Marshall v. Commonwealth

• Decision Date: 15 January 2019
• Docket Number: Record No. 0270-18-3
• Citation: 822 S.E.2d 389,69 Va.App. 648
• Court: Virginia Court of Appeals
• Parties: Quintus Delano MARSHALL v. COMMONWEALTH of Virginia

69 Va.App. 648

822 S.E.2d 389

Quintus Delano MARSHALL

v.COMMONWEALTH of Virginia

Record No. 0270-18-3

Court of Appeals of Virginia, Lexington.

JANUARY 15, 2019

Jim D. Childress, III (Childress Law Firm, PC, on briefs), Madison Heights, for appellant.

Lauren C. Campbell, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Present: Judges Petty, O’Brien and Russell

OPINION BY JUDGE WESLEY G. RUSSELL, JR.

Quintus Delano Marshall was convicted in a bench trial of violating Code § 18.2-308.2:2 by making a false statement on ATF Form 4473 in his attempt to obtain a firearm from a licensed firearms dealer in Virginia. Specifically, he indicated on the form that he had not been convicted of a "misdemeanor crime of domestic violence" despite his prior conviction for assault and battery against a family member in violation of Code § 18.2-57.2. On appeal, he contends that some violations of Code § 18.2-57.2 do not constitute "misdemeanor crimes of domestic violence," and therefore, the evidence was insufficient to support his false statement conviction. For the reasons that follow, we disagree and affirm.

BACKGROUND

"Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below." Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584 (2008).

In 2009, years before the conviction that he now appeals, Marshall was convicted in the Circuit Court for the City of Lynchburg of misdemeanor assault and battery against a family member in violation of Code § 18.2-57.2. That case, which involved Marshall’s former wife, originated in the juvenile and domestic relations district court and was resolved by Marshall’s guilty plea in the circuit court. A certified copy of the 2009 Lynchburg conviction was introduced into evidence at the trial giving rise to this appeal.

On February 3, 2017, Marshall entered Vista Pawn located in Campbell County. Thomas McCue, the owner of Vista Pawn and a federally licensed firearms dealer, waited on Marshall. According to McCue, Marshall sought to redeem a Glock pistol that he previously had pawned. As part of the transaction, McCue, as required by law, asked Marshall to complete ATF Form 4473. Question 11.i on the form asks whether the applicant has ever been convicted in any court of a misdemeanor crime of domestic violence. The instructions on the reverse of the form state, in part:

Question 11.i. Misdemeanor Crime of Domestic Violence: A Federal, State, local, or tribal offense that is a misdemeanor under Federal, State, or tribal law and has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabitating with, or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim. The term includes all misdemeanors that have as an element the use or attempted use of physical force or the threatened use of a deadly weapon (e.g., assault and battery), if the offense is committed by one of the defined parties.^{[1 ]}

Marshall checked "No" in response to Question 11.i.

Acknowledging his prior conviction, Marshall argued at trial that some violations of Code § 18.2-57.2 do not satisfy the definition of "misdemeanor crimes of domestic violence." He reasoned that, because an assault and battery conviction in Virginia can be based on any offensive or rude touching, a conviction for violating Code § 18.2-57.2 does not necessarily involve "the use or attempted use of physical force," which is a necessary component of a misdemeanor crime of domestic violence. Specifically, he argued that "[p]hysical force is something ... different than a touching. Physical force is something like a robbery where it’s done with force, threat or intimidation." From this he reasoned that the conviction order, standing alone, was insufficient to establish that he had been convicted of a crime involving "the use or attempted use of physical force" and that the Commonwealth "must bring the alleged victim, or the criminal complaint, or something to show what the allegations [were] in the case because a conviction [order under Code § 18.2-57.2 ] on its own is not ... sufficient" to establish the conviction was for a misdemeanor crime of domestic violence.

The trial court rejected this argument, concluding that the conviction order established that Marshall had been convicted of a misdemeanor crime of domestic violence, and thus, Marshall’s response on ATF Form 4473 was false. Accordingly, the trial court convicted Marshall for violating Code § 18.2-308.2:2.

On appeal, Marshall again challenges the sufficiency of the evidence. Acknowledging that some violations of Code § 18.2-57.2 involve the use or attempted use of physical force and thus qualify as misdemeanor crimes of domestic violence, he continues to maintain that not all violations of Code § 18.2-57.2 involve such force. As a result, he argues that the evidence at trial was insufficient to prove that he had committed a misdemeanor crime of domestic violence, and therefore, was insufficient to prove that he made a false statement on ATF Form 4473 in violation of Code § 18.2-308.2:2.

ANALYSIS

I. Standard of Review

In general, when reviewing a challenge to the sufficiency of the evidence to support a conviction, an appellate court considers the evidence in the light most favorable to the Commonwealth, the prevailing party below, and reverses the judgment of the trial court only when its decision is plainly wrong or without evidence to support it. See Farhoumand v. Commonwealth, 288 Va. 338, 351, 764 S.E.2d 95 (2014). However, when a sufficiency challenge turns on whether a particular fact or circumstance falls within a statutory definition, we must "construe statutory language to answer the question. That function presents a pure question of law which we consider de novo on appeal." Cartagena v. Commonwealth, 68 Va.App. 202, 207, 807 S.E.2d 223 (2017) (quoting Smith v. Commonwealth, 282 Va. 449, 453-54, 718 S.E.2d 452 (2011) ). Marshall’s argument that a violation of Code § 18.2-57.2 does not necessarily constitute a misdemeanor crime of domestic violence presents such a challenge.

II. Required forms for acquiring a firearm

Both Virginia and federal law impose certain requirements on firearms dealers and the people who seek to acquire firearms from those dealers. See, e.g., Code § 18.2-308.2:2(A) (requiring a person seeking to acquire a firearm from a licensed firearm dealer in Virginia to provide the dealer with written "consent ..., on a form to be provided by the Department of State Police, to have the dealer obtain criminal history record information" and specified identifying and criminal history information); Code § 18.2-308.2:2(B) and (C) (requiring Virginia firearms dealers to collect certain information from customers and submit that information to the Virginia State Police to allow for a criminal background check); 18 U.S.C. §§ 922 - 24 (imposing record and other requirements on firearms dealers and limiting to whom firearms may be legally sold); 24 CFR § 478.124 (requiring that a firearms dealer obtain ATF Form 4473 from any person who seeks to acquire a firearm).

In his attempt to acquire the firearm in this case, Marshall provided McCue a completed ATF Form 4473 "[a]s required by law[.]" Smith, 282 Va. at 452, 718 S.E.2d 452 ; see also 24 CFR § 478.124(c). Code § 18.2-308.2:2(K) makes it a felony for any person to "willfully and intentionally mak[e] a materially false statement on the consent form required in subsection B or C or on such firearm transaction records as may be required by federal law ...."² Thus, if the evidence was sufficient to establish that Marshall made a materially false statement on ATF Form 4473, the evidence was sufficient to support his conviction for violating Code § 18.2-308.2:2.³

III. Code § 18.2-57.2 and misdemeanor crimes of domestic violence

Determining whether the evidence was sufficient to support Marshall’s conviction for violating Code § 18.2-308.2:2 requires the interpretation of two different statutes, one state and one federal. First, we must determine the necessary elements underlying Marshall’s prior conviction for violating Code § 18.2-57.2, a question of Virginia law. Next, we must determine whether such a conviction meets the definition of a "misdemeanor crime of domestic violence" as that term is defined in 18 U.S.C. § 921(a)(33), a question of federal law.⁴

A. Code § 18.2-57.2

Code § 18.2-57.2(A) provides that "[a]ny person who commits an assault and battery against a family or household member is guilty of a Class 1 misdemeanor." Because, like other Virginia statutes involving assault and assault and battery, Code § 18.2-57.2 does not define "assault and battery," we assume the General Assembly intended to incorporate the common law definition. Carter v. Commonwealth, 269 Va. 44, 46, 606 S.E.2d 839 (2005).

At common law, "[a] battery is the least touching of another, willfully or in anger, including touching done in the spirit of rudeness or insult." Edwards v. Commonwealth, 65 Va.App. 655, 664, 779 S.E.2d 858 (2015) (citing Hinkel v. Commonwealth, 137 Va. 791, 794, 119 S.E. 53 (1923) ); see also Adams v. Commonwealth, 33 Va.App. 463, 468, 534 S.E.2d 347 (2000) ("Whether a touching is a battery depends on the intent of the actor, not on the force applied."). Marshall concedes that the 2009 conviction order established that, at a minimum, he committed an assault and an unprivileged touching of a family member "willfully or in anger," to include a touching motivated only by a "spirit of rudeness or insult." Edwards, 65 Va.App. at 664, 779 S.E.2d 858. He argues that, standing alone, the order proves no more than that and...