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Marshall v. Commonwealth

Court of Appeals of Virginia

January 15, 2019

QUINTUS DELANO MARSHALL
v.
COMMONWEALTH OF VIRGINIA

          FROM THE CIRCUIT COURT OF CAMPBELL COUNTY John T. Cook, Judge

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

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

          Present: Judges Petty, O'Brien and Russell Argued at Lexington, Virginia

          OPINION

          WESLEY G. RUSSELL, JR. JUDGE

         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 (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, ...


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