Adkins v. Commonwealth

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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