Startin v. Commonwealth

682 S.E.2d 115, 54 Va. App. 778, 2009 Va. App. LEXIS 394
CourtCourt of Appeals of Virginia
DecidedSeptember 8, 2009
DocketRecord 2837-08-4
StatusPublished
Cited by6 cases

This text of 682 S.E.2d 115 (Startin v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Startin v. Commonwealth, 682 S.E.2d 115, 54 Va. App. 778, 2009 Va. App. LEXIS 394 (Va. Ct. App. 2009).

Opinions

CLEO E. POWELL, Judge.

Duane Elmer Startin, Jr., appellant, appeals two convictions for use of a firearm during the commission of a felony, in violation of Code § 18.2-53.1. Appellant contends that the trial court erred in finding that the evidence was sufficient to prove that (1) the item appellant used during the commission of two robberies was a “firearm,” and (2) appellant used or attempted to use a firearm or displayed a firearm in a threatening manner. Finding no error, we affirm the trial court’s judgments and affirm appellant’s convictions.

I. BACKGROUND

On January 12, 2005, appellant entered a CVS Pharmacy, approached the pharmacy counter, and stated that he needed a bottle of Oxycontin. When the pharmacist asked appellant for his prescription, appellant lifted his shirt to reveal what looked like a black handgun tucked into the front of his pants. The clerk saw the gun but hesitated before appellant demanded that she “hurry up.” The pharmacist gave appellant a bottle of generic Oxycodone ER. Appellant left the store with the bottle.

Nine days later, appellant entered a different CVS Pharmacy and asked the pharmacist whether they stocked Oxycontin. When appellant learned that the pharmacy had Oxycontin, he grabbed an object that appeared to be a black handgun from his waistband and pointed it at the clerk. The clerk described the gun as an older model handgun but was unsure whether it was a pistol or revolver. When appellant ordered the pharmacist to give him the drugs, the pharmacist gave appellant one bottle containing one hundred pills.

After appellant was arrested, police recovered a “John Wayne Replica” .45 caliber handgun made by the Franklin Mint. This commemorative replica appears the same in size, [781]*781weight, and shape as the original firearm. This replica, however, does not include a firing pin or other mechanical device necessary to fire a projectile. Appellant told police that this was the object he used during the robberies.

Appellant 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, in violation of Code § 18.2-53.1. During his bench trial, appellant challenged whether the item he possessed met the definition of a firearm to support two convictions under Code § 18.2-53.1. As evidence against appellant in his trial for two counts of use of a firearm, the court admitted a document titled “Official Version of Offense” prepared by the Commonwealth for the Probation and Parole office and a diagram of the item possessed provided by the appellant. The “Official Version of Offense” 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.

The “Care and Handling Instructions” accompanying the diagram stated

You now own a non-firing replica of the Model M-1911 A1 U.S. Government Automatic Pistol John Wayne carried in most of his military films.
Used in all services from World War I to Viet Nam, this legendary “hand howitizer” was so effective, it was not retired until 1986—after 75 years of continuous service.
Although your re-creation will not permit chambering or firing of ammunition, proper handling is still important.
Here’s how to operate it:
To release the 7-round magazine, press the magazine catch (17 in the diagram) and allow it to free fall. To replace, re-insert it into the receiver in front of the lanyard ring (15), then slam it shut with the heal of your hand.
[782]*782Three different safety devices are provided: A safety lock (10) on the frame. A trigger disconnector, inside the receiver (20). And a grip safety (12) on the backstrap, which allows firing only if actually compressed while the trigger is being squeezed.
To operate, your non-firing re-creation, grip it as if to fire, but with your index finger at the side of the receiver, rather than on the trigger.
Next, use the thumb and forefinger of your non-shooting hand to grasp the slide (8) and pull it backward until it stops. Then let go and allow the recoil spring to carry it forward automatically. Do not ease the slide forward yourself.
To release the slide, push down the knurled area at the rear of the slide stop (6).
To help your replica retain its beauty and keep functioning properly, dust regularly and use a soft cloth to rub a good, three-in-one oil into its surface periodically. (Never remove the diamond grips (13) on either side of the receiver).
For safety’s sake, always keep your free hand away from moving parts.
And finally, never point a iveapon at a living person.

Upon a proffer of the evidence, the trial court convicted appellant of two counts of use of a firearm during the commission of a felony. This appeal follows.

II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE TO PROVE THAT THE ITEM APPELLANT USED IN THE COMMISSION OF THE ROBBERY WAS A FIREARM

Appellant relies on Sprouse v. Commonwealth, 19 Va.App. 548, 551-52, 453 S.E.2d 303, 305-06 (1995), to argue that a conviction under Code § 18.2-53.1 requires that the object displayed actually be a firearm and because the item he possessed was an inoperable, commemorative replica of a [783]*783firearm, he cannot be properly convicted of using a firearm during the commission of a felony. The Commonwealth responds that Code § 18.2-53.1 “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 v. Commonwealth, 221 Va. 196, 198, 269 S.E.2d 356, 358 (1980). Because the trial court found that appellant’s commemorative replica firearm “appear[ed] to be an operational firearm designed to expel forty-five caliber ammunition,” the Commonwealth contends that the replica firearm was indeed a firearm for the purpose of Code § 18.2-53.1.

To support a conviction under Code § 18.2-53.1, the Commonwealth must prove

(1) that the accused “possessed” an object; (2) that this object was a “pistol, shotgun, rifle, or other firearm”; (3) that the accused “used or attempted to use the firearm or displayed the firearm in a threatening manner”; and (4) this action involving the firearm occurred during the commission or attempt to commit one of the felonies enumerated in the statute.

Thomas v. Commonwealth, 25 Va.App. 681, 684-85, 492 S.E.2d 460, 462 (1997) (citing Yarborough v. Commonwealth, 247 Va.

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Related

Startin v. Com.
706 S.E.2d 873 (Supreme Court of Virginia, 2011)
Startin v. Commonwealth
690 S.E.2d 310 (Court of Appeals of Virginia, 2010)
Brailey v. Commonwealth
686 S.E.2d 546 (Court of Appeals of Virginia, 2009)

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Bluebook (online)
682 S.E.2d 115, 54 Va. App. 778, 2009 Va. App. LEXIS 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/startin-v-commonwealth-vactapp-2009.