COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Koontz and Senior Judge Hodges
Argued at Salem, Virginia
EDWARD JOSEPH MAYHEW, JR.
v. Record No. 1283-93-3 OPINION BY
JUDGE LAWRENCE L. KOONTZ, JR.
COMMONWEALTH OF VIRGINIA JUNE 13, 1995
FROM THE CIRCUIT COURT OF THE CITY OF SALEM
G.O. Clemens, Judge
I. Ray Byrd, Jr., for appellant.
Robert Q. Harris, Assistant Attorney General (James S.
Gilmore, III, Attorney General, on brief), for appellee.
Edward Joseph Mayhew, Jr. (Mayhew) appeals his bench trial
conviction for failing to perform a criminal records background
check before making a firearms sale. See Code § 18.2-308.2:2.
Mayhew asserts that the trial court erred in ruling that sales of
firearms to undercover police officers conducting "sting"
operations are not subject to the exemption for sales to police
officers found in Code § 18.2-308.2:2(I)(ii). He further asserts
that the trial court erred in finding that the firearm sold was
"from his inventory" as required by the statute. For the
following reasons, we affirm Mayhew's conviction.
I.
FACTUAL BACKGROUND
Mayhew and Anthony Coberly (Coberly) shared a table under
Mayhew's trade name, High Velocity Sales, at the Salem Gun Show
and Sale held at the Salem Civic Center on December 19, 1992.
Mayhew, who at the time possessed a federal firearms dealer's
license, testified that he only sold antique firearms, for which
a dealer's license was not required. Coberly sold toy guns and
gun racks. Coberly did not have a license to sell firearms, but
testified that he had brought two of his own handguns to the
show, intending to try to make "private" sales.
Trooper J. T. Harris was working undercover at the gun show
with an investigator from the Bureau of Criminal Investigation.
At about 9:30 a.m., the two officers approached the
Mayhew/Coberly table and discussed with a "white male with a full
beard," the purchase of an MP5. 1 Later in the day, after having
first talked with Mayhew on the phone, the officers returned to
the table and negotiated with Mayhew the purchase of a Beretta
9mm 92FS semi-automatic pistol. The man with the beard was not
present.
Mayhew also gave Harris a Beretta patch and offered him a
magazine subscription. Harris then asked Mayhew if he was a
firearms dealer, and when Mayhew replied that he was, Harris
informed Mayhew that Mayhew had sold a firearm without first
making the required background check. Mayhew then claimed that
the firearm was not his and that, as he was selling it for
someone else, he believed he was not required to run the check.
At the conclusion of the Commonwealth's evidence, Mayhew
1
Although the parties assumed that the "white male" was
Coberly, there is no indication in the record that Harris
identified Coberly as the first individual he spoke to, nor did
Coberly specifically testify that the two officers were among the
people who inquired about his guns. Coberly further testified
"there was no MP5" but that "we had an HK94, a semi automatic gun
similar to an MP5."
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asserted that Code § 18.2-308.2:2 exempted sales to police
officers. While conceding that he had no knowledge that Harris
was a law enforcement officer, Mayhew asserted that the law
contained no limiting language which required knowledge of the
purchaser's status as a police officer at the time of the sale.
Mayhew further asserted that the law should be strictly
construed until amended by the legislature. The trial court
ruled that the exemption applied only to "official [or knowing]"
sales to police.
Coberly testified that he had stepped away from the table to
get a cup of coffee just before the undercover officers arrived
to purchase the Beretta. Coberly testified that he owned the
Beretta. He further testified that he had no formal agreement
with Mayhew, but that Mayhew "knew the prices [Coberly] was
willing to sell the items for." Coberly further testified that
he received all the proceeds from the sale of the Beretta.
At the conclusion of the evidence, Mayhew asserted that
because he had established that he acted as an agent in a private
sale of a firearm not a part of his inventory, he was not
required to perform a background check. The trial court ruled
that the determination of whether the firearm was "from [a
dealer's] inventory" was a factual issue and found that the
Beretta "became [part of Mayhew's] inventory when it was placed
with his [other] inventory and displayed in [an] area under his
control." The trial judge further stated that, "[Mayhew] sold
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the gun. . . . [H]is use of the term, 'This is a private sale' to
evade the terms of the law is not acceptable . . . ."
II.
CONSTRUCTION OF STATUTES CONTAINING EXEMPTIONS
Under familiar principles, penal statutes must be strictly
construed against the Commonwealth. Stevenson v. City of Falls
Church, 243 Va. 434, 436, 416 S.E.2d 435, 437 (1992). However,
when statutory construction is required, we construe a statute to
promote the end for which it was enacted, if such an
interpretation can reasonably be made from the language used.
VEPCO v. Board of County Supervisors, 226 Va. 382, 387-88, 309
S.E.2d 308, 311 (1983); Woolfolk v. Commonwealth, 18 Va. App.
840, 847, 447 S.E.2d 530, 533 (1994). Thus, a statute should be
read to give reasonable effect to the words used "and to promote
the ability of the enactment to remedy the mischief at which it
is directed." Jones v. Conwell, 227 Va. 176, 181, 314 S.E.2d 61,
64 (1984). "Where a particular construction of a statute will
result in an absurdity, some other reasonable construction which
will not produce the absurdity will be found." Miller v.
Commonwealth, 180 Va. 36, 41, 21 S.E.2d 721, 723 (1942).
When construing penal statutes which contain qualifications,
exceptions or exemptions to their application, the limiting
language may be viewed as a negative element of the offense which
the prosecution must disprove. See Regular Veterans Association,
Ladies Auxiliary v. Commonwealth, 18 Va. App. 683, 690, 446
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S.E.2d 621, 625 (1994)(Benton, J., dissenting)(citing State v.
Young, 406 S.E.2d 758, 774 (W. Va. 1991); State v. Ingram, 488
A.2d 545, 546-47 (N.J. 1985)). Alternately, the court may
determine that the exemption is a statutory defense, which the
accused can assert to defeat the prima facie case of the
prosecution. Regular Veterans, 18 Va. App. at 688, 446 S.E.2d at
624 (where a statute "defines completely the offense therein
specified and its required elements of proof[, n]egation of
circumstances invoking [an exemption elsewhere in the same Code
section] is not one of those elements. [The accused bears] the
burden of producing evidence [of the negation of circumstances]
sufficient to raise a reasonable doubt of [his] guilt").
In determining whether specific limiting language is an
element of the offense or a statutory defense, a court should
look both to the intent of the statute as a whole and the ability
of the respective parties to assert the existence or absence of
the underlying facts sustaining the applicability of the
limitation. Accordingly, we should consider
the wording of the exception and its role in relation
to the other words in the statute; whether in light of
the situation prompting legislative action, the
exception is essential to complete the general
prohibition intended; whether the exception makes an
excuse or justification for what would otherwise be
criminal conduct, i.e., sets forth an affirmative
defense; and whether the matter is peculiarly within
the knowledge of the defendant.
Commonwealth v. Stoffan, 323 A.2d 318, 324 (Pa. Super. Ct. 1974);
see also State v. Williamson, 206 N.W.2d 613, 618 (Wis. 1973)
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("It is undoubtedly the general rule that the state must prove
all the essential facts entering into the description of the
offense. But it has been held in many cases that when a negation
of a fact lies peculiarly within the knowledge of the defendant
it is incumbent on him to establish that fact").
III.
EXEMPTIONS FOUND WITHIN CODE § 18.2-308.2:2
It is manifest that Code § 18.2-308.2:2 is a part of a
statutory scheme reflecting a legislative purpose to interdict
the availability and use of firearms by persons previously
convicted of felony offenses. That purpose finds its
justification from the lessons of common experience that
possession of firearms by felons presents a high risk of harm to
others.
To facilitate the accomplishment of this general purpose,
the statutory scheme prohibits the possession of a firearm by a
convicted felon, Code § 18.2-308.2, the knowing sale or provision
of a firearm to a convicted felon, Code § 18.2-308.2:1, and the
purchase of a firearm by a "straw man" for the ultimate
possession by a convicted felon, Code §§ 18.2-308.2:2(M) and (N).
We may reasonably assume that duly licensed firearms dealers are
the primary source of firearms lawfully sold, purchased and
possessed by others in our society. Such dealers are defined in
Code § 18.2-308.2:2(G). Accordingly, the sale or transfer of
firearms by firearms dealers presents the logical and reasonable
point to interdict the availability of firearms to convicted
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felons. Thus, Code § 18.2-308.2:2 provides in general terms the
procedures to be followed by a firearms dealer to secure a
criminal history record check to verify that a potential customer
is not a convicted felon and not permitted to possess a firearm.
Code §§ 18.2-308.2:2(B) and (C). Where the licensed firearms
dealer fails to make the required criminal history check, Code
§ 18.2-308.2:2(L) provides that: "Except as provided in
§ 18.2-308.2:1 [prohibiting any person from knowingly selling a
firearm to a person prohibited from possessing a firearm], any
dealer who willfully and intentionally sells, rents, trades or
transfers a firearm in violation of this [Code] section shall be
guilty of a Class 6 felony."
Significantly, the application of Code § 18.2-308.2:2(L) is
not limited to those situations in which a firearm is actually
sold to a felon, nor could it adequately effect its purpose if it
were so limited. In fact, those instances where a dealer
knowingly sells a weapon to a felon, which is punishable under
Code § 18.2-308.2:1, are expressly exempted from the application
of Code § 18.2-308.2:2(L) by its own terms. Accordingly, we hold
that the specific legislative purpose underpinning Code
§ 18.2-308.2:2(L), consistent with the general legislative
purpose of interdicting the availability and use of firearms by
convicted felons, is to prohibit licensed firearms dealers from
failing to make the appropriate criminal background check
required by Code §§ 18.2-308.2:2(B) and (C).
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In this context, we turn now to the exemption on which
Mayhew relies in Code § 18.2-308.2:2(I):
The provisions of this section shall not apply to (i)
transactions between persons who are licensed as
firearms importers or collectors, manufacturers or
dealers pursuant to 18 U.S.C. § 921 et seq., (ii)
purchases by or sales to any law-enforcement officer or
agent of the United States, the Commonwealth or any
local government, (iii) antique firearms or (iv)
transactions in any county, city or town that has a
local ordinance adopted prior to January 1, 1987,
governing the purchase, possession, transfer,
ownership, conveyance or transportation of firearms
which is more stringent than this section.
(Emphasis added.)
Each of these exemptions relates to a factor which is within
the knowledge of the dealer or ascertainable by him at the point
in the transaction where he would normally conduct the required
background check. Moreover, these exemptions provide an excuse
or justification for the failure to perform the required criminal
background check. That requirement is not dependent upon the
outcome or results of the background check. Thus, the exemptions
found in subsection (I) are not negative elements of the offense
that must be proven by the Commonwealth. Rather, they are
circumstances, within the knowledge of the accused, which may be
raised as statutory defenses to the charge that the dealer has
unlawfully failed to obtain the criminal background check
required by Code §§ 18.2-308.2:2(B) and (C). In short, these
exemptions are affirmative defenses for which the accused has the
burden of going forward with supporting evidence. See Regular
Veterans, 18 Va. App. at 688 n.3, 446 S.E.2d at 624 n.3.
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Mayhew further asserts that even if the exemptions of
subsection (I) are statutory defenses rather than negative
elements of the offense, he nonetheless proved as a matter of law
the police officer exemption. Mayhew asserts that the language
of subsection (L) does not require proof that the sale was made
knowingly to the officer under the exemption, only that the sale
be a "purchase by . . . any law enforcement officer." In other
words, Mayhew asserts that it is legally impossible for a
firearms dealer to violate Code § 18.2-308.2:2 when the purchaser
is a police officer. We disagree.
As we have noted above, the statute is intended to compel
firearms dealers to comply with the requirement to perform
background checks. Thus, in construing subsections (I)(ii) and
(L), we hold that there is an implicit requirement that the
application of the exemption found in the former is limited to
circumstances where the dealer knows the purchaser is a police
officer at the time of the sale. Cf. Maye v. Commonwealth, 213
Va. 48, 49, 189 S.E.2d 350, 351 (1972)(holding that scienter will
be read into the statute by the court when it appears the
legislature implicitly intended that it must be proved). In
order for a firearms dealer to assert that his or her failure to
conduct the requisite background check was permitted pursuant to
Code § 18.2-308.2:2(I)(ii), he or she must demonstrate actual
knowledge that the exemption applied at the time of the sale.
Mayhew concedes he did not know that Harris was a law enforcement
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officer, and thus has failed to establish that his failure to
conduct the requisite background check was in accord with the
exemption.
IV.
INVENTORY/PRIVATE SALE ISSUE
Finally, we turn to Mayhew's assertion that the evidence
shows that the weapon was not part of his inventory, that he was
acting as Coberly's agent in a private sale and, accordingly, he
was not required to conduct a background check. We disagree.
The statute does not define the term "inventory."
Accordingly, we may look elsewhere to determine the usual meaning
of that term. Inventory is defined by the Uniform Commercial
Code, as adopted by this Commonwealth, as "[g]oods . . . held by
a person who holds them for sale or lease or to be furnished
under contracts of service or if he has so furnished them, or if
they are raw materials, work in process or materials used or
consumed in a business." Code § 8.9-109. Nothing in this
definition requires that inventory be the property of the
individual or business holding it out for sale.
The evidence showed that Mayhew was operating the table
under his business name; he exercised control and authority over
the firearm and its display. This is so even if Coberly owned
the firearm. Mayhew held the firearm for sale and negotiated the
sale of it to Harris. Accordingly, Mayhew was conducting a sale
from his inventory as contemplated by the statute. Cf. United
States v. Scherer, 523 F.2d 371, 374 (7th Cir. 1975)(for federal
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firearms transaction recordation requirements it is the act of
selling by a dealer and not arbitrary distinctions of location,
or business or personal ownership, that brings the dealer within
the statute), cert. denied, 424 U.S. 911 (1976).
Mayhew, a licensed firearms dealer, conducted the sale of a
firearm from his inventory without first conducting the requisite
background check or ascertaining that an exemption from
conducting the check applied to the sale. His actions
constituted a violation of Code § 18.2-308.2:2(L).
For these reasons, we affirm Mayhew's conviction.
Affirmed.
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