COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Annunziata Argued at Richmond, Virginia
SHAREEF WAHEED KIRBY MEMORANDUM OPINION * BY v. Record No. 3015-99-2 JUDGE ROSEMARIE ANNUNZIATA DECEMBER 28, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY Thomas V. Warren, Judge
A. Pierre Jackson for appellant.
Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
The appellant, Shareef Kirby, was convicted on October 19,
1999 of making a materially false statement on an application to
purchase a firearm in violation of Code § 18.2-308.2:2(K). He
was sentenced to serve five years in prison, with all but six
months suspended. He contends on appeal that: (1) the trial
court erred in its verdict on the ground the evidence failed to
establish that he made the statement willfully and
intentionally; and (2) the trial court erroneously relied on the
language of Code § 18.2-308.2 which only requires simple
possession of a firearm and not a knowing and willful intent to
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. possess in violation of the statute. For the reasons that
follow, we affirm.
BACKGROUND
On appeal, we view the evidence in the light most favorable
to the Commonwealth, the party prevailing below, together with
all reasonable inferences which may be drawn. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
On November 17, 1994, Kirby was convicted in Nottoway
County Juvenile and Domestic Relations District Court on three
counts of petit larceny, and one count each of attempted
robbery, possession of a handgun by one under the age of
eighteen, attempted grand larceny, and use of a firearm in the
commission of a felony. As a result of those convictions, Kirby
was sentenced to serve twenty-four months at a state juvenile
detention facility.
On May 12, 1998, at the age of twenty-two, Kirby sought to
purchase a firearm and filled out a Virginia Firearms
Transaction Record, an application which Code § 18.2-308.2:2
requires be completed before purchasing a firearm. Kirby
answered the following question in the negative: "Have you been
convicted in any court of a crime for which the Judge could have
imprisoned you for more than one year, even if the Judge
actually gave you a shorter sentence?"
In defense to the charge, Kirby testified that his social
skills teacher in the juvenile corrections facility where he
- 2 - served his sentence for the earlier convictions told him "that
if [he] sign[ed] any applications or anything to put no because
[he] was a juvenile and [he] was in juvenile court and [he] was
found not innocent" and that he "wouldn't lose [his] civil
rights." Kirby introduced into evidence a letter written by the
teacher to Kirby's attorney stating that she told the students
that if a person who was committed as a juvenile, that they did not have to acknowledge "guilt" on any forms such as job applications. The term for committed juveniles is "found not innocent," which means that they are not legally obligated to admit being found guilty as would a committed adult.
In finding Kirby guilty of making a materially false
statement on an application to purchase a firearm, the trial
judge made the following findings:
Now, this letter here is something saying that students who were told that if a person who was committed as a juvenile, they did not have to acknowledge guilt on any form such as job applications. This is clearly not a job application. No one has even mentioned the word guilt in this matter. . . . [T]his says have you ever been convicted in any court, and my view is you were convicted in a court.
DISCUSSION
On appeal, the judge's verdict will not be disturbed unless
it was plainly wrong or without evidence to support it. Albert
v. Commonwealth, 2 Va. App. 734, 742, 347 S.E.2d 534, 538-39
(1986). Matters of credibility and weight are for the trier of
fact, Bell v. Commonwealth, 22 Va. App. 93, 99, 468 S.E.2d 114,
- 3 - 117 (1996), and we will not substitute our judgment for those
determinations. Hunley v. Commonwealth, 30 Va. App. 556, 559,
518 S.E.2d 347, 349 (1999).
Applying these principles of law, we find the evidence is
sufficient to support Kirby's conviction. 1 The Commonwealth
established that Kirby gave a materially false response to the
question. Kirby had been convicted of grand larceny, attempted
grand larceny, petit larceny, possession of a firearm by one
under the age of eighteen, attempted robbery, and use of a
firearm in the commission of a felony on November 17, 1994 when
he was seventeen years of age. It is clear that the judge could
have imposed more than a one-year sentence for those convictions
and, in fact, did impose a sentence of twenty-four months to be
served at a juvenile detention center.
The only remaining question before us is whether the
Commonwealth established that the materially false statement was
made willfully and intentionally, knowing that the statement was
false at the time it was made. Holz v. Commonwealth, 220 Va.
876, 880, 263 S.E.2d 426, 428 (1980); Glens Falls Insurance Co.
1 It is uncontested that Kirby's possession of the firearm, purchased as a result of the false application, was illegal. Code § 18.2-308.2 makes it unlawful for a person under the age of twenty-nine who has been found guilty as a juvenile fourteen years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult, to possess a firearm.
- 4 - v. Long, 213 Va. 776, 779, 195 S.E.2d 887, 890 (1973). We find
the Commonwealth established this element of the offense.
The statement that was made constituted an "'act which
[was] intentional . . . or voluntary, as distinguished from
accidental.'" Snead v. Commonwealth, 11 Va. App. 643, 646, 400
S.E.2d 806, 807 (1991) (citation omitted). Kirby completed the
form himself, after being informed by the firearms dealer,
several times, to read the questions carefully to make sure he
understood the questions. Kirby knew he had been convicted of
crimes for which he could have been imprisoned for more than one
year, because the sentence he actually received was for a period
greater than one year. Notwithstanding this knowledge, Kirby
did not provide the information requested, claiming that he
believed and understood that his status following his juvenile
offense convictions did not require an answer in the
affirmative. He also cited the letter from his social skills
teacher in support of his claimed belief and understanding.
However, the trial court was not bound to believe or accept this
evidence. Richardson v. Commonwealth, 21 Va. App. 93, 99, 462
S.E.2d 120, 124 (1995). Indeed, the trial court gave little
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COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Annunziata Argued at Richmond, Virginia
SHAREEF WAHEED KIRBY MEMORANDUM OPINION * BY v. Record No. 3015-99-2 JUDGE ROSEMARIE ANNUNZIATA DECEMBER 28, 2000 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF NOTTOWAY COUNTY Thomas V. Warren, Judge
A. Pierre Jackson for appellant.
Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
The appellant, Shareef Kirby, was convicted on October 19,
1999 of making a materially false statement on an application to
purchase a firearm in violation of Code § 18.2-308.2:2(K). He
was sentenced to serve five years in prison, with all but six
months suspended. He contends on appeal that: (1) the trial
court erred in its verdict on the ground the evidence failed to
establish that he made the statement willfully and
intentionally; and (2) the trial court erroneously relied on the
language of Code § 18.2-308.2 which only requires simple
possession of a firearm and not a knowing and willful intent to
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. possess in violation of the statute. For the reasons that
follow, we affirm.
BACKGROUND
On appeal, we view the evidence in the light most favorable
to the Commonwealth, the party prevailing below, together with
all reasonable inferences which may be drawn. Higginbotham v.
Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
On November 17, 1994, Kirby was convicted in Nottoway
County Juvenile and Domestic Relations District Court on three
counts of petit larceny, and one count each of attempted
robbery, possession of a handgun by one under the age of
eighteen, attempted grand larceny, and use of a firearm in the
commission of a felony. As a result of those convictions, Kirby
was sentenced to serve twenty-four months at a state juvenile
detention facility.
On May 12, 1998, at the age of twenty-two, Kirby sought to
purchase a firearm and filled out a Virginia Firearms
Transaction Record, an application which Code § 18.2-308.2:2
requires be completed before purchasing a firearm. Kirby
answered the following question in the negative: "Have you been
convicted in any court of a crime for which the Judge could have
imprisoned you for more than one year, even if the Judge
actually gave you a shorter sentence?"
In defense to the charge, Kirby testified that his social
skills teacher in the juvenile corrections facility where he
- 2 - served his sentence for the earlier convictions told him "that
if [he] sign[ed] any applications or anything to put no because
[he] was a juvenile and [he] was in juvenile court and [he] was
found not innocent" and that he "wouldn't lose [his] civil
rights." Kirby introduced into evidence a letter written by the
teacher to Kirby's attorney stating that she told the students
that if a person who was committed as a juvenile, that they did not have to acknowledge "guilt" on any forms such as job applications. The term for committed juveniles is "found not innocent," which means that they are not legally obligated to admit being found guilty as would a committed adult.
In finding Kirby guilty of making a materially false
statement on an application to purchase a firearm, the trial
judge made the following findings:
Now, this letter here is something saying that students who were told that if a person who was committed as a juvenile, they did not have to acknowledge guilt on any form such as job applications. This is clearly not a job application. No one has even mentioned the word guilt in this matter. . . . [T]his says have you ever been convicted in any court, and my view is you were convicted in a court.
DISCUSSION
On appeal, the judge's verdict will not be disturbed unless
it was plainly wrong or without evidence to support it. Albert
v. Commonwealth, 2 Va. App. 734, 742, 347 S.E.2d 534, 538-39
(1986). Matters of credibility and weight are for the trier of
fact, Bell v. Commonwealth, 22 Va. App. 93, 99, 468 S.E.2d 114,
- 3 - 117 (1996), and we will not substitute our judgment for those
determinations. Hunley v. Commonwealth, 30 Va. App. 556, 559,
518 S.E.2d 347, 349 (1999).
Applying these principles of law, we find the evidence is
sufficient to support Kirby's conviction. 1 The Commonwealth
established that Kirby gave a materially false response to the
question. Kirby had been convicted of grand larceny, attempted
grand larceny, petit larceny, possession of a firearm by one
under the age of eighteen, attempted robbery, and use of a
firearm in the commission of a felony on November 17, 1994 when
he was seventeen years of age. It is clear that the judge could
have imposed more than a one-year sentence for those convictions
and, in fact, did impose a sentence of twenty-four months to be
served at a juvenile detention center.
The only remaining question before us is whether the
Commonwealth established that the materially false statement was
made willfully and intentionally, knowing that the statement was
false at the time it was made. Holz v. Commonwealth, 220 Va.
876, 880, 263 S.E.2d 426, 428 (1980); Glens Falls Insurance Co.
1 It is uncontested that Kirby's possession of the firearm, purchased as a result of the false application, was illegal. Code § 18.2-308.2 makes it unlawful for a person under the age of twenty-nine who has been found guilty as a juvenile fourteen years of age or older at the time of the offense of a delinquent act which would be a felony if committed by an adult, to possess a firearm.
- 4 - v. Long, 213 Va. 776, 779, 195 S.E.2d 887, 890 (1973). We find
the Commonwealth established this element of the offense.
The statement that was made constituted an "'act which
[was] intentional . . . or voluntary, as distinguished from
accidental.'" Snead v. Commonwealth, 11 Va. App. 643, 646, 400
S.E.2d 806, 807 (1991) (citation omitted). Kirby completed the
form himself, after being informed by the firearms dealer,
several times, to read the questions carefully to make sure he
understood the questions. Kirby knew he had been convicted of
crimes for which he could have been imprisoned for more than one
year, because the sentence he actually received was for a period
greater than one year. Notwithstanding this knowledge, Kirby
did not provide the information requested, claiming that he
believed and understood that his status following his juvenile
offense convictions did not require an answer in the
affirmative. He also cited the letter from his social skills
teacher in support of his claimed belief and understanding.
However, the trial court was not bound to believe or accept this
evidence. Richardson v. Commonwealth, 21 Va. App. 93, 99, 462
S.E.2d 120, 124 (1995). Indeed, the trial court gave little
weight to the explanation. Noting that the teacher referenced
forms such as job applications, the trial court, by implication,
found Kirby's inclusion of an application to purchase a firearm
within the references made in the teacher's generalized
statement to be unreasonable and not credible. In addition, the
- 5 - circuit court order affirming the juvenile court's actions
described the defendant as having been found "guilty" of the
various offenses, establishing a further ground for the trial
court's resolution of the credibility issue against Kirby.
Kirby also alleges that the trial court erroneously based
his conviction on Code § 18.2-308.2, which does not require a
finding of willfulness or intent. The contention is without
merit. Code § 18.2-308.2 prohibits a person under the age of
twenty-nine who has been found guilty as a juvenile fourteen
years of age or older at the time of the offense of a delinquent
act which would be a felony if committed by an adult, from
possessing a firearm. It was referenced by the Commonwealth
only to underscore the illegality of Kirby's gun purchase and as
further evidence that Kirby's response on the form was false and
that Kirby knew it was false when he gave it. Furthermore, the
trial court acknowledged that the Commonwealth had to prove that
Kirby willfully and intentionally made the false statement, an
element the Commonwealth is required to prove under Code
§ 18.2-308.2:2(K), and the trial court made an explicit finding
that Kirby had intentionally made the false statement. Thus,
the trial court clearly did not improperly rely on Code
§ 18.2-308.2 to convict Kirby of the offense.
- 6 - Because we find the conviction was supported by sufficient
evidence, we affirm.
Affirmed.
- 7 -