COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Benton and Elder
Argued at Richmond, Virginia
TIMOTHY LEON RICHARDSON
v. Record No. 0414-94-2 OPINION BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA SEPTEMBER 26, 1995
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
Andrea C. Long (Charles C. Cosby, Jr; Boone,
Beale, Carpenter & Cosby, on brief), for
appellant.
Kathleen B. Martin, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.
Timothy Leon Richardson appeals his bench trial conviction
for making a willfully and intentionally "material false
statement" on a form required by Code § 18.2-308.2:2 for the
purchase of a firearm. He argues (1) that the question to which
he answered incorrectly "no", was not a material question, (2)
that the evidence was insufficient to prove that he "willfully
and intentionally" made the false statement on the application
form, and (3) that he could not be convicted of violating Code
§ 18.2-308.2:2 because the evidence was insufficient to prove
that the firearm which he attempted to purchase was capable of
firing a projectile. We disagree and affirm Richardson's
conviction.
The evidence presented at trial showed that on April 29,
1993, Richardson appeared before the Henrico County General
District Court for a preliminary hearing on a felony charge of
rape. His case was certified to the circuit court for
consideration by a grand jury, and a trial date was set, in the
event that the grand jury indicted Richardson, for June 16, 1993.
On May 10, 1993, a grand jury indicted Richardson for rape.
On May 17, 1993, Richardson attempted to purchase a firearm
at Richmond Bowhunting and Archery Supply. Pursuant to Code
§ 18.2-308.2:2, Richardson was required to fill out a "Virginia
Firearms Transaction Record," a form which authorizes a firearms
dealer to obtain from the Virginia State Police criminal history
record information about the purchaser. Richardson, who wanted
to buy a .38 caliber pistol, completed the form in the store
owner's presence. He answered in the negative questions "8 (a)"
and "(b)," which asked if the purchaser was "under indictment for
a felony in any court, or for a crime punishable by imprisonment
for a term exceeding one year," and if the purchaser had "been
convicted in any court of a felony or a crime punishable by
imprisonment for a term exceeding one year." By signing the
form, Richardson certified that the answers he gave were "true
and correct," that he understood an affirmative response to any
of the questions in subpart "8" would prohibit him from
purchasing and/or possessing a firearm, and that "the making of
any false oral or written statement" regarding the transaction
was a felony.
After checking Richardson's criminal history record
information, State Police did not approve Richardson's firearm
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purchase and later charged him with violating § 18.2-308.2:2 for
willfully and intentionally making a false statement on the
consent form for buying a firearm. At Richardson's trial on the
firearm consent form charge, Special Agent Taylor Roland Blanton
testified that on May 20, 1993, he interviewed Richardson at his
home about Richardson's attempted firearm purchase. Blanton
stated that when he asked Richardson whether he knew that he had
been indicted, Richardson responded affirmatively. Blanton then
asked him why he answered "no" to the questions. Richardson's
excuse was that he did not read the questions.
Richardson testified on his own behalf at trial. He stated
that at the time he filled out the firearm consent form, he knew
that he had a trial coming up in June for the felony charge of
rape, but because he had not been convicted did not think it was
against the law for him to purchase a firearm. While Richardson
admitted that he knew what it meant to be "charged," he denied
that he had knowledge that he had been indicted or that he knew
what it meant to be "indicted." Richardson further testified
that he had only glanced over the form and did not read the
questions addressed to him.
At the close of the Commonwealth's case, Richardson moved to
strike the evidence, arguing that the Commonwealth had failed to
prove that his statement on the form was a "material" false
statement because no evidence proved that the decision to reject
Richardson's application on the basis of the false answer was
made under federal law, as opposed to state law. Richardson
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argued that the State Police's function in reviewing firearm
application forms is to determine if the applicant may lawfully
possess a firearm, and that while under some circumstances
federal law prohibits a person under indictment from possessing a
firearm, no state law prohibits possession of a firearm by a
person under indictment. Richardson also moved to strike on the
basis that the Commonwealth had failed to prove either that he
had "willfully and intentionally" made a false statement on the
consent form or that he attempted to purchase a "firearm" as
defined in Code § 18.2-308.2:2.
I. Materiality
We first address Richardson's contention that he did not
make a "material" false statement on the consent form. We hold
that even though no state law prohibits possession of a firearm
by a person under indictment, as a matter of law Richardson made
a "material" false statement in violation of Code § 18.2-308.2:2,
and that the Commonwealth was not required to prove the reason
why or the law under which Richardson's firearm's application was
denied.
Code § 18.2-308.2:2(A) provides that:
[a]ny person purchasing from a dealer a firearm . . .
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 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.
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(Emphasis added). "In pertinent part, the referenced federal
`firearms transaction record,' ATF Form 4473, asks: `Are you
under indictment or information[] in any court for a crime
punishable by imprisonment for a term exceeding one year?'"
Brooks v. Commonwealth, 19 Va. App. 563, 566, 454 S.E.2d 3, 4
(1995). A willful and intentional material false statement on
the consent form "required" by the statute constitutes a Class 5
felony. Code § 18.2-308.2:2(K). It is clear, therefore, that
Code § 18.2-308.2:2, alone, mandates that an applicant truthfully
respond to the consent form questions which he is required to
answer or face the possibility of criminal prosecution.
We distinguish Richardson's case from Brooks. Brooks'
conviction was reversed because Brooks, who also answered "no" to
question "8 (a)" falsely, had only been charged, but not
indicted, at the time of the attempted firearm's purchase. 19
Va. App. at 565, 454 S.E.2d at 5. We held that because
"[n]either Code § 18.2-308.2:2(B)(1) nor the referenced federal
ATF form 4473 and attendant regulations require information from
a prospective firearm purchaser pertaining to criminal charges,"
such information was not "required" on the consent form, and was
not subject to criminal sanctions of Code § 18.2-308.2:2(K). Id.
In this case, the information pertaining to Richardson's
criminal indictment was clearly required by the statute. Thus,
by answering question "8 (a)" falsely, Richardson was subject to
criminal sanctions under Code § 18.2-308.2:2(K). 1
1
Even if we agreed with Richardson's contention that he
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II. Willful and Intentional
Willful, when used in a criminal statute, "generally means
an act done with a bad purpose; without justifiable excuse . . .
. The word is also employed to characterize a thing done without
ground for believing it is lawful. . . ." Snead v. Commonwealth,
11 Va. App. 643, 646, 400 S.E.2d 806, 807 (1991). "Intent may,
and most often must, be proven by circumstantial evidence and the
reasonable inferences to be drawn from proven facts that are
within the province of the trier of fact." Fleming v.
Commonwealth, 13 Va. App. 349, 353, 412 S.E.2d 180, 183 (1991).
Special Agent Blanton testified that Richardson told him
that he was attempting to purchase the gun for an under-aged
friend. When Blanton informed Richardson that such a purchase
was a felony, Richardson admitted that he was buying the gun for
himself. Richardson also told Blanton that he knew he was under
indictment. Furthermore, before filling out the firearm's
application, Richardson had signed an agreement setting his
felony case for trial. This agreement specified that appellant
was charged with a felony and would go to trial if he were
could not be convicted because the Commonwealth failed to put on
evidence pertaining to the correct federal law under which his
application was denied, we would affirm his conviction because
federal law precludes a person from purchasing a firearm if he is
under indictment. See 18 U.S.C. § 922(d). At trial, in support
of its position, the Commonwealth mistakenly relied on 18 U.S.C.
§ 922(n). The fact that the Commonwealth did not rely on the
applicable statute, i.e., 18 U.S.C. § 922(d), is of no
consequence because the trial court, which denied Richardson's
motion to strike on materiality grounds, reached the correct
result. See Frye v. Commonwealth, 231 Va. 370, 389, 345 S.E.2d
267, 281 (1986).
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indicted by the grand jury.
While Richardson testified that he did not know he was under
indictment and had failed to read the firearm consent form
carefully before signing it, the trial court was not required to
believe his testimony and discredit Blanton's testimony. "The
weight which should be given to evidence and whether the
testimony of a witness is credible are questions which the fact
finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523,
528, 351 S.E.2d 598, 601 (1986).
Richardson admitted that he signed the firearm consent form.
Three days later, he admitted that he knew he had been indicted,
but gave as his reason for incorrectly answering the question on
the form that he had not read the form carefully. At trial,
Richardson added to his reasoning that he did not know what it
meant to be indicted, and, therefore, did not know that he had
been indicted. From Richardson's conflicting statements, the
trial court could have inferred that Richardson was aware that he
had been indicted for a felony at the time he filled out the
consent form and that he falsely answered the questions in order
to procure the weapon.
III. Firearm
Richardson maintains that the Commonwealth did not prove
that he attempted to purchase a "firearm" as defined in Code
§ 18.2-308.2:2(G) and further asserts that proof of the weapon's
firing capability was required to distinguish antique weapons
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which had no firing capability. Code § 18.2-308.2:2(G) defines
"firearm" as "any handgun, shotgun, or rifle which expels a
projectile by action of an explosion." Words in a statute must
be given their plain and ordinary meaning. See Grant v.
Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1992).
Richardson testified that his "intention was to buy a
firearm for [his] house protection." The gun dealer testified
that Richardson wanted to purchase the handgun listed on the
Virginia Firearms Transaction Record form. The handgun listed on
this form was a .38 caliber pistol. From this evidence, the
trial court could have inferred that Richardson attempted to
purchase a firearm as defined in the statute.
For all of the above-stated reasons, the evidence was
sufficient to prove beyond a reasonable doubt that Richardson
willfully and intentionally made the false statement on the
firearms transaction form in violation of Code § 18.2-308.2:2.
The conviction is affirmed.
Affirmed.
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Benton, J., concurring.
Although I agree with the majority that the consent form
required Richardson to respond truthfully to the inquiry whether
he was "under an indictment for a felony or . . . charged with a
felony in any court," I do not agree that an untruthful response
to any of the various inquiries on the consent form constitutes a
violation of Code § 18.2-308.2:2. Indeed, Code § 18.2-308.2:2 by
its very terms criminalizes only a "materially false statement on
the consent form." Code § 18.2-308.2:2(K) (emphasis added).
Furthermore, although I agree that Richardson's "No"
response was materially false, it was not materially false merely
because it was untrue. It was materially false because it was
untrue and it related to a violation of federal criminal laws
enacted to control illegal weapon use. Richardson's argument
(i.e., that Virginia law does not forbid purchase of a firearm by
an individual under indictment) does not, in my opinion, define
the scope of materiality. His untrue response to the inquiry at
issue was materially false because Code § 18.2-308.2:2 mandates
that the form shall incorporate by reference the information
designed to determine whether a violation of federal law has also
occurred. That inquiry is a significant tool in Virginia's
enforcement of its gun control laws.
I concur in Parts II and III of the majority opinion, and,
for the reasons stated above, I join in the judgment affirming
the conviction.
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