                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Agee
Argued at Alexandria, Virginia


DEENA ANNE ESTEBAN
                                           MEMORANDUM OPINION * BY
v.      Record No. 0028-01-4                JUDGE G. STEVEN AGEE
                                               AUGUST 27, 2002
COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY
                  Frank A. Hoss, Jr., Judge Designate

             Richard E. Gardiner for appellant.

             Robert H. Anderson, III, Senior Assistant
             Attorney General (Jerry W. Kilgore, Attorney
             General, on brief), for appellee.


        Deena Anne Esteban (Esteban) was convicted by a Prince

William County Circuit Court jury of possession of a firearm on

school property, in violation of Code § 18.2-308.1(B).        She was

sentenced to a term of twelve months incarceration, but the

sentence was suspended, and she was placed on probation for one

year.     Esteban was also fined $2,500, with $500 suspended.    On

appeal, Esteban contends the trial court erred (1) by refusing

to instruct the jury regarding mens rea, an element she argues

is included in the statutory offense for which she was charged,

and (2) by granting the Commonwealth's proposed instruction on



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
possession of a firearm.   For the following reasons, we affirm

the decisions of the trial court.

                           I.    BACKGROUND

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited.

     Esteban was employed as an art teacher at Marunsco Hills

Elementary School in Prince William County.       On Monday, March 6,

2000, Esteban entered the classroom of Susan Tomsko and taught

her students for about an hour and then left Tomsko's classroom.

Shortly thereafter, Tomsko noticed a yellow bag on the floor,

which she determined did not belong to either of her teaching

assistants or any of the students.        Tomsko opened the bag and

discovered a loaded .38 caliber revolver inside.       Tomsko

observed that a checkbook in the bag bore Esteban's name.

     Tomsko then found Esteban, who confirmed that the bag

belonged to her.   When Tomsko told Esteban that she had seen the

revolver in the bag, Esteban responded that she "had a permit to

carry a concealed weapon."      After Tomsko told Esteban that she

needed to get the firearm out of the school so that no one got

hurt, Esteban remarked for the first time that she had forgotten

the firearm was in her bag.     Esteban further stated that she did

not "usually" bring the weapon to school and took the bag from

Tomsko.

                                  - 2 -
     Esteban was subsequently charged with the unlawful

possession of a firearm while on school premises.   At trial,

testifying in her own behalf, Esteban said that she had a

concealed weapon permit and that she carried the revolver with

her when she went to the store or went out at nighttime.

Esteban said, though, that she previously "never" took the

firearm into the school.

     Esteban also testified that she put the firearm in her bag

to go to the store on Saturday, two days before the incident at

her school, but had not taken it out of the bag when she

returned home.    She then drove to school on Monday morning,

parked her car on school grounds "in the back of the building,"

and took several bags, including the one containing the loaded

revolver, into the school.

     Esteban submitted a jury instruction on the element of mens

rea, arguing an alleged felony offense required that the

Commonwealth prove "that she knew she possessed the firearm." 1


     1
         Esteban's proposed instruction provided:

                 The defendant is charged with the crime
            of possession of a firearm upon the property
            of a public school. The Commonwealth must
            prove each element of the offense beyond a
            reasonable doubt. The two elements are: 1)
            that the defendant possessed the firearm
            while upon the property of a public school,
            and 2) that she knew she possessed the
            firearm.

                 If you find that the Commonwealth has
            failed to prove either one of the two

                                - 3 -
The Commonwealth argued the charged offense was a strict

liability offense, which did not require such proof.       The trial

court denied Esteban's proposed instruction regarding mens rea. 2


               elements beyond a reasonable doubt, then you
               shall find the defendant not guilty of the
               charge of possession of a firearm upon the
               property of a public school.

                    If you find that the Commonwealth has
               proved both elements beyond a reasonable
               doubt, then you shall find the defendant
               guilty, unless the defendant proves by a
               preponderance of the evidence either that:
               1) she possessed a valid permit to carry the
               firearm, or 2) upon discovering that she
               possessed the firearm, she promptly removed
               the firearm from school grounds, in which
               case you shall find the defendant not
               guilty.

     This instruction is erroneous as a matter of law.
Code § 18.2-308(O) provides that "[t]he granting of a concealed
handgun permit shall not thereby authorize the possession of any
handgun . . . on property or in places where such possession is
otherwise prohibited by law . . . ." Code § 18.2-308.1
prohibits the possession of a firearm on school premises and
does not provide for a defendant's guilt to be negated by
showing that she, after being caught committing the offense,
promptly removed the firearm from the school's premises.
Therefore, the provisions in the last paragraph of Esteban's
proposed instruction are not accurate statements of the law, and
the trial court was required to deny the instruction.
     Further, Esteban admitted that she knowingly possessed the
firearm and maintained dominion and control it. Therefore, the
proposed instruction was unnecessary, even if one assumes it
were required.
        2
            The trial court issued the following instruction to the
jury:

                    The defendant is charged with the crime
               of possessing a firearm while on school
               property. The Commonwealth must prove
               beyond a reasonable doubt each of the
               following elements of the crime:


                                   - 4 -
     The trial court granted, over Esteban's objection, the

Commonwealth's proposed instruction that stated "[o]ne may not

lose possession or dispossess oneself of property by mere

forgetfulness."

                          II.   ANALYSIS

     On appeal, Esteban contends the trial court erred in

refusing to instruct the jury, as requested by her, on the

element of mens rea and by instructing the jury that

forgetfulness does not dispossess a person of property.    For the

following reasons we hold the trial court did not commit

reversible error.



               1. That the defendant had a firearm in
          her possession that is designed or intended
          to propel a missile of any kind; and

               2. That while in possession of a
          firearm the defendant was on any public,
          private or parochial elementary, middle or
          high school property including its
          building(s) and the grounds attached
          thereto.

               If you find from the evidence that the
          Commonwealth has proved beyond a reasonable
          doubt each of the above elements of the
          offense as charged, then you shall find the
          defendant guilty but you shall not fix the
          punishment until your verdict has been
          returned and further evidence has been heard
          by you.

               If you find that the Commonwealth has
          failed to prove beyond a reasonable doubt
          either or both of the elements of the
          offense, then you shall find the defendant
          not guilty.


                                - 5 -
                      A.   STANDARD OF REVIEW

               A reviewing court's responsibility in
          reviewing jury instructions is "to see that
          the law has been clearly stated and that the
          instructions cover all issues which the
          evidence fairly raises." It is elementary
          that a jury must be informed as to the
          essential elements of the offense; a correct
          statement of the law is one of the
          "essentials of a fair trial."

Darnell v. Commonwealth, 6 Va. App. 485, 488, 370 S.E.2d 717,

719 (1988) (internal citations omitted).

              B.   THE PROPOSED MENS REA INSTRUCTION

     Code § 18.2-308.1(B) provides, in pertinent part:

          If any person possesses any firearm designed
          or intended to propel a missile of any kind
          while such person is upon (i) any public,
          private or parochial elementary, middle or
          high school, including buildings and
          grounds, (ii) that portion of any property
          open to the public used for school-sponsored
          functions or extracurricular activities
          while such functions or activities are
          taking place, or (iii) any school bus owned
          or operated by any such school, he shall be
          guilty of a Class 6 felony[.]

On its face, the statute does not require, as an element of the

crime, that the possessor knowingly possess the firearm.

Esteban argues, however, "[t]he fact that the statute does not

include an express mens rea element does not preclude such an

element from being read into the statute . . . ."   She contends

that a felony offense implicitly requires criminal intent even




                               - 6 -
if the statute fails to state it and that the Commonwealth was

required to prove "that she knew she possessed the firearm." 3

     We find the trial court did not commit reversible error in

instructing the jury on the elements of the offense.      Assuming,

but not deciding, that a mens rea instruction regarding whether

Esteban knowingly possessed the firearm should have been given,

we find any error in the trial court's failure to instruct the

jury to be harmless.

     Our determination that the error is harmless is guided by

familiar principles.   In the context of reviewing the improper

instruction of juries, harmless error analysis is appropriate.

See Kil v. Commonwealth, 12 Va. App. 802, 812, 407 S.E.2d 674,

679-80 (1991).   "[N]on-constitutional error is harmless '[w]hen

it plainly appears from the record and the evidence given at the

trial that the parties have had a fair trial on the merits and

substantial justice has been reached.'"     Lavinder v.

Commonwealth, 12 Va. App. 1003, 1005, 407 S.E.2d 910, 911 (1991)

(en banc) (citation omitted).     "Each case must . . . be analyzed

individually to determine if an error has affected the verdict."

Id. at 1009, 407 S.E.2d at 913.    "[W]here the reviewing court is

able to determine that the trial court's error in failing to

instruct the jury could not have affected the verdict, that


     3
       Esteban does not contend that the Commonwealth was
required to prove she intentionally possessed the firearm while
on school premises.


                                - 7 -
error is harmless."   Turner v. Commonwealth, 23 Va. App. 270,

276, 476 S.E.2d 504, 507 (1996) (citation omitted), aff'd, 255

Va. 1, 492 S.E.2d 447 (1997).

     Based upon our examination of the record and evidence

presented in the case, we are satisfied that any error committed

by the trial court's failure to give the proposed jury

instruction on mens rea did not affect the verdict or otherwise

deprive Esteban of a fair trial on the merits. 4   The evidence of

Esteban's knowing possession of the firearm was undisputed:

Esteban testified that she owned the firearm, regularly carried

it with her, and placed it in the bag prior to her outings over

the weekend.   The uncontroverted evidence further proved that

Esteban alone placed the firearm inside the bag, which she

admitted she alone carried into the school less than forty-eight


     4
       The dissent cites Staples v. United States, 511 U.S. 600,
607 (1994), to conclude that the failure of the trial court to
instruct the jury on mens rea requires the reversal of Esteban's
conviction. We, however, find Staples distinguishable from the
case at bar. In Staples, the defendant was charged and
convicted of violating the National Firearms Act, 26 U.S.C.
§§ 5801-5872, for his possession of an unregistered assault
rifle. Staples knew he possessed the firearm, but claimed he
was unaware that the firearm had been modified into an automatic
weapon requiring its registration. The Supreme Court of the
United States, in reversing the conviction, found the statutory
offense implicitly contained a mens rea requirement that the
possessor know that the weapon is subject to registration. Id.
at 614-15. In the case at bar, however, there is no similar
element of the crime in dispute. Esteban admitted she knew she
possessed the firearm and she knew she was on school grounds.
Therefore, even assuming the mens rea argument in Staples is
germane to Code § 18.2-308.1(B), that argument would apply to a
disputed element of the crime, e.g. knowledge of firing capacity
for registration, not the simple possession of the weapon.

                                - 8 -
hours later.   Esteban's own undisputed testimony proved her

ownership, possession, control and dominion of the bag and

firearm at all times germane to the offense charged.    The record

reflects no intervening circumstance that interrupted Esteban's

ownership, possession, control and dominion of the firearm from

the time she put it in the bag through the time she entered upon

the school premises with it.   We can conclude, therefore,

without usurping the jury's fact finding function, that, had the

jury been instructed that the Commonwealth was required to prove

that Esteban "knew she possessed the firearm," as Esteban

requested, the verdict would have been the same.

     Accordingly, any error was harmless.     "An error does not

affect a verdict if a reviewing court can conclude, without

usurping the jury's fact finding function, that, had the error

not occurred, the verdict would have been the same."     Lavinder,

12 Va. App. at 1005, 407 S.E.2d at 911.    Therefore, we will not

reverse Esteban's conviction, as any error regarding the

proposed mens rea instruction was harmless.

                 C.   THE FORGETFULNESS INSTRUCTION

     Esteban also contends the trial court erred by instructing

the jury that "one may not lose possession or dispossess oneself

of property by mere forgetfulness."     She argues the instruction

was irrelevant and improper.   She contends her forgetfulness

negates her possession of the firearm in violation of Code



                                - 9 -
§ 18.2-308.1.    We disagree and affirm the decision of the trial

court.

     The jury instruction given by the trial court, which

instructed the jury that one does not divest oneself of

possession by mere forgetfulness, was a proper statement of the

law as it pertains to this case.   We cannot accept the

proposition, under the circumstances of this case, that one may

lose possession or dispossess oneself of property by mere

forgetfulness.

     Esteban did not lose possession of the firearm by her mere

forgetfulness.   To lose possession of a thing is not to place or

put the thing carefully and voluntarily in the place you intend

and then forget it.    See, generally, Flax v. Monticello Realty

Co., 185 Va. 474, 39 S.E.2d 308 (1946).    Esteban admitted at

trial that she owned the firearm discovered by Tomsko and

regularly carried the concealed weapon.    Esteban also admitted

that she personally placed the firearm in the bag in which it

was found and that she possessed the bag, exercising full

dominion and control of it at all times.   Esteban was,

therefore, aware of both the presence and character of the

firearm.   Further, the time period between Esteban placing the

firearm into her bag and then carrying it onto the school's

premises was de minimus.

     In the case at bar, Esteban challenged the Commonwealth's

case by presenting her testimony that she had forgotten about

                               - 10 -
the firearm in her bag.    Since the alleged forgetfulness did not

negate possession, the trial court's grant of the clarifying

instruction was necessary and relevant.   "'Both the Commonwealth

and the defendant are entitled to appropriate instructions to

the jury of the law applicable . . . provided such instructions

are based upon the evidence adduced.'"    Stewart v. Commonwealth,

10 Va. App. 563, 570, 394 S.E.2d 509, 514 (1990) (quoting Simms

v. Commonwealth, 2 Va. App. 614, 616, 346 S.E.2d 734, 735

(1986)).

     Accordingly, the decision of the trial court and Esteban's

conviction are affirmed.

                                                          Affirmed.




                               - 11 -
Benton, J., dissenting.


     Deena Esteban had a permit to carry a concealed handgun.

Thus, prior to entering the school ground, she was engaged in

lawful conduct while carrying a handgun inside the zippered bag,

which contained her personal belongings.     Esteban was indicted

and tried for violating Code § 18.2-308.1(B), which provides

that "any person [who] possesses any firearm designed . . . to

propel a missile of any kind while such person is upon . . . any

public . . . elementary . . . school, including buildings and

grounds, . . . shall be guilty of a Class 6 felony."     At the

conclusion of the evidence, the trial judge rejected Esteban's

proposed jury instruction that the Commonwealth was required to

prove as an element of the offense that she knowingly possessed

the gun. 5   Instead, the trial judge instructed the jury that it

could convict Esteban if she was on school property while she

"had a firearm in her possession."      I would hold the trial judge

erred, and I would further hold that the error was not harmless.




     5
       Although the majority believes the instruction was
defective, the Supreme Court has repeatedly held "'that when the
principle of law is materially vital to a defendant in a
criminal case, it is reversible error for the trial court to
refuse a defective instruction instead of correcting it and
giving it in the proper form.'" Commonwealth v. Jerman, 263 Va.
88, 93, 556 S.E.2d 754, 757 (2002) (quoting Whaley v.
Commonwealth, 214 Va. 353, 355-56, 200 S.E.2d 556, 558 (1973)).

                               - 12 -
                                 I.

     Although Code § 18.2-308.1(B) does not expressly contain a

mens rea element, the principle is well established in Virginia

jurisprudence that "'whenever a statute makes any offen[s]e

felony, it incidentally gives it all properties of a felony at

common law.'"    Parish v. Commonwealth, 81 Va. 1, 14 (1884)

(citation omitted).   In common law felonies, "[t]he existence of

a mens rea is the rule of, rather than the exception to, the

principles of Anglo-American criminal jurisprudence."     Dennis v.

United States, 341 U.S 494, 500 (1951).   Applying this

principle, the United States Supreme Court reversed a conviction

where a trial judge refused to instruct a jury that the

government had "to prove beyond a reasonable doubt that [the

defendant] knew the weapon he possessed had the characteristics

that brought it within the statutory definition of a

machinegun."    Staples v. United States, 511 U.S. 600, 602

(1994).   Noting that the statute's express language did not

contain a mens rea element, the Court held as follows:

              The language of the statute, . . . [is]
           the starting place in our inquiry. . . .
           Nevertheless, silence on [the question of
           mens rea], by itself, does not necessarily
           suggest that [the legislature] intended to
           dispense with a conventional mens rea
           element, which would require that the
           defendant know the facts that make his
           conduct illegal. See [United States v.]
           Balint, [258 U.S. 250, 251 (1922)] (stating
           that traditionally, "scienter" was a
           necessary element in every crime). See also
           n.3, infra. On the contrary, we must

                               - 13 -
          construe the statute in light of the
          background rules of the common law, see
          United States v. United States Gypsum Co.,
          438 U.S. 422, 436-437 (1978), in which the
          requirement of some mens rea for a crime is
          firmly embedded. As we have observed,
          "[t]he existence of a mens rea is the rule
          of, rather than the exception to, the
          principles of Anglo-American criminal
          jurisprudence." Id., at 436 (internal
          quotation marks omitted). See also
          Morissette v. United States, 342 U.S. 246,
          250 (1952) ("The contention that an injury
          can amount to a crime only when inflicted by
          intention is no provincial or transient
          notion. It is as universal and persistent
          in mature systems of law as belief in
          freedom of the human will and a consequent
          ability and duty of the normal individual to
          choose between good and evil").

             There can be no doubt that this
          established concept has influenced our
          interpretation of criminal statutes.
          Indeed, we have noted that the common law
          rule requiring mens rea has been "followed
          in regard to statutory crimes even where the
          statutory definition did not in terms
          include it." Balint, supra, at 251-252.
          Relying on the strength of the traditional
          rule, we have stated that offenses that
          require no mens rea generally are
          disfavored, Liparota [v. United States, 471
          U.S. 419, 426 (1985)], and have suggested
          that some indication of congressional
          intent, express or implied, is required to
          dispense with mens rea as an element of a
          crime. Cf. United States Gypsum, supra, at
          438; Morissette, supra, at 263.

Staples, 511 U.S at 605-06.   See also Maye v. Commonwealth, 213

Va. 48, 49, 189 S.E.2d 350, 351 (1972).

     The General Assembly has not clearly indicated, neither

expressly nor implicitly, that it intended to abrogate the

common law when it failed to include a mens rea element in Code

                              - 14 -
§ 18.2-308.1(B).       "The statute must therefore be read along with

the provisions of the common law, and the latter will be read

into the statute."       Wicks v. City of Charlottesville, 215 Va.

274, 276, 208 S.E.2d 752, 755 (1974).      The conventional rule

favoring scienter generally requires a court "interpreting

criminal statutes to include broadly applicable scienter

requirements, even when the statute by its terms does not

contain them."     United States v. X-Citement Video, Inc., 513

U.S. 64, 70 (1994).      As such, Code § 18.2-308.1(B) should be

read to require proof that the person "know the facts that make

[the person's] conduct illegal," Staples, 511 U.S. at 605, in

this case, that Esteban knew she possessed the gun.

     In Virginia, a person may obtain a permit and lawfully

carry a concealed gun.       See Code § 18.2-308.   Esteban had such a

permit.   Thus, when she put the gun in her bag and went shopping

forty-eight hours before she had to teach her class, she was

engaging in lawful conduct in Virginia.      Indeed, given the

existence of state law that permits the carrying of concealed

guns, "despite their potential for harm, guns generally can be

owned in perfect innocence."       Staples, 511 U.S. at 611.   As the

Supreme Court noted, "[e]ven dangerous items can, in some cases,

be so commonplace and generally available that we would not

consider them to alert individuals to the likelihood of strict

regulation."     Id.    It is precisely this commonplace possession

of a concealed gun in perfect innocence, which the law

                                  - 15 -
authorizes, that further suggests the legislature did not intend

to dispense with the requirement to prove mens rea and to exact

a felony penalty for a person who had no knowledge that the bag

containing her personal belongings also contained the gun she

had a permit to carry.   This is clearly a case in which the

usual presumption in favor of scienter applies to "the statutory

elements which criminalizes otherwise innocent conduct."

X-Citement Video, 513 U.S. at 72.

                                II.

     The failure to instruct the jury that the Commonwealth was

required to prove Esteban knowingly possessed the gun while on

the school property was not harmless.   It is a fundamental

principle of criminal law that when an offense requires proof of

a requisite mental state the Commonwealth must prove beyond a

reasonable doubt the mental state coincides with the act.

Harrell v. Commonwealth, 11 Va. App. 1, 7, 396 S.E.2d 680, 682

(1990).   See also Wayne R. LaFave & Austin W. Scott, Jr.,

Criminal Law § 8.7, at 752 (2d ed. 1986) (stating that "the

mental and physical elements of the crime must coincide").

Thus, when knowledge is an element of the offense, it must be

proved, as any other element, beyond a reasonable doubt.      Huntt

v. Commonwealth, 212 Va. 737, 739, 187 S.E.2d 183, 185 (1972).

     As the majority opinion notes, the evidence proved Esteban

had a concealed gun.   Esteban testified, however, that she had

put the gun in the bag when she went to a store.   Two days

                              - 16 -
later, she took several bags, including the one containing the

gun, from her car into the school where she taught art.

       Tomsko also testified that when she inquired of Esteban

concerning the contents of the bag, Esteban said "Oh my God, I

forgot it was in there."   Although Tomsko testified at first

that Esteban stated either "she usually doesn't bring it to

school or she doesn't bring it to school," when questioned

further, Tomsko agreed that Esteban's response was that "she

doesn't bring [the gun] to school."     She also testified that

Esteban "was in shock," and she described Esteban's reaction as

similar to her own reaction when she realized the gun was in the

bag.

       The fact that Esteban placed the gun in her bag only

forty-eight hours earlier and admitting carrying it onto the

property does not negate the harmless error analysis.    "A

harmless error analysis is not simply a sufficiency of the

evidence analysis.   Even if 'the other evidence amply supports

the jury's verdicts, [the error is not harmless when] the

disputed testimony may well have affected the jury's decision.'"

Clay v. Commonwealth, 33 Va. App. 96, 123, 531 S.E.2d 623, 636

(2000) (citation omitted).   Absent a proper instruction, the

jury could have convicted Esteban even though it accepted as

true that Esteban had not knowingly possessed the gun when she

entered the school property.   Because the error could have

affected the verdict, it is not harmless.     King v. Commonwealth,

                               - 17 -
217 Va. 912, 915, 234 S.E.2d 67, 69 (1977).   Indeed, the Supreme

Court has held that "[i]f an issue is erroneously submitted to a

jury, we presume that the jury decided the case upon that

issue."   Clohessy v. Weiler, 250 Va. 249, 254, 462 S.E.2d 94, 97

(1995).

     Moreover, in light of the trial judge's failure to instruct

the jury on mens rea, the judge's instruction to the jury that

"one may not lose possession or dispossess oneself of property

by mere forgetfulness" was erroneous and tended to further

discount the relevance of Esteban's evidence that she was not

aware that she had the gun when she entered the school property.

"A well-accepted definition of 'knowingly' is '[a]n act . . .

done voluntarily and intentionally, and not because of mistake

or accident or other innocent reason.'"   United States v. Jones,

735 F.2d 785, 789 (4th Cir. 1984) (citation omitted).    See also

Staples, 511 U.S. at 623 (Ginsburg, J., concurring) ("'Knowingly

possessed' logically means 'possessed and knew that he

possessed.'").   Absent an instruction that the Commonwealth was

required to prove knowing possession of the gun, the jury could

have convicted Esteban despite believing that she was not aware

the gun was in the bag.   Thus, the error in this case plainly

could have affected the verdict.

     For these reasons, I would reverse the conviction and

remand for a new trial.



                              - 18 -
