                       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

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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.




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