COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Overton and Senior Judge Hodges 

 Argued at Salem, Virginia 

BOYD OLIVER MILLER, JR. 

 OPINION BY 

v. Record No. 1988-95-3 JUDGE WILLIAM H. HODGES 

 SEPTEMBER 24, 1996 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF SALEM 

G. O. Clemens, Judge 

 Thomas B. Dickenson (King, Fulghum, Snead, 

Nixon & Grimes, on brief), for appellant. 

 Daniel J. Munroe, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Boyd Oliver Miller, Jr. (appellant) was convicted of two 

counts of robbery and two counts of use of a firearm in the 

commission of robbery. There was no controversy that the pistol 

he used in the robberies was so badly rusted that ammunition 

could not be loaded into it. Therefore, he contends that the 

pistol was not a firearm within the meaning of Code § 18.2-53.1 

and thus, the evidence was insufficient to sustain his 

convictions for use of a firearm in the commission of robbery. 

We disagree and affirm the convictions. 

 I. 

 Appellant was charged with two counts of robbery, two counts 

of use of a firearm in the commission of robbery, and two counts 

of possession of a firearm after having been convicted of a 

felony, arising from incidents at a Hardee's restaurant and the 
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Orange Market in Salem. Appellant entered pleas of guilty to the 

robbery charges and pleas of not guilty to the charges of use of 

a firearm and possession of a firearm by a convicted felon.1

 The evidence established that on March 23, 1995, at 10:30 

p.m., appellant entered Hardee's restaurant and ordered a cup of 

coffee. When the cashier opened the cash drawer, appellant 

produced a gun in his right hand and, with his left hand, reached 

into the cash drawer and took money from it. At 1:00 a.m., on 

March 24, 1995, appellant entered the Orange Market, retrieved a 

bottle of orange juice from the cooler, and brought it to the 

cashier. When the cash register drawer opened, appellant 

produced a gun in his right hand, and, with his left hand, 

reached across the counter and took cash from the cash register. 

 A surveillance camera at the market recorded the events. After 

appellant left the market, he got into a car driven by his wife. 

 Appellant's wife was arrested in the City of Roanoke on 

unrelated charges. When appellant came to the Roanoke jail to 

post bail for her, he was arrested on the robbery charges. 

Police searched the passenger portion of the taxicab in which 

appellant had been riding on his way to the jail and found a 

small revolver. After his arrest, appellant admitted his 

involvement in the robberies. 

 Detective Meador of the Roanoke City Police Department 

 1The Commonwealth presented a summary of the evidence 

concerning the robbery charges. The court heard testimony about 

the firearm used in the robberies. 
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testified that the weapon was a "small revolver that's rusted." 

He testified that the gun cannot be opened and cannot be fired 

"because you couldn't put the ammo in it." Meador opined that a 

gunsmith would be able to restore the weapon but would need to 

take the gun apart, then reassemble it. 

 II. 

 At trial, appellant argued that he could not be convicted of 

the use of a firearm charges and the possession of a firearm by a 

convicted felon charges because the weapon was inoperable and, as 

such, was not a firearm under the applicable statutes. The judge 

found appellant not guilty of the charges of possession of a 

firearm by a convicted felon, finding that the purpose of Code 

§ 18.2-308.2 is "to prevent actual harm and to prevent the actual 

ability to do harm." 

 The judge found appellant guilty of the two charges of use 

of a firearm in the commission of robbery. The judge found that 

the weapon was a firearm for purposes of that statute. He noted 

that the rust on the gun did not affect its appearance, and the 

law does not require the firearm to be operable. The judge 

concluded, "I do not find that this weapon has lost its identity 

as a firearm . . . . " 

 III. 

 The issue presented on appeal is whether the rusted, 

inoperable revolver used in the robberies constituted a firearm 

within the meaning of Code § 18.2-53.1. 
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 The word "firearm" is not defined in Code § 18.2-53.1, nor 

does the statute refer to any other statute defining the term. 

However, a court, in construing the words of a statute, "must 

give effect to the legislative intent" of the statute. Scott v. 

Commonwealth, 14 Va. App. 294, 296, 416 S.E.2d 47, 48 (1992). 

See Newton v. Commonwealth, 21 Va. App. 86, 89, 462 S.E.2d 117, 

119 (1995). 

 In Holloman v. Commonwealth, 221 Va. 196, 269 S.E.2d 356 

(1980), the Supreme Court of Virginia discussed Code § 18.2-53.1: 

 The 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. Such 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. 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 Holloman, the Court affirmed the conviction for use of a 

firearm where the defendant had used a BB gun, which resembled a 

.45 calibre handgun, in the commission of rape. Id. at 199, 269 

S.E.2d at 358. In Cox v. Commonwealth, 218 Va. 689, 240 S.E.2d 

524 (1978), the Court affirmed the conviction where the defendant 

used a firearm, which, while capable of firing ammunition, was at 

the time of the robbery loaded with wooden bullets, which "were 

ab initio incapable of being discharged." Id. at 692, 240 S.E.2d 

at 526. 
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 In Yarborough v. Commonwealth, 247 Va. 215, 441 S.E.2d 342 

(1994), the Supreme Court held that to prove the offense of use 

of a firearm, "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." Id. at 218, 441 

S.E.2d at 344. The Court stated that possession of a firearm is 

an "essential element" of the offense. Id. at 219, 441 S.E.2d at 

344. The Court in Yarborough, however, did not hold that the 

accused must have an operational firearm in order to fall within 

the purview of the statute. Yarborough did not overrule Holloman

and Cox.2

 We affirmed the conviction for use of a firearm in the 

commission of robbery in Wilson v. Commonwealth, 19 Va. App. 535, 

452 S.E.2d 884 (1995), where the victim, who was familiar with 

guns, saw only the handle of a gun protruding from the robber's 

pocket, and saw the defendant with his hand in his pocket next to 

the gun. We held that the evidence "sufficiently proved Wilson's 

actual possession of a firearm and his use of it in a threatening 

manner while committing the robbery." Id. at 537, 452 S.E.2d at 

885. Cf. Sprouse v. Commonwealth, 19 Va. App. 548, 453 S.E.2d 

 

 2The Court in Yarborough discussed Holloman and Cox and 

concluded that the cases stand for the proposition that the 

Commonwealth must prove that the defendant actually possessed a 

firearm. Yarborough, 247 Va. at 218, 441 S.E.2d at 343-44. 
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303 (1995) (defendant may not be convicted for the use of firearm 

in commission of robbery where undisputed evidence established 

that robber used toy pistol). 

 Here, the trial judge found that the rust on the gun did not 

affect its appearance. He concluded that the weapon had not 

"lost its identity as a firearm." The judge did not err in 

convicting appellant of use of a firearm in the commission of the 

robberies. 

 We affirm the judgment of the trial court. 

 Affirmed.