 

defendant used a replica of a .45 caliber pistol that fired 

BBs by the force of a spring, but not gunpowder, was 

sufficient to convict him of using a firearm in the commission 

of a felony in violation of Code § 18.2-53.1. Id. at 197, 

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199, 269 S.E.2d at 357-58. We observed that “fear of harm 

results just as readily from employment of an instrument that 

gives the appearance of having a firing capability as from use 

of a weapon that actually has the capacity to shoot a 

projectile.” Id. at 198, 269 S.E.2d at 358. Consequently, 

evidence of the display of the BB gun was sufficient to 

convict Holloman under Code § 18.2-53.1, “upon proof that 

defendant employed an instrument which 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.” Id. at 199, 269 S.E.2d at 358. 

In Yarborough, we revisited the meaning of Code § 18.2-

53.1 and reversed the defendant’s conviction because it was 

based on evidence that merely raised a suspicion that he 

possessed a firearm while committing a robbery. 247 Va. at 

218-19, 441 S.E.2d at 344. Yarborough had approached a woman 

and demanded her money, stating that “this is a stickup.” Id.

at 216, 441 S.E.2d at 343. The woman saw “something 

protruding . . . from [the] right hand pocket of his jacket,” 

but when Yarborough was apprehended a short time later, he 

only had an unopened can of beer in one of his jacket pockets. 

Id. at 217, 441 S.E.2d at 343. No weapon or item that had the 

appearance of a weapon was in his possession, and none was 

found during the search of the crime scene or where Yarborough 

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was arrested. Id. In reversing his conviction, we stated 

that “the fact that [the victim] merely thought or perceived 

that [the defendant] was armed is insufficient to prove that 

he actually possessed a firearm.” Id. at 219, 441 S.E.2d at 

344. Therefore, any “evidence that Yarborough ‘may have had’ 

a firearm in his possession create[d] merely a suspicion of 

guilt” and was insufficient to show that Yarborough used a 

firearm or an item that had the appearance of a firearm in 

violation of Code § 18.2-53.1 Id. at 218, 441 S.E.2d at 344. 

In our interpretation of Code § 18.2-53.1, we recognize 

that “[p]enal statutes must be strictly construed against the 

State and . . . cannot be extended by implication or 

construction, or be made to embrace cases which are not within 

their letter and spirit.” Department of Motor Vehicles v. 

Athey, 261 Va. 385, 388, 542 S.E.2d 764, 766 (2001) (citation 

and internal quotation marks omitted). However, “[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)). 

Consistent with these principles, when the legislature 

seeks to criminalize the use of a firearm, the term “firearm” 

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may be defined differently among several criminal statutes and 

“must not be unreasonably restricted by judicial construction 

such that the legislative intent is thereby frustrated.” 

Armstrong v. Commonwealth, 263 Va. 573, 581-82, 562 S.E.2d 

139, 144 (2002). 

In Armstrong, we distinguished between a “firearm” for 

purposes of Code § 18.2-53.1 as compared to Code § 18.2-308.2, 

penalizing possession of a firearm by a convicted felon. Id.

at 581-84, 562 S.E.2d at 144-45. The definition is more 

narrowly construed under the possession statute, Code § 18.2-

308.2, and requires proof that the defendant “possessed an 

instrument which was designed, made, and intended to expel a 

projectile by means of an explosion,” although it is not 

necessary that the instrument is “operable [or] capable of 

being fired.” Id. at 583-84, 562 S.E.2d at 145 (internal 

quotation marks omitted). In contrast, 

when the nature of some other criminal act is 

defined by whether the defendant achieves his 

purpose through the use of a firearm, a narrow 

construction of the term is not warranted. 

See, e.g., Johnson v. Commonwealth, 209 Va. 

291, 296, 163 S.E.2d 570, 574 (1968) (charge 

that attempted robbery involved “ ‘presenting 

of firearms or other violence’ ” did not 

warrant jury instruction that the instrument 

displayed was an operable firearm). 

Id. at 582, 562 S.E.2d at 144. Accordingly, the definition 

under Code § 18.2-53.1 for use or display of a firearm during 

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the commission of a felony warrants a “broad construction” and 

includes any instrument that “gives the appearance of being a 

firearm.” Id. at 582-83, 562 S.E.2d at 144 (emphasis added). 

Therefore, in pursuing its objective of preventing fear of 

physical harm by an instrumentality that has the appearance of 

a firearm, Code § 18.2-53.1 encompasses a broader definition. 

In this case, the replica used by Startin is similar to 

the BB gun in Holloman. In their outward appearance, both 

have the same size, weight and shape of an operational firearm 

designed to expel .45 caliber ammunition by explosion. 221 

Va. at 197, 269 S.E.2d at 357. The only meaningful difference 

is the ability of the weapon in Holloman to propel BBs by the 

force of a spring. Id. Neither the replica nor the BB gun 

have a firing pin or any other mechanical device necessary to 

fire a projectile by explosion. Id. Therefore, neither the 

replica at issue here nor the BB gun in Holloman would be 

sufficient to convict a person under Code § 18.2-308.2 for 

possession of a firearm by a convicted felon because they are 

not “designed, made, and intended to fire or expel a 

projectile by means of an explosion.” Armstrong, 263 Va. at 

583, 562 S.E.2d at 145. 

However, both are sufficient to support a conviction 

under the broader definition of firearm as used in Code 

§ 18.2-53.1 and construed in our prior decisions applying the 

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statute. While the replica used by Startin was not an actual 

operational firearm, it nonetheless was a weapon within the 

meaning of that term as used in this statute. In affirming 

Startin’s conviction, the Court of Appeals correctly held that 

[b]ecause 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 force or 

gunpowder. As importantly, the term firearm in 

Code § 18.2-53.1 also includes other objects 

that are not capable of firing projectiles but 

give the appearance of being able to do so. 

Startin, 56 Va. App. at 38-39, 690 S.E.2d at 316 (quoting 

Thomas v. Commonwealth, 25 Va. App. 681, 685, 492 S.E.2d 460, 

462 (1997)). Startin’s replica of a firearm gave the 

appearance of an actual firearm and was certainly capable of 

evoking fear of physical harm. Consequently, we hold that the 

Commonwealth’s evidence was sufficient to convict Startin of 

using a firearm in violation of Code § 18.2-53.1 upon proof 

that he “employed an instrument which 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. 

III. Conclusion 

For the reasons stated, we hold that the Court of Appeals 

did not err in affirming Startin’s convictions for use or 

display of a firearm in the commission of a felony. 

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Accordingly, we will affirm the judgment of the Court of 

Appeals. 

Affirmed. 

SENIOR JUSTICE KOONTZ, concurring. 

 I concur with the Court’s analysis and decision in this 

case. I write separately to stress that the commemorative 

“John Wayne Replica” .45 caliber handgun at issue in this case 

comes within the sweep of Code § 18.2-53.1 as we have 

construed that statute in Holloman v. Commonwealth, 221 Va. 

196, 269 S.E.2d 356 (1980). Here, it is undisputed that this 

replica has the appearance of having the capability of 

expelling a projectile by explosion, although in fact it lacks 

that capability. 

This is not a case where in the commission of a felony 

the defendant used or displayed an instrument which lacked the 

capability of expelling a projectile by explosion and also 

lacked the appearance of having that capability. Holloman

requires that the instrument used or displayed by the 

defendant comport with one or the other characteristic in 

order to come within the sweep of Code § 18.2-53.1. Id. at 

198, 269 S.E.2d at 358. 

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