PRESENT: Kinser, C.J., Lemons, Goodwyn, Millette, and Mims,
JJ., and Carrico and Russell, S.JJ.
RUSSELL ERNEST SMITH, JR.
OPINION BY
v. Record No. 102398 SENIOR JUSTICE CHARLES S. RUSSELL
November 4, 2011
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal presents the question whether the evidence was
sufficient to support a conviction of "willfully and
intentionally making a materially false statement" on a form
executed in connection with the purchase of a firearm in
violation of Code § 18.2-308.2:2(K).
Facts and Proceedings
The material facts are undisputed. On June 12, 2006,
Russell Ernest Smith, Jr. (Smith) was arrested in the City of
Newport News on a felony warrant charging him with possession of
marijuana with intent to distribute. The general district court
continued the case several times while Smith remained free on
bond, having waived preliminary hearing. On September 18, 2007,
Smith’s counsel sent him a letter informing him that his
marijuana case was "certified to the Grand Jury" and "will be
set for trial on term day" which would be held on November 13.
Counsel further stated that he would advise Smith of the trial
date when it had been set and invited Smith to call if he had
any questions. On November 7, before term day, counsel wrote a
second letter to Smith stating: "This letter is to advise you
that your trial date has been pre-set for January 11, 2008 at
10:00 a.m. in the Newport News Circuit Court. Your presence is
required in court on that date." Counsel appended a handwritten
note to the letter: "Please give me a call to discuss case."
Smith failed to call his counsel as requested.
On November 13, 2007, the grand jury in the City of Newport
News indicted Smith for possession of marijuana with intent to
distribute. Two days later, on November 15, Smith entered a
pawnshop in the adjacent City of Hampton and applied for the
purchase of a .40 caliber semi-automatic pistol. As required by
law, he filled out and signed a form prepared by the Bureau of
Alcohol, Tobacco, Firearms and Explosives of the United States
Department of Justice (the ATF form). The form contained
warnings that violations of the gun laws and making a false
statement on the form were crimes punishable as felonies.
Question 11(b) on the form asked: "Are you under indictment or
information in any court for a felony, or any other crime, for
which the judge could imprison you for more than one year? (An
information is a formal accusation of a crime by a prosecutor.
See definition 3.)" (Emphasis in original.) Smith wrote "No"
in answer to this question. The record contains no evidence
that Smith, when executing the ATF form, was aware that the
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Newport News grand jury had returned an indictment against him
two days earlier.
An officer of the Virginia State Police made a routine
check of Smith’s criminal history before the gun purchase could
be completed. He discovered the recent Newport News indictment
and reported it to the pawnshop proprietor, who cancelled the
sale. The officer obtained a warrant for Smith’s arrest on a
charge of making a false statement on a firearm purchase form in
violation of Code § 18.2-308.2:2.
Smith was indicted for this offense in the Circuit Court of
the City of Hampton. At a bench trial, the Commonwealth
introduced the ATF form, the Newport News indictment, documents
establishing Smith’s identity and the testimony of both the
pawnshop proprietor and the officer who had examined Smith’s
records. The Commonwealth then rested, and the defense made a
motion to strike the evidence, which the court denied. Smith
then testified in his own defense. On direct examination, Smith
testified that he was unaware of the Newport News indictment
when he signed the ATF form and that it had first been shown to
him only three days before trial. Smith stated that he
understood only that he had been charged with a felony, that his
counsel was going to get a trial date set, and that a trial date
was then set for January. Smith testified that he was
unfamiliar with the criminal justice system, never having been
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arrested before the marijuana case, and that he had no legal
training. On cross-examination, Smith testified the he did not
know what the term "indictment" meant when he executed the ATF
form.
Both parties rested, and defense counsel made a renewed
motion to strike the evidence, which the court denied. The
court ultimately found Smith guilty, stating: "I think the
evidence shows that he knew what was going on." Smith appealed
his conviction to the Court of Appeals. A divided panel
affirmed. Smith v. Commonwealth, 56 Va. App. 166, 692 S.E.2d
265 (2010). The Court granted a rehearing en banc and again
affirmed, with two judges joining in a separate concurring
opinion. Smith v. Commonwealth, 57 Va. App. 319, 701 S.E.2d 826
(2010). We awarded Smith an appeal.
Analysis
On appeal, where there is a challenge to the sufficiency of
the evidence, we review the evidence in the light most favorable
to the prevailing party, including any inferences the factfinder
may reasonably have drawn from the facts proved. The judgment
of the trial court is presumptively correct and will not be set
aside unless it is plainly wrong or without evidence to support
it. Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28
(2005). Nevertheless, when an appeal presents the question
whether the facts proved, and the legitimate inferences drawn
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from them, fall within the language of a statute, we must
construe statutory language to answer the question. That
function presents a pure question of law which we consider de
novo on appeal. Phelps v. Commonwealth, 275 Va. 139, 141, 654
S.E.2d 926, 927 (2008).
Code § 18.2-308.2:2(K) provides:
Any person willfully and intentionally making a
materially false statement on the consent form
required in subsection B or C or on such
firearm transaction records as may be required
by federal law, shall be guilty of a Class 5
felony.
It is undisputed that the ATF form is one required under this
statute and that Smith’s answer to question 11(b) on that form
was, in fact, false. The sole question remaining is whether
Smith made this false statement "willfully and intentionally" so
as to bring it within the statute under which he was convicted.
Because the statute employs the two adverbs conjunctively, both
words together define an element of the crime. Stated
differently, if the Commonwealth fails to prove beyond a
reasonable doubt that the defendant’s conduct was both willful
and intentional, the evidence is insufficient to support a
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conviction. To answer the question presented by this appeal, it
suffices to focus upon the word "intentionally." 1
"Intentional" is defined as: "Determination to act in a
certain way or to do a certain thing." Black’s Law Dictionary
810 (6th ed. 1990). The adverb "intentionally" is defined as:
"To do something purposely and not accidentally." Id.
We presume that the General Assembly, in framing a statute,
chose its words with care. Halifax Corp. v. First Union Nat'l
Bank, 262 Va. 91, 100, 546 S.E.2d 696, 702 (2001). When
statutory terms are plain and unambiguous, we apply them
according to their plain meaning without resorting to rules of
statutory construction. Id. at 99-100, 546 S.E.2d at 702. We
perceive no ambiguity in the word "intentionally." By coupling
it with "willfully," the General Assembly removed any ambiguity
that would have resulted from the use of "willfully" alone. By
using the two words in conjunction, it is clear that the General
Assembly intended to impose upon the Commonwealth a very strict
standard of scienter in prosecutions for violations of Code
§ 18.2-308.2:2(K).
1
"Willfully"
is a word of many meanings whose construction
often depends upon context. Bryan v. United States, 524 U.S.
184, 191 (1998). Judge Learned Hand has been quoted as
observing, off the bench: " 'willfully' . . . It's an awful
word! It is one of the most troublesome words in a statute that
I know." See United States v. Hayden, 64 F.3d 126, 129, n.5 (3d
Cir. 1995).
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The Court of Appeals, in the majority opinion en banc,
applied the federal standard which holds, in regard to a cognate
– but importantly different – federal offense, that "the
scienter element is satisfied by actual knowledge of the
statement's falsity as well as any 'deliberate disregard for its
truth or falsity with a conscious purpose to avoid learning the
truth.' " 57 Va. App. at 325, 701 S.E.2d at 828-29 (quoting in
part from United States v. Hester, 880 F.2d 799, 802 (4th Cir.
1989)). While that analysis may be valid in other contexts, 2 we
do not agree with the Court of Appeals’ conclusion that it
applies under the strict scienter requirement the General
Assembly has adopted in Code § 18.2-308.2:2(K). We construe
that section to require the Commonwealth to prove, beyond a
reasonable doubt, as an element of the crime, that the defendant
had actual knowledge that his statement was false when he made
it. There must be evidence to support a finding that he knew
the truth but nevertheless intended to, and did, utter a
falsehood.
Applying those principles to the present case, it is
apparent that the evidence was sufficient to support the trial
2
The federal statute on which Hester and the decisional
authorities it surveys are based, 18 U.S.C. § 922(a)(6), makes
it a crime to "knowingly" make a false statement on an ATF form.
Congress did not choose to adopt the stricter "willfully and
intentionally" standard contained in the Virginia statute.
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court’s finding that Smith "knew what was going on." He knew
that he had been charged with a felony and that the case had
been set for trial. That finding, however, was insufficient to
support a conviction under the statute. Suspicion, even
probability, of guilt is not sufficient to support a conviction.
The Commonwealth has the burden of proving every element of the
offense beyond a reasonable doubt. O’Dell v. Commonwealth, 234
Va. 672, 698-99, 364 S.E.2d 491, 506 (1988). There was no
evidence to support a finding that Smith knew that he had been
indicted when he signed the ATF form. The Commonwealth thus
failed to prove an element of the crime.
Conclusion
For the reasons stated, we hold that the circuit court
erred in denying Smith’s motion to strike the evidence and that
the Court of Appeals erred in affirming the conviction.
Accordingly, we will reverse the judgment of the Court of
Appeals and enter final judgment here vacating the conviction
and dismissing the indictment.
Reversed and final judgment.
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