Opinion
Record No. 2121-93-1
Decided: February 28, 1995
FROM THE CIRCUIT COURT OF MATHEWS COUNTY, John M. Folkes, Judge
William E. Johnson for appellant.
Margaret Ann B. Walker, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Willis and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal, Russell Dale Minor (appellant) contends that the evidence is insufficient to sustain his bench trial conviction by the Circuit Court of Mathews County (trial court) for violation of Code Sec. 18.2-308.2:2(K). That code section provides that it is a Class 5 felony to willfully and intentionally make a false statement on the consent form required of the transferee of a firearm. The purpose of that form is to enable the transferor to obtain the transferee's criminal history, if any, through the State Police and to deny the transfer of a firearm to persons prohibited from possessing the same.
As sufficiency is contested, we state the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975).
When convicted of a felony, appellant owned two guns that had never been registered in his name. When appellant was jailed he turned the guns over to his parents. The guns were never again in appellant's possession. When his father died, the guns were added to the inventory of S H Hunting and Fishing (S H), a gun dealer partly owned by appellant's sister, Laura Brown (Brown). At trial, appellant's counsel advised the court that the guns "at one time belonged to [appellant], many years ago," indicating that title to the guns had passed to another.
Brown testified that she and appellant had devised a plan which would require that the guns be transferred to appellant. At trial, Brown identified the consent forms that had been signed in her presence by appellant as required by the statute to obtain the transfer sought. She instructed appellant "to make sure . . . that everything was correct." To a question on the form that asked whether the transferee had been convicted of a felony, appellant wrote "No." The form explicitly provided that a yes answer was not required if his crime had been pardoned, the record of his conviction had been expunged, or his civil rights had been restored. Appellant told Brown that he had been pardoned and that his record had been expunged. He had not been pardoned, his record had not been expunged, and his civil rights had not been restored. Brown submitted the forms to the State Police who refused to approve the transfer because of appellant's prior felony convictions. Both the State and Federal forms were admitted into evidence.
Appellant wrote "No" on the State and Federal forms, both containing similar language.
Former Mathews County Deputy Sheriff David Sutton (Sutton) testified that a request for a pardon and an expungement had been made but none had been granted. Sutton said that he asked appellant why he answered "No" to those questions on the transfer consent forms, and appellant responded, "I just wanted to see where I stood in life" and added, "getting the weapons were just incidental to finding out whether or not [I] still had a felony record." When asked why he did not just ask the sheriff whether his request had been granted, he responded, "The sheriff would probably make me say yes or something."
Appellant's criminal record was admitted into evidence, disclosing that he had been convicted of numerous felonies involving theft, forgeries, and uttering. Code Sec. 18.2-308.2:2(K), in part, provides that "Any person willfully and intentionally making a materially false statement on the consent form required in subsection B or C shall be guilty of a Class 5 felony."
It was undisputed that appellant, who had been convicted of a felony, was seeking to have the guns transferred to his name when he filled out the consent form required by Code Sec. 18.2-308.2:2(B) (1). Appellant falsely answered "No" to the question on the consent form that asked if he had ever been convicted in any court of a crime punishable by imprisonment of a term exceeding one year.
Brown, who was shown by the consent form to be a firearms dealer, testified that she and appellant intended to transfer ownership of the guns to appellant's name in order to sell them to a third-party purchaser. Appellant told Brown that he had been pardoned and his record had been expunged. The trial court did not believe appellant's testimony that he thought his criminal record had been expunged. "The weight which should be given to the evidence and whether the testimony of a witness is credible are questions which the fact-finder must decide." Bridgeman v. Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601 (1986). From the evidence in this record, the fact-finder could infer that appellant willfully and intentionally made a materially false statement on the consent form in violation of Code Sec. 18.2-308.2:2(K). That evidence is sufficient to support the trial court's finding that appellant committed the charged offense.
Appellant contends that since the warrant of arrest and the indictment indicated an offense date different from that testified to at trial, his conviction should be reversed. However, "the Commonwealth may charge that an offense occurred on a non-specific date or prove a date other than that alleged, if the date is not of the essence of the offense or not shown to be significant." Marlowe v. Commonwealth, 2 Va. App. 619, 622, 347 S.E.2d 167, 169 (1986). Here, the date was not significant to the crime charged and appellant was fully informed of the nature of the accusation against him. Accordingly, the variance in the offense date between the warrant and the indictment, and the testimony at trial, does not provide a basis upon which to reverse appellant's conviction.
For the reasons stated, the judgment of the trial court is affirmed.
Affirmed.