*549 Opinion
Jоhn Edward Sprouse (appellant) appeals from his bench trial conviction by the Circuit Court of Albemarle County (trial court) for use of a firearm during the commission of a robbery. At trial, appellant pleaded guilty to the robbery. Thе sole issue presented by this appeal is whether a toy pistol 1 constitutes a “pistol, shotgun, rifle or other firearm” within the meaning of Code § 18.2-53.1. For the reasons that follow, we reverse.
On October 5, 1992, an Albemarle County grand jury returned a bill сharging, “On or about July 29, 1992, in the County of Albemarle JOHN EDWARD SPROUSE did unlawfully and feloniously use a firearm in the commission of a felony. VIRGINIA CODE SECTION 18.2-53.1.”
Code § 18.2-53.1 provides:
Use or display of firearm in committing felony.—It shall be unlawful for any person to use or attempt to use any pistol, shotgun, rifle, or othеr firearm or display such weapon in a threatening manner while committing or attempting to commit robbery, ... as defined in § 18.2-51, .... Violation of this section shall constitute a separate and distinct felony ....
The evidence is not in dispute. On July 29, 1992, at аpproximately 2:30 p.m., Debbie Hayes (Hayes) was working as the manager of the Barracks Road Market (Barracks). Appellant entered the store, obtained a soda, and paid Hayes for it. As Hayes was handing appellаnt his change, appellant pulled out what appeared to be a gun and said, “This is a robbery.” Hayes, standing two tо three feet from appellant, believed that the gun was real. She was terrified and thought appellant would shoot and kill her if she did not obey his commands. Appellant told Hayes to give him the money in the cash register, including the monеy underneath the drawer. Hayes complied. Appellant then told Hayes if she did not want to get hurt, to move back and stay there until he left. Appellant pointed the gun at Hayes and followed her movement with the gun as she backed bеhind the deli counter in the rear of the *550 store. Appellant backed out of the door and left.
On August 3, 1992, a police officer encountered appellant with his car рarked in a lot three miles from Barracks. A black and silver toy pistol was found inside appellant’s car. The officer who found the gun said that he had to look at it twice before he realized it was a toy. The toy pistol was entеred as Exhibit 1, and the Commonwealth conceded that it was a toy pistol.
In
Holloman
v.
Commonwealth,
Pointing out the victim did not know what kind of pistol was being used, the Court said that a sensible victim of a holdup “acts on appеarances” and “is not required to know whether the gun pointed at him is loaded or whether it shoots bullets or blanks.” The Court noted that a toy pistol has been held sufficient to sustain a charge of robbery with a firearm.
Holloman,
The Holloman Court then said:
The statute not only is aimеd 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 apрearance of having a firing capability as from use of a weapon that actually has the capаcity 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; such victim cannot be required to distinguish between a loaded pistol and a spring gun when it is brаndished *551 during commission of a felony.
Id.
at 198,
Holloman,
a rape case, and the cases cited therein indicate that a robbery or rape conviсtion may be affirmed when the evidence discloses that the criminal act was performed by use of an object that appears to be a firearm and successfully intimidates or reasonably causes the victim to be in feаr of life or bodily harm. However, the Supreme Court in
Yarborough v. Commonwealth,
In
Yarborough,
the evidence disclosеd that Yarborough blocked the victim’s passage and told the victim, “This is a stickupf;] give me all your money.”
Id.
at 216,
Code § 18.2-53.1, a penal statute, must be strictly construed against thе Commonwealth and in favor of an accused. When so construed, we think that, to convict an accused of violating Code § 18.2-53.1, 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 attemрting to commit robbery or one of the other specified felonies.
Yarborough,
Thus, if an object is used to inflict fear or intimidatiоn to accomplish its purpose of rape or robbery, the fear or intimidation may be proved by showing that the victim had reason to believe the object was a firearm although, in fact, it was not a firearm. However, that dеfendant may not be convicted for the use of a firearm under Code § 18.2-53.1 unless the evidence discloses *552 beyond а reasonable doubt that the object used to cause the victim to reasonably believe it was a firearm was, in fact, a firearm.
Accordingly, pursuant to Yarborough, we reverse the judgment of the trial court and dismiss the charge.
Reversed and dismissed.
Benton, J., and Fitzpatrick, J., concurred.
Notes
The Commonwealth concedes that the “weapon” used in connection with the robbery was in fact a toy.