COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Senior Judge Hodges 

Argued at Norfolk, Virginia 

DAVID T. VANZANT, JR. 

v. Record No. 0713-95-1 MEMORANDUM OPINION* BY 

 JUDGE ROSEMARIE ANNUNZIATA 

COMMONWEALTH OF VIRGINIA APRIL 9, 1996 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Nelson T. Overton, Judge 

 Oscar H. Blayton for appellant. 

 John H. McLees, Jr., Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 On January 23, 1995, appellant, David T. Vanzant, Jr., pled 

guilty to three counts of robbery and three counts of using or 

displaying a firearm while committing robbery. In return, the 

Commonwealth agreed to nolle prosequi an additional robbery 

charge and an additional use of firearm charge. The court found 

that appellant entered his pleas freely and voluntarily after 

full consultation with counsel. Based on appellant's guilty 

pleas and the Commonwealth's evidence that during the course of 

the robberies appellant displayed a BB gun which looked like a 

.45 caliber handgun, the trial court found him guilty on all six 

charges and deferred imposing sentence until a presentence report 

had been prepared. 

 Prior to appellant's sentencing hearing, this Court decided 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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Sprouse v. Commonwealth, 19 Va. App. 548, 453 S.E.2d 303 (1995). 

 Based on Sprouse, appellant sought to withdraw his guilty pleas 

on the three firearms convictions, contending the BB gun the 

evidence showed he displayed in the course of the robberies was 

not a "firearm" within the meaning of Code § 18.2-53.1. Relying 

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

(1980), the court denied appellant's motion to withdraw his 

guilty pleas. Finding Holloman controls the decision in this 

case, we affirm appellant's convictions. 

 Code § 18.2-53.1 provides, in part: 

 [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 . . . . 

Violation of this section shall constitute a 

separate and distinct felony. 

 In Holloman, the Supreme Court ruled that a BB gun appearing 

to be a .45 caliber pistol was a "firearm" within the meaning of 

Code § 18.2-53.1. 221 Va. at 199, 269 S.E.2d at 358. 

Analogizing the reasoning applicable to robbery cases, the 

Holloman Court focused on the subjective fear of the victim who 

"cannot be required to distinguish between a loaded pistol and a 

spring gun when it is brandished during [the] commission of a 

felony." Id. at 198, 269 S.E.2d at 358. Accordingly, the Court 

held that "an instrument which gave the appearance of having a 

firing capability" was sufficient to support a conviction under 

Code § 18.2-53.1, "whether or not the object actually had the 
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capacity to propel a bullet by the force of gunpowder." Id. at 

199, 269 S.E.2d at 358. 

 Appellant contends Holloman is not applicable, arguing that 

the Supreme Court subsequently changed the law in Yarborough v. 

Commonwealth, 247 Va. 215, 441 S.E.2d 342 (1994). However, the 

Yarborough Court did not attempt to define "firearm" within the 

meaning of the statute, and it did not dispute or reject the 

Holloman rationale or its finding that a BB gun appearing to be a 

.45 caliber gun is a "firearm." 247 Va. at 217-19, 441 S.E.2d at 

343-44. The issue in Yarborough was whether, in light of the 

absence of any testimony that a firearm was actually seen, the 

circumstantial evidence of possession was sufficient beyond a 

reasonable doubt to convict the defendant of the charge.1 

 We find that under Holloman the BB gun appellant displayed 

is a firearm within the meaning of Code § 18.2-53.1. 

Accordingly, the trial court's denial of appellant's motion to 

withdraw his guilty pleas is affirmed. 

Affirmed.

 

 1In Yarborough, the victim testified to seeing "something 

protruding" from Yarborough's jacket pocket during the incident, 

which Yarborough called a "stick-up." 247 Va. at 216-17, 441 

S.E.2d at 343. Although the victim believed Yarborough had a gun 

in his pocket, she never saw or felt a firearm. Id. Yarborough 

never stated he had a gun, and the police found no firearm in 

Yarborough's possession, although they later found an unopened 

can of beer in one of his jacket pockets. Id. Finding that the 

evidence "create[d] merely a suspicion of guilt," the Court 

reversed the conviction. Id. at 219, 441 S.E.2d at 344.