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

and Russell, Lacy, and Koontz, S.JJ.∗

TAVORIS M. COURTNEY 

v. Record No. 100776 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 conviction of Tavoris M. Courtney 

(“Courtney”) 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 11, 2008, Laura Nelson (“Nelson”) was driving 

to her home in Chesterfield County around 10:00 p.m. She 

noticed that a vehicle turned into her subdivision and 

followed her until she pulled into her driveway. As she 

parked and opened her car door, a masked man approached and 

told her to get back into her vehicle. She described the man 

as “a black male with a hood over a sweatshirt . . . and a 

bandana over his face,” exposing only his eyes. 

When Nelson did not immediately comply, her assailant, 

later identified as Courtney, told her to “[q]uit looking at 

me and get back in the car.” When Nelson refused, Courtney 

 ∗

 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. 
said, “I have a gun, get back in the car.” Nelson never saw a 

gun or the item that Courtney was holding under his shirt, but 

she believed Courtney had a gun and said that she was “very 

scared.” Nelson told Courtney that that he would “have to 

kill [her] or shoot [her] because [she was] not getting back 

in the car.” She remained where she was but also pressed the 

vehicle’s horn. Courtney took Nelson’s two purses and her 

cellular phone, and he ran away. At that point, Nelson also 

saw a second man running away, and she chased both men down 

the street. She pursued both men while screaming for help, 

and her neighbor, Scott Rittenhouse (“Rittenhouse”), heard 

Nelson yelling. Rittenhouse ran to the street and tackled the 

second man on the ground. Courtney then kicked Rittenhouse 

and hit him with Nelson’s purse. Unable to free the second 

man, Courtney got into a waiting vehicle being driven by a 

third person and left the scene. 

Courtney was apprehended in the vehicle by police at a 

gas station approximately five minutes later and three miles 

from Nelson’s home. Police recovered Nelson’s cellular phone 

in the bathroom trashcan of the gas station, and her purses 

were later recovered down the street in her neighborhood. 

During a search of the vehicle, police recovered hooded 

sweatshirts, two bandanas, and a “small revolver-type handgun 

with an orange tip on the end of it.” The officer described 

2
it as a “cap gun” and said that it “looks like, obviously, a 

toy gun.” 

The trial court, without a jury, found Courtney guilty of 

robbery and use of a firearm in the commission of a robbery. 

Based on the evidence showing that Nelson “had a bona fide 

belief that [Courtney] had a firearm” and that Courtney 

“threatened [Nelson] and instilled fear in [Nelson] that she 

might be shot if she did not cooperate,” the trial court held 

that the evidence was sufficient to sustain both the robbery 

and firearms convictions under Code §§ 18.2-58 and 18.2-53.1. 

A three-judge panel of the Court of Appeals of Virginia, 

in an unpublished opinion, affirmed Courtney’s conviction for 

use of a firearm in the commission of a robbery. Based upon 

the evidence that Courtney stated he had a gun and Nelson’s 

belief that he had one, the Court of Appeals held that the 

evidence was sufficient to support his conviction under Code 

§ 18.2-53.1. Id., slip op. at 5. Courtney timely filed his 

notice of appeal to this Court. 

II. Analysis 

A. Standard of Review 

On appeal, we apply 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, 

3
104, 639 S.E.2d 174, 178 (2007). Additionally, when 

considering the sufficiency of the evidence to sustain a 

conviction, 

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 

Courtney contends that the Court of Appeals erred in 

holding that the evidence was sufficient to support his 

conviction for use or display of a firearm in the commission 

of a robbery under Code § 18.2-53.1. For the reasons set 

forth below, we disagree. 

It is important to state what this case is not about. It 

is not about whether a particular toy gun resembles an actual 

gun. Nelson did not see the object used by Courtney; 

consequently, the question of resemblance is irrelevant. 

In Powell v. Commonwealth, 268 Va. 233, 237, 602 S.E.2d 

119, 121 (2004), we affirmed a conviction under Code § 18.2-

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53.1 despite the fact that the victims did not see a firearm 

and no firearm was ever recovered. Powell robbed a clothing 

store and “informed the employees that he had a pistol in his 

pocket,” and he kept his hand in his pocket during the course 

of the robbery. Id. at 235, 602 S.E.2d at 120. He was 

apprehended by police only minutes later in a taxicab, but no 

pistol was located. Id. Despite the fact that no pistol was 

seen or found, we held that the evidence showing that Powell 

was “fidgety,” kept his hand in his pocket, told the victims 

he had a pistol, and threatened to “hurt” them if they did not 

follow his instructions was sufficient to support his 

conviction. Id. We held that 

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. In other words, resolution of the 

factual conflict in this manner established 

beyond a reasonable doubt that Powell had a 

gun. 

Id.

In her argument to the trial court, the Commonwealth’s 

Attorney stated with regard to the existence of an actual 

firearm: 

We don’t know what the defendant actually had under his 

clothes. The police did later recover the gun that you 

see photographed there, which is not a real gun. 

However, the victim would have no way of knowing that. 

She didn’t know if he had a gun, a real gun, a play gun, 

5
what he had under there. He could have had a real gun 

for all we know. He certainly had an opportunity to 

discard one. 

The Commonwealth’s Attorney additionally stated that: 

Your Honor, what I’ll start with is defense counsel 

said that no one believes that this was a real gun. We, 

you, defense counsel and I didn’t believe that this was a 

real gun, but I would submit to you that the victim did. 

She never saw the pistol, she never saw what was 

recovered in this car. She knows that the defendant told 

her that he had a gun and that he had something under his 

shirt. She believed it was a real gun. 

 Courtney argues that the Commonwealth conceded that an 

actual firearm was not used in the commission of the offense. 

Considering the Commonwealth’s argument in context, we do not 

agree. Clearly, the Commonwealth conceded that an actual 

firearm was not recovered. Nonetheless, the Commonwealth 

consistently maintained that the evidence was in conflict 

concerning whether Courtney used an actual firearm in the 

commission of the robbery. The Commonwealth argued that 

Courtney’s statement “I have a gun,” and that he would “have 

to kill” or “shoot” the victim if she continued to disregard 

his commands, combined with his opportunity to discard an 

actual firearm, were sufficient to find him guilty of use or 

display of a firearm in the commission of a felony under Code 

§ 18.2-53.1. 

 The conflict in the evidence in this case is precisely 

the situation we considered in Powell. We review the 

6
sufficiency of the evidence based upon the statutory standard 

found in Code § 8.01-680: 

When a case, civil or criminal, is tried by a jury and a 

party objects to the judgment or action of the court in 

granting or refusing to grant a new trial on a motion to 

set aside the verdict of a jury on the ground that it is 

contrary to the evidence, or when a case is decided by a 

court without the intervention of a jury and a party 

objects to the decision on the ground that it is contrary 

to the evidence, the judgment of the trial court shall 

not be set aside unless it appears from the evidence that 

such judgment is plainly wrong or without evidence to 

support it. 

As we have said on many occasions, “[I]f 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.” Commonwealth v. Jenkins, 255 Va. 516, 520, 499 

S.E.2d 263, 265 (1998). 

III. Conclusion 

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

did not err in affirming Courtney’s conviction for use or 

display of a firearm in the commission of a felony. 

Accordingly, we will affirm the judgment of the Court of 

Appeals. 

Affirmed. 

SENIOR JUSTICE KOONTZ, dissenting. 

7
 I respectfully dissent. In my view, a “toy gun” is 

neither a “firearm” or “such weapon” contemplated by the plain 

language of Code § 18.2-53.1. Today, however, the majority of 

this Court judicially broadens the scope of this statute 

beyond the plain meaning of its language to permit a 

conviction pursuant to this statute where the evidence 

establishes that the defendant used a toy gun lacking the 

appearance of an actual gun to commit a robbery. I am 

unwilling to ascribe to the General Assembly an intent to 

include such toy guns within the sweep of this criminal 

statute. 

 The principles of appellate review applicable to the 

question of statutory construction in this case are wellestablished. “[W]e determine the General Assembly’s intent 

from the words contained in the statute.” Alger v. 

Commonwealth, 267 Va. 255, 259, 590 S.E.2d 563, 565 (2004) 

(quoting Williams v. Commonwealth, 265 Va. 268, 271, 576 

S.E.2d 468, 470 (2003)). “The plain, obvious, and rational 

meaning of a statute is to be preferred over any curious, 

narrow, or strained construction.” Commonwealth v. Zamani, 

256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). “When the 

language of a statute is unambiguous, courts are bound by the 

plain meaning of that language and may not assign a 

construction that amounts to holding that the General Assembly 

8
did not mean what it actually has stated.” Elliott v. 

Commonwealth, 277 Va. 457, 463, 675 S.E.2d 178, 182 (2009). 

Finally, a court must strictly construe a penal statute 

against the Commonwealth and limit its application to cases 

falling clearly within the statute. Turner v. Commonwealth, 

226 Va. 456, 459, 309 S.E.2d 337, 338 (1983). 

 Code § 18.2-53.1, in pertinent part, provides that: “It 

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.” (Emphasis 

added.) 

 This statute is not ambiguous. Its plain language makes 

no reference to a toy gun. Moreover, a toy gun is not a 

“firearm” because a toy gun is generally understood and 

accepted to be an object designed, made, and intended for 

amusement and not an object designed, made, and intended to 

have the capability of expelling a projectile by explosion as 

is the case of a “pistol, shotgun, rifle, or other firearm.” 

See, e.g., Code § 18.2-433.1 (defining a “firearm” as “any 

weapon that will or is designed to or may readily be converted 

to expel single or multiple projectiles by the action of an 

explosion of a combustible material”); Armstrong v. 

9
Commonwealth, 263 Va. 573, 584, 562 S.E.2d 139, 145 (2002)(“to 

sustain a conviction for possessing a firearm in violation of 

Code § 18.2-308.2, the evidence need show only that a person 

subject to the provisions of that statute possessed an 

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

projectile by means of an explosion”). Likewise, a toy gun is 

not a “weapon” because a toy gun lacks the capability, common 

to a pistol, shotgun or rifle, to inflict physical harm. 

 However, in Holloman v. Commonwealth, 221 Va. 196, 197-

99, 269 S.E.2d 356, 357-58 (1980), a case involving a springoperated BB pistol that appeared in size, weight, and shape to 

be a .45 caliber automatic pistol, we held that a firearm 

under Code § 18.2-53.1 includes “an instrument which give[s] 

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.” 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.” Id. at 198, 269 S.E.2d at 

358. The defendant had asserted that a “firearm” is a weapon 

that expels a projectile by force of gunpowder and, thus, a 

spring-operated BB gun did not come within the scope of Code 

§ 18.2-53.1. Id. at 197, 269 S.E.2d at 357. While we 

expressly rejected that assertion, our decision in Holloman

10
does not purport to sweep all toy guns within the scope of 

Code § 18.2-53.1. 

 The majority’s analysis in the present case appears to be 

based upon two initial conclusions. First, the majority 

states that it is “important” that this case is not about 

whether a particular toy gun resembles an actual gun because 

the victim of the robbery did not see the object used by the 

defendant. Next, the majority concludes that the Commonwealth 

did not concede that the defendant used a toy gun in the 

commission of the robbery and only conceded that an actual 

firearm was not recovered. 

 In my view, this case is about whether a particular toy 

gun resembles an actual firearm. It is axiomatic that the 

Commonwealth’s case cannot rise above its own evidence. In 

support of the alleged violation of Code § 18.2-53.1, the 

Commonwealth introduced a photograph of the gun recovered by 

the police upon arresting the defendant shortly after the 

robbery. Although the victim had not seen that gun, the 

arresting officer testified on behalf of the Commonwealth that 

the gun “looks like, obviously, a toy gun.” In short, the 

Commonwealth’s case was premised entirely upon the defendant’s 

use of this particular gun while committing the robbery. 

Indeed, the Commonwealth would have had no other logical 

reason to introduce this evidence. 

11
 In the present case, the Commonwealth both at trial and 

on appeal has relied on our decision in Powell v. 

Commonwealth, 268 Va. 233, 237, 602 S.E.2d 119, 121 (2004). 

In Powell, we affirmed a conviction under Code § 18.2-53.1 

even though the victim of a robbery did not see a firearm and 

no firearm was ever recovered. Id. Powell, the defendant, 

had told the victim that he had a pistol in his pocket and he 

kept his hand in his pocket during the course of the robbery. 

Id. at 235, 602 S.E.2d at 120. He told the victim not to move 

“and won’t nobody get hurt.” Id. Powell was arrested a short 

time after the robbery in a taxicab, and no pistol was ever 

recovered by the police. Id. Powell confessed to the robbery 

offense, but maintained that he had not had a pistol during 

the robbery. Id. A majority of this Court held that the 

evidence was sufficient to establish beyond a reasonable doubt 

that in fact Powell had a pistol during the course of the 

robbery. Id. at 237, 602 S.E.2d at 121. 

 Like in Powell, the defendant in this case stated that he 

had a gun and although the victim did not see a gun, the 

victim was reasonably threatened. Thus, there is no question 

the evidence was sufficient to sustain the defendant’s 

conviction for robbery of the victim. That determination, 

however, does not resolve the issue of whether the facts 

support a separate conviction of the defendant for violation 

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of Code § 18.2-53.1 because, unlike in Powell, here the 

Commonwealth introduced evidence regarding the particular 

“gun” the defendant used in the commission of the robbery. 

That “gun” was a toy gun; it was not a “firearm.” 

Additionally, the Commonwealth’s evidence established that 

this toy gun “looks like” a toy gun. A toy gun that looks 

like a toy gun logically does not also have the appearance of 

having the capability of an actual firearm. 

 Although not addressed by the majority here, in 

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

344 (1994), in construing Code § 18.2-53.1, this Court held 

that “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.” In that case, the robbery 

victim did not see a gun although she thought that the accused 

possessed a gun. Id. at 217, 441 S.E.2d at 343. No gun was 

ever recovered. Id. This Court expressly rejected the 

Commonwealth’s assertion that the evidence is sufficient to 

support a conviction under Code § 18.2-53.1 when the victim 

“is made to feel that an assailant has a firearm, and reacts 

in response to that perception.” Id. (emphasis in original). 

Yarborough clearly does not support the majority’s reasoning 

13
that the evidence was sufficient in the present case to 

support the defendant’s conviction under Code § 18.2-53.1 on 

the premise essentially that the defendant stated that he had 

a gun, the victim believed that he had a gun, and the victim 

was “very scared.” 

 In the final analysis, the majority is left to base its 

decision that the Commonwealth’s evidence in this case is 

sufficient to support the defendant’s conviction under Code 

§ 18.2-53.1 on the premise that the defendant had an 

“opportunity to discard an actual firearm” sometime prior to 

his arrest shortly after the robbery. Significantly, even the 

Commonwealth’s Attorney in that regard could only assert that 

“[the defendant] could have had a real gun for all we know.” 

In light of the Commonwealth’s evidence regarding the toy gun 

recovered by the police when the defendant was arrested, it is 

pure speculation that the defendant also had an actual firearm 

in addition to a toy gun and discarded only the former as he 

fled from the scene of the robbery. It is well-settled that 

speculation does not amount to the proof beyond a reasonable 

doubt which is required for a defendant to be convicted of a 

crime. 

It bears repeating that Code § 18.2-53.1, as pertinent 

here, prohibits the use or attempt to use any pistol, shotgun, 

rifle, or other firearm while committing robbery. In 

14
Holloman, which involved the use of a BB pistol, we held that 

an instrument which gives the appearance of having a firing 

capability is a “firearm” contemplated by Code § 18.2-53.1 

because the statute has two purposes; one of which is to 

discourage criminal conduct that produces fear of physical 

harm. Id. at 198-99, 269 S.E.2d at 358. And in Yarborough we 

expressly held that the Commonwealth must prove that the 

accused actually had such a firearm, as defined in Holloman, 

in his possession while committing robbery. 247 Va. at 218, 

441 S.E.2d at 343-44. The plain meaning of the language in 

Code § 18.2-53.1 evinces a legislative intent to include only 

the use or display of a pistol, shotgun, rifle or other 

firearm that gives the appearance of having the capability of 

firing a projectile. Our prior decisions have been consistent 

with that interpretation of this statute. 

 In sum, if a particular gun does not have the capability 

of firing a projectile and does not adequately resemble an 

actual gun, then such a gun does not come within our 

interpretation of Code § 18.2-53.1 in either Holloman or 

Yarborough. In the present case, there is direct evidence 

that the defendant while committing robbery possessed and used 

a toy gun which did not have the appearance of an actual 

firearm. There is no evidence the defendant possessed and 

used an actual firearm and at some point discarded that 

15
firearm. That the defendant stated to the victim of the 

robbery that he had a gun does not alter the fact that the gun 

he possessed was not an actual firearm. It was a toy. The 

evidence in this case falls far short of proof beyond a 

reasonable doubt that the toy gun adequately resembled an 

actual firearm and, thus, the evidence is insufficient to 

support the defendant’s conviction under Code § 18.2-53.1. 

 For these reasons, I would reverse the judgment of the 

Court of Appeals upholding the conviction of Courtney under 

Code § 18.2-53.1 and vacate that conviction. 

16