THE CIRCUIT COURT OF CAMPBELL COUNTY John T. Cook, Judge
Childress, III (Childress Law Firm, PC, on briefs), for
C. Campbell, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Present: Judges Petty, O'Brien and Russell Argued at
G. RUSSELL, JR. JUDGE
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.
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).
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
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.
checked "No" in response to Question 11.i.
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.
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.