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ADKINS v. COMMONWEALTH OF VA


ADKINS v. COMMONWEALTH
OF VA


APRIL 21, 1998
Record No. 0771-97-3

BARBARA FAYE ADKINS

v.

COMMONWEALTH OF VIRGINIA

OPINION BY JUDGE SAM W. COLEMAN III
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY

William N. Alexander, II, Judge
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia

Charles J. Strauss (H. Victor Millner, Jr., P.C., on brief),
for appellant.

Steven A. Witmer, Assistant Attorney General (Richard Cullen,
Attorney General, on brief), for appellee.


Barbara Faye Adkins was convicted in a bench trial for making
a materially false statement on a criminal background
investigation consent form required of prospective firearm
purchasers by Virginia law, in violation of Code ? 18.2?308.2:2(K). The
sole issue on appeal is whether Code ? 18.2?308.2:2(K)
required the Commonwealth to prove that the false statement on
the form was made in the course of a transaction with a federally
licensed firearms dealer. For the reasons that follow, we affirm
the conviction.

Adkins attempted to purchase a Raven .25 pistol from Old
Dominion Gun and Tackle (Old Dominion). Cleve Easom, an employee
of Old Dominion, required Adkins to complete the requisite
criminal background investigation consent form, Virginia State
Police Form SP?65. In response to the question: "Have you
ever been convicted of a felony?" Adkins wrote
"No." At trial, Adkins conceded she had been convicted
of a felony at the time she completed Form SP?65.

Code ? 18.2?308.2:2(K)
provides that "[a]ny person willfully and intentionally
making a materially false statement on the consent form required
in subsection B or C shall be guilty of a Class 5 felony."
Subsections (B) and (C) of Code ? 18.2?308.2:2 impose
the duty upon a firearms "dealer" to obtain consent
from a prospective purchaser to perform a criminal background
investigation using Virginia State Police Form SP?65 in order to
determine whether the prospective purchaser is permitted by
Virginia law to carry a firearm. Code ? 18.2?308.2:2(G), in
turn, defines a "dealer" as "any person licensed
as a dealer pursuant to 18 U.S.C. ? 921 et seq."
Conceding that she made a materially false statement on the
consent form when attempting to procure a firearm, Adkins
contends the Commonwealth was required to prove not only that the
false statement was made on the criminal background consent form
but also that such statement was made to a federally licensed
firearms "dealer." As a result, she argues, the
evidence is insufficient to support her conviction under Code ? 18.2?308.2:2(K)
because the Commonwealth failed to prove that either Easom or Old
Dominion was a federally licensed firearms "dealer." We
disagree.

"Where the language of a statute is clear and
unambiguous, we are bound by the plain statement of legislative
intent." Commonwealth v. Meadows, 17 Va. App. 624,
626, 440 S.E.2d 154, 155 (1994). We must "take the words as
written" in Code ? 18.2?308.2:2(K)
and give them their plain meaning. Birdsong Peanut Co. v.
Cowling
, 8 Va. App. 274, 277, 381 S.E.2d 24, 26 (1989). In
plain and unambiguous terms, Code ? 18.2?308.2:2(K)
requires only that an accused make the false statement "on
the consent form [that dealers must use pursuant to subsection
(B) or (C)]." The statute does not require proof that a
transaction with a federally licensed dealer occur; the gravamen
of the offense is the making of a false statement on the
specified form, which is a consent form a dealer is required to
obtain. No language in the statute requires the Commonwealth to
prove that the accused made the false statement to a federally
licensed dealer or in the course of a transaction with a
federally licensed firearms "dealer." A false statement
by a prospective purchaser on the consent form for the purpose of
purchasing a firearm in Virginia falls squarely within the plain
terms of subsection (K). If the legislature had intended to
forbid only those misrepresentations that are made to licensed
dealers, it could have expressed that intent in the language of
Code ? 18.2?308.2:2(K).

"In construing statutes, courts should give the fullest
possible effect to the legislative intent embodied in the entire
statutory enactment." Virginia Real Estate Bd. v. Clay,
9 Va. App. 152, 157, 384 S.E.2d 622, 625 (1989). "Code ? 18.2?308.2:2 is part
of a statutory scheme reflecting a legislative purpose to
interdict the availability and use of firearms by persons
previously convicted of felony offenses." Mayhew v.
Commonwealth
, 20 Va. App. 484, 490?91, 458 S.E.2d 305, 308
(1995). Construing Code ? 18.2?308.2:2(K)
to require proof of a transaction with a licensed dealer adds
nothing that effectuates the purpose of the statute. The statute
proscribes every convicted felon’s intentional misrepresentation
of his or her status on the specified consent form without
regard to whether the form is prepared for or submitted to a
federally licensed "dealer." See id.
(recognizing that duly licensed firearms dealers are "primary
source of firearms lawfully sold," not sole source (emphasis
added)).

To adopt Adkins’ construction of the statute would add an
element to the offense defined by the plain language of
subsection (K). Furthermore, her construction would contravene
the statute’s purpose by allowing convicted felons to
misrepresent their status on the required consent form if
perchance the seller is not a legally licensed firearms
"dealer." "[A] statute should . . . be
given a reasonable construction which will effect rather than
defeat a legislative purpose evident from the history of the
legislation." Ambrogi v. Koontz, 224 Va. 381, 389,
297 S.E.2d 660, 664 (1982). The purpose of Code ? 18.2?308.2:2 is not
to ensure that criminal background consent forms are used only by
federally licensed "dealers"; rather, it strives to
prevent convicted felons from procuring firearms by requiring
that the applicant file a form certifying that he or she is not a
felon and consenting to a background check.

Accordingly, we hold that under Code ? 18.2?308.2:2(K), the
Commonwealth was not required to prove that Adkins made a
materially false statement on the consent form to a federally
licensed firearms "dealer." Because the evidence proved
that Adkins intentionally made a materially false statement that
she was not a convicted felon "on the form required by
subsection B or C" when attempting to procure a firearm, we
affirm the conviction.

Affirmed.

 

 

Benton, J., dissenting.

In accordance with well established principles, "penal
statutes must be strictly construed against the Commonwealth and
applied only to those cases clearly falling within the language
of the statute." Branch v. Commonwealth, 14 Va. App.
836, 839, 419 S.E.2d 422, 425 (1992). "Such statutes may not
be extended by implication; . . . [a]nd the
accused is entitled to the benefit of any reasonable doubt about
the construction of a penal statute." Martin v.
Commonwealth
, 224 Va. 298, 300?01, 295 S.E.2d 890, 892
(1982).

Code ? 18.2?308.2:2(K)
provides that "[a]ny person willfully and intentionally
making a materially false statement on the consent form
required in subsection B or C
shall be guilty of a Class 5
felony." (Emphasis added). The phrase "required in
subsection B or C" modifies the words "consent
form." Thus, the statute explicitly links the consent form
to a required use in a dealer transaction as described in Code ? 18.2?308.2:2(B) or
(C).[1] "Dealer" is
statutorily defined to mean "any person licensed as a dealer
pursuant to 18 U.S.C. ? 921
et seq." Code ? 18.2?308.2:2(G).

When proscribing the making of a materially false statement on
"the consent form required in subsection B or C," Code ? 18.2?308.2:2(K)
clearly delimits the prohibited conduct by reference to the use
to be made of the form. In another case involving Code ? 18.2?308.2:2(K),
this Court gave particular emphasis to the modifying word,
"’required.’" Brooks v. Commonwealth, 19
Va. App. 563, 566, 454 S.E.2d 3, 4 (1995). In so doing, the Court
noted the following:

Well established "principles of statutory construction
require us to ascertain and give effect to the legislative
intent." "Where the language of a statute is clear and
unambiguous, we are bound by that plain
statement . . . ." "[W]ords and
phrases used in a statute should be given their ordinary and
usually accepted meaning unless a different intention is fairly
manifest." "Criminal statutes are to be ‘strictly
construed against the Commonwealth and in favor of [a] citizen’s
liberty.’ . . . A penal statute must be construed so as
to proscribe only conduct which the legislature clearly intended
to be within the statute’s ambit."

Id. at 566, 454 S.E.2d at 4?5 (citations omitted).

If the legislature had intended to proscribe the making of a
materially false statement on the form which is provided by the
Department of State Police, it would have done so by prohibiting
a materially false statement on a consent form of the type
specified in Code ? 18.2?308.2:2(A).[2]
Contrary to the clear wording of the statute, the majority
interprets Code ? 18.2?308.2:2(K)
to prohibit a materially false statement on a consent form as
specified in Code ? 18.2?308.2:2(A).
The statute does not read in that fashion. That interpretation of
the statute only arises by implication and by reading out of the
statute what is explicitly contained in it.

Because the evidence failed to prove that, in a transaction
with a "dealer," Barbara Faye Adkins made the
statements "on the consent form required in subsection B or
C" of Code ? 18.2?308.2:2,
I would reverse the conviction.

 

 

 

FOOTNOTES:

[1] In pertinent part, subsection
(B) reads as follows:

1. No dealer shall sell, rent, trade or transfer from his
inventory any such firearm to any other person who is a resident
of Virginia until he has (i) obtained written consent as
specified in subsection A, and provided the Department of State
Police with the name, birth date, gender, race, and social
security and/or any other identification number and the number of
firearms by category intended to be sold, rented, traded or
transferred and (ii) requested and received criminal history
record information by a telephone call to the State Police.

Code ? 18.2?308.2:2(B)(1).
The pertinent provision of subsection (C) reads as follows:

No dealer shall sell, rent, trade or transfer from his
inventory any firearm, other than a rifle or a shotgun, to any
person who is not a resident of Virginia unless he has first
obtained from the Department of State Police a report indicating
that a search of all available criminal history record
information has not disclosed that the person is prohibited from
possessing or transporting a firearm under state or federal law.
The dealer shall obtain the required report by mailing or
delivering the written consent form required under subsection A
to the State Police within twenty?four hours of its execution.

Code ? 18.2?308.2:2(C).

[2]
Code ? 18.2?308.2:2(A)
reads as follows:

Any person purchasing from a dealer a firearm as herein
defined shall consent in writing, on a form to be provided by the
Department of State Police, to have the dealer obtain criminal
history record information. Such form shall include only, in
addition to the information required by subdivision B 1, the
identical information required to be included on the firearms
transaction record required by regulations administered by the
Bureau of Alcohol, Tobacco and Firearms of the U.S. Department of
the Treasury, except that the copies of such forms mailed or
delivered to the Department of State Police shall not include any
information related to the firearm purchased or transferred.

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