COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Bumgardner
Argued at Salem, Virginia
BARBARA FAYE ADKINS
OPINION BY
v. Record No. 0771-97-3 JUDGE SAM W. COLEMAN III
APRIL 21, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF PITTSYLVANIA COUNTY
William N. Alexander, II, Judge
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."
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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
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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";
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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.
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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
1
(C). "Dealer" is statutorily defined to mean "any person
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
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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
(..continued)
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).
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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
2
specified in Code § 18.2-308.2:2(A). 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
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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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.
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