Opinion
49872 No. 1149-93-2
Decided February 7, 1995
(1) Criminal Law — Purchase of a Firearm — Standard. — Code Sec. 18.2-308.2:2 requires disclosure of the purchaser's name, birth date, gender, race, and social security number and/or any other identification number and the number of firearms to be sold or transferred; the information required is also limited to the information referenced on the federal firearms transaction record, which includes a question whether the purchaser is under indictment or information for any felony.
(2) Criminal Law — Purchase of a Firearm — Standard. — A willful, intentional and materially false statement on the consent form required by statute constitutes a class 5 felony.
(3) Courts — Statutory Construction — Standard. — Well established principles of statutory construction require a court to ascertain and give effect to the legislative intent; where the language of a statute is clear and unambiguous, the court is bound by that plain statement.
(4) Courts — Statutory Construction — Standard. — Words and phrases used 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 and must be construed so as to proscribe only conduct which the legislature clearly intended to be within the statute's ambit.
(5) Criminal Law — Purchase of a Firearm — Standard. — Code Sec. 18.2-308.2:2(A) explicitly and unambiguously limits the inquires of the consent form to the information required by subdivision B(1) of Code Sec. 18.2-308.2:2 and the federally mandated firearms transaction record.
(Jerry E. Waldrop; Hudson Law Office, on brief), for appellant. Appellant submitting on brief.
(James S. Gilmore, III, Attorney General; Thomas D. Bagwell, Assistant Attorney General, on brief), for appellee. Appellee submitting on brief.
SUMMARY
Defendant was convicted of making a materially false statement on a consent form incidental to the purchase of a firearm. He argued that the allegedly false statement was made in response to a question not authorized by statute and, therefore, is not subject to criminal sanction (Circuit Court of Greensville County, Robert G. O'Hara, Judge).
The Court of Appeals reversed, holding that the statement was not subject to criminal sanction.
Reversed and final judgment.
OPINION
Barry E. Brooks (defendant) was convicted of making a "materially false statement on a consent form" incidental to the purchase of a firearm, in violation of Code Sec. 18.2-308.2:2, and sentenced to ten years imprisonment. Defendant now appeals, complaining that the statement in issue came in response to an inquiry not authorized by the statute and, therefore, not subject to its criminal sanctions. We agree and reverse the conviction.
Because we reverse on this issue, we decline to address the remaining question raised on appeal.
The record discloses no substantive dispute in the evidence. On October 2, 1992, defendant entered "Jim's Pawn Shop" in Emporia, Virginia, intending to purchase a firearm. During the transaction, the owner of the store, Randy Capps, assisted defendant in the completion of a preprinted form, entitled "Department of State Police Virginia Firearms Record" (consent form), required by Code Sec. 18.2-308.2:2 as a condition to the purchase of a "firearm." Id. A portion of the consent form, designated "8.a." under "CERTIFICATION OF TRANSFEREE (Buyer)," inquired, "Are you under indictment for a felony or have you been charged with a felony in any court, or for a crime punishable by imprisonment for a term exceeding one year?" Defendant responded, "No," although at the time he had been charged, but not indicted, for malicious wounding and possession of cocaine. See generally Code Sec. 19.2-216.
Acting in accordance with the provisions of Code Sec. 18.2-308.2:2, Capps telephoned State Police and related the information provided by defendant on the consent form, thereby initiating the "criminal history record information check" prescribed by the statute. Id. For reasons not disclosed in the record, State Police refused to approve defendant's firearm purchase. However, he was subsequently charged and convicted for the instant offense arising from the false statement regarding the cocaine and malicious wounding charges.
(1-2) Code Sec. 18.2-308.2:2 provides, in pertinent part, 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 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. Id. (emphasis added). The "information" specified in "subdivision B 1" of Code Sec. 18.2-308.2:2 includes the purchaser's "name, birth date, gender, race, and social security and/or any other identification number and the number of firearms . . . to be sold . . . or transferred. . . ." Id. 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?" (emphasis added). A willful, intentional and materially false statement on the consent form "required" by the statute constitutes a Class 5 felony (emphasis added). Code Sec. 18.2-308.2:2(K).
(3-4) Well established "principles of statutory construction require us to ascertain and give effect to the legislative intent." Branch v. Commonwealth, 14 Va. App. 836, 839, 419 S.E.2d 422, 424 (1992). "Where the language of a statute is clear and unambiguous, we are bound by that plain statement . . . ." Commonwealth v. Meadows, 17 Va. App. 624, 626, 440 S.E.2d 154, 155 (1994). "[W]ords and phrases used in a statute should be given their ordinary and usually accepted meaning unless a different intention is fairly manifest." Woolfolk v. Commonwealth, 18 Va. App. 840, 847, 447 S.E.2d 530, 534 (1994). "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." King v. Commonwealth, 6 Va. App. 351, 354-55, 368 S.E.2d 704, 706 (1988) (citations omitted).
(5) Code Sec. 18.2-308.2:2(A) explicitly and unambiguously limits the inquiries of the consent form " only . . . to the information required by subdivision B 1 [of Code Sec. 18.2-308.2:2]" and the federally mandated "firearms transaction record" (emphasis added). Code Sec. 18.2-308.2:2(A). Neither Code Sec. 18.2-308.2:2(B) (1) nor the referenced federal ATF Form 4473 and attendant regulations require information from a prospective firearms purchaser pertaining to criminal charges. Therefore, such information is not included in the "criminal history record" contemplated by the statute, is not "required" on the consent form, and is not subject to the criminal sanctions of Code Sec. 18.2-308.2:2(K).
The word "only" is defined as "solely, exclusively." Webster's Ninth New Collegiate Dictionary 825 (1989).
This opinion addresses only Question 8(a) of the consent form.
Accordingly, defendant's conduct was not violative of the statute, and we reverse the conviction.
Reversed and final judgment.
Moon, C.J., and Coleman, J., concurred.