PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.
DEENA ANNE ESTEBAN OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
v. Record No. 022524 October 31, 2003
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
The dispositive question in this criminal appeal is whether
the statute proscribing possession of a firearm on school
property is one of strict criminal liability, or whether proof
of mens rea or scienter is required to support a conviction for
its violation.
Code § 18.2-308.1(B), as pertinent here, provides that
"[i]f any person possesses any firearm designed or intended to
expel a projectile . . . while such person is upon . . . any
public . . . elementary . . . school, including buildings and
grounds, . . . he shall be guilty of a Class 6 felony."
Indicted by a grand jury in Prince William County for
violation of the foregoing statute, defendant Deena Anne Esteban
was tried by a jury in October 2000. During the trial, the
court refused to grant an instruction tendered by the defendant
requiring the Commonwealth to prove mens rea or scienter. The
court ruled "that this is a strict liability crime." The
defendant was found guilty and sentenced to a suspended term of
incarceration plus a fine.
Upon review, a panel of the Court of Appeals of Virginia,
one judge dissenting, affirmed the conviction in an unpublished
order and opinion. Esteban v. Commonwealth, Record No. 0028-01-
4 (August 27, 2002). The Court of Appeals stated: "Assuming,
but not deciding, that a mens rea instruction regarding whether
Esteban knowingly possessed the firearm should have been given,
we find any error in the trial court's failure to [so] instruct
the jury to be harmless."
We awarded the defendant this appeal limited to
consideration of the harmless error issue and to the claim that
the Court of Appeals erred "in not holding that mens rea is an
element of Code § 18.2-308.1[(B)]." In the view we take of the
case, the only issue we need discuss is the mens rea question.
The facts are uncomplicated. In our summary, when there
are conflicting facts, we shall recite them in the light most
favorable to the defendant. This is in accord with the settled
rule of appellate procedure that "[w]hen reviewing a trial
court's refusal to give a proffered jury instruction, we view
the evidence in the light most favorable to the proponent of the
instruction." Commonwealth v. Vaughn, 263 Va. 31, 33, 557
S.E.2d 220, 221 (2002). See Commonwealth v. Leal, 265 Va. 142,
145, 574 S.E.2d 285, 287 (2003).
On March 6, 2000, a Monday, a teacher in a public
elementary school in Prince William County discovered a zippered
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yellow canvas bag on her classroom floor about 1:30 p.m. The
bag contained a loaded .38 caliber revolver, as well as other
items, belonging to the defendant.
The bag had been left there by the defendant, employed by
the school system as an art teacher. She had come to the room
earlier that day to teach the students, most of whom were in
wheelchairs due to physical handicaps.
According to the defendant, she had removed numerous items
from the bag on the previous Saturday, placed the gun in the
bag, and took "it down to the store with me." Upon returning to
her home from shopping, she placed the bag in a closet without
removing the gun.
On Monday, the day of the incident, defendant took the
yellow bag, along with a portfolio case and a book bag, to the
school. She usually carried in the bag small tools, which she
used in her instruction to fourth-grade students. As she
entered the classroom, she carried the yellow bag containing the
revolver and a number of teaching aids. Later, as defendant
left the classroom, she took the teaching aids but left the
yellow bag.
When confronted with the presence of the gun in the bag on
school property, defendant said, "I don't usually carry the bag.
I forgot it was in there. I had been using it over the
weekend." Defendant maintained there was nothing about the bag
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that led her to believe the firearm was inside. However, she
did not dispute that she was in possession of the bag and thus
the revolver.
At trial, the instruction in issue would have required the
Commonwealth to prove that defendant "knew she possessed the
firearm." The defendant contends the trial court erred in
refusing the instruction because, she argues, mens rea is an
element of this statutory offense.
In support of her argument, the defendant refers to Code
§ 1-10, which provides that the common law of England, "insofar
as it is not repugnant to the principles of the Bill of Rights
and Constitution of this Commonwealth, shall continue in full
force within the same, and be the rule of decision, except as
altered by the General Assembly." See Weishaupt v.
Commonwealth, 227 Va. 389, 399-400, 315 S.E.2d 847, 852 (1984).
The defendant relies upon the proposition, set forth in
Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755
(1974), that a statute must be "read along with the provisions
of the common law, and the latter will be read into the statute
unless it clearly appears from express language or by necessary
implication that the purpose of the statute was to change the
common law." This is because the General Assembly "is presumed
to have known and to have had the common law in mind in the
enactment of a statute." Id.
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Continuing, the defendant relies upon the following
statement in Parrish v. Commonwealth, 81 Va. 1, 14 (1884), that
"whenever a statute makes any offence [a] felony, it
incidentally gives it all the properties of a felony at common
law." The defendant points out that the requirement of some
mens rea for a crime was deeply embedded in the common law, and
that the existence of a mens rea is the rule of, rather than the
exception to, the principles of Anglo-American criminal
jurisprudence, citing Staples v. United States, 511 U.S. 600,
605 (1994).
Thus, defendant contends, because the offense charged here
is a felony, mens rea must be read into the statute as an
element of the offense, even though the statute does not include
an express mens rea element. We do not agree with defendant.
At the outset, it should be recognized that Code § 18.2-
308.1 is purely a statutory offense, there being no equivalent
common law crime. And, as the Attorney General points out, the
defendant does not argue that the General Assembly could not
have dispensed with a mens rea element in enacting § 18.2-
308.1(B); she merely argues that it did not do so.
Additionally, the law is clear that the legislature may
create strict liability offenses as it sees fit, and there is no
constitutional requirement that an offense contain a mens rea or
scienter element. Maye v. Commonwealth, 213 Va. 48, 49, 189
5
S.E.2d 350, 351 (1972). Thus, courts construe statutes and
regulations that make no mention of intent as dispensing with it
and hold that the guilty act alone makes out the crime.
Morissette v. United States, 342 U.S. 246, 256, 258 (1952);
Makarov v. Commonwealth, 217 Va. 381, 385-86, 228 S.E.2d 573,
575-76 (1976) (statute on its face did not support contention
that a mens rea or scienter requirement should be read into the
enactment).
In the final analysis, the issue whether mens rea or
scienter is a necessary element in the indictment and proof of a
particular crime becomes a question of legislative intent to be
construed by the court. United States v. Balint, 258 U.S. 250,
251-52 (1922).
A statute must be construed with reference to its subject
matter, the object sought to be attained, and the legislative
purpose in enacting it; the provisions should receive a
construction that will render it harmonious with that purpose
rather than one which will defeat it. Stanley v. Tomlin, 143
Va. 187, 195, 129 S.E. 379, 382 (1925).
Clearly, the intent underlying Code § 18.2-308.1(B) is to
assure that a safe environment exists on or about school
grounds. Manifestly, the General Assembly recognized that the
presence of a loaded revolver on school property creates great
dangers for students, teachers, and other school personnel,
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either from the accidental or intentional discharge of the
weapon. The fact that a person, under the circumstances of this
case, innocently brings a loaded revolver onto school property
does not diminish that danger.
Thus, to insert a mens rea element into the offense, and to
require proof thereof, would defeat the statutory purpose, which
is to criminalize the introduction of firearms into a school
environment. So we will not add, by implication, language to
the statute that the legislature expressly has chosen not to
include.
Consequently, we hold that the trial court correctly
decided, in refusing the instruction in question, that this
statute is one of strict criminal liability, and that the
Commonwealth was required to prove only that the defendant had
possessed, on school property, a firearm of the type described
in the statute. ∗
Accordingly, the judgment of the Court of Appeals will be
affirmed because it reached the correct result, albeit for the
wrong reason. See Mitchem v. Counts, 259 Va. 179, 191, 523
S.E.2d 246, 253 (2000).
∗
As an aside, we mention that defendant had been granted a
concealed handgun permit. However, Code § 18.2-308(O) provides
that such a permit "shall not thereby authorize the possession
of any handgun . . . on property or in places where such
possession is otherwise prohibited by law."
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Affirmed.
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