Mayhew v. Com.

• Citation: 458 S.E.2d 305,20 Va.App. 484
• Decision Date: 13 June 1995
• Docket Number: No. 1283-93-3,1283-93-3
• Parties: Edward Joseph MAYHEW, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Court of Appeals of Virginia

Page 305

458 S.E.2d 305

20 Va.App. 484

Edward Joseph MAYHEW, Jr. v. COMMONWEALTH of Virginia.

Record No. 1283-93-3.

Court of Appeals of Virginia Salem.

June 13, 1995.

[20 Va.App. 486] I. Ray Byrd, Jr., Salem, for appellant.

Robert Q. Harris, Asst. Atty. Gen. (James S. Gilmore, III, Atty. Gen., on brief), for appellee.

Present: COLEMAN, KOONTZ, JJ., and HODGES, Senior Judge.

KOONTZ, Judge.

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 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 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 S.E.2d 621, 625 (1994) (Benton, J., dissenting) (citing State v. Young, 185 W.Va. 327, 406 S.E.2d 758, 774 (1991); State v. Ingram, 98 N.J. 489, 488 A.2d 545, 546-47 (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, 228 Pa.Super. 127, 323 A.2d 318, 324 (1974); see also State v. Williamson, 58 Wis.2d 514, 206 N.W.2d 613, 618 (1973) ("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 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...