Richardson v. Commonwealth

                  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

                                 - 2 -
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

                              - 3 -
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.



                                 - 4 -
(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

                                 - 5 -
                    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).


                                - 6 -
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
                                    - 7 -
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.




                              - 8 -
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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