                                         COURT OF APPEALS OF VIRGINIA


            Present: Judges Petty, O’Brien and Russell
            Argued at Lexington, Virginia
PUBLISHED




            QUINTUS DELANO MARSHALL
                                                                                OPINION BY
            v.     Record No. 0270-18-3                                 JUDGE WESLEY G. RUSSELL, JR.
                                                                              JANUARY 15, 2019
            COMMONWEALTH OF VIRGINIA


                               FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                                             John T. Cook, Judge

                           Jim D. Childress, III (Childress Law Firm, PC, on briefs), for
                           appellant.

                           Lauren C. Campbell, Assistant Attorney General (Mark R. Herring,
                           Attorney General, on brief), for appellee.


                   Quintus 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.

                                                    BACKGROUND

                   “Under 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).
           In 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 appeal.

           On 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.[1]

Marshall checked “No” in response to Question 11.i.




           1
         The instructions largely track the relevant federal statutory definition of “misdemeanor
crime of domestic violence” found in 18 U.S.C. § 921(a)(33).
                                                -2-
       Acknowledging 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.

       The 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. Accordingly, the trial court convicted

Marshall for violating Code § 18.2-308.2:2.

       On appeal, Marshall again challenges the sufficiency of the evidence. Acknowledging

that some violations of Code § 18.2-57.2 involve the use or attempted use of physical force and

thus qualify as misdemeanor crimes of domestic violence, he continues to maintain that not all

violations of Code § 18.2-57.2 involve such force. As a result, he argues that the evidence at

trial was insufficient to prove that he had committed a misdemeanor crime of domestic violence,

and therefore, was insufficient to prove that he made a false statement on ATF Form 4473 in

violation of Code § 18.2-308.2:2.

                                                -3-
                                           ANALYSIS

                                      I. Standard of Review

       In general, when reviewing a challenge to the sufficiency of the evidence to support a

conviction, an appellate court considers the evidence in the light most favorable to the

Commonwealth, the prevailing party below, and reverses the judgment of the trial court only

when its decision is plainly wrong or without evidence to support it. See Farhoumand v.

Commonwealth, 288 Va. 338, 351 (2014). However, when a sufficiency challenge turns on

whether a particular fact or circumstance falls within a statutory definition, we must “construe

statutory language to answer the question. That function presents a pure question of law which

we consider de novo on appeal.” Cartagena v. Commonwealth, 68 Va. App. 202, 207 (2017)

(quoting Smith v. Commonwealth, 282 Va. 449, 453-54 (2011)). Marshall’s argument that a

violation of Code § 18.2-57.2 does not necessarily constitute a misdemeanor crime of domestic

violence presents such a challenge.

                            II. Required forms for acquiring a firearm

       Both Virginia and federal law impose certain requirements on firearms dealers and the

people who seek to acquire firearms from those dealers. See, e.g., Code § 18.2-308.2:2(A)

(requiring a person seeking to acquire a firearm from a licensed firearm dealer in Virginia to

provide the dealer with written “consent . . . , on a form to be provided by the Department of

State Police, to have the dealer obtain criminal history record information” and specified

identifying and criminal history information); Code § 18.2-308.2:2(B) and (C) (requiring

Virginia firearms dealers to collect certain information from customers and submit that

information to the Virginia State Police to allow for a criminal background check); 18 U.S.C.

§§ 922-24 (imposing record and other requirements on firearms dealers and limiting to whom




                                               -4-
firearms may be legally sold); 24 CFR § 478.124 (requiring that a firearms dealer obtain ATF

Form 4473 from any person who seeks to acquire a firearm).

       In his attempt to acquire the firearm in this case, Marshall provided McCue a completed

ATF Form 4473 “[a]s required by law[.]” Smith, 282 Va. at 452; see also 24 CFR § 478.124(c).

Code § 18.2-308.2:2(K) makes it a felony for any person to “willfully and intentionally mak[e] a

materially false statement on the consent form required in subsection B or C or on such firearm

transaction records as may be required by federal law . . . .”2 Thus, if the evidence was sufficient

to establish that Marshall made a materially false statement on ATF Form 4473, the evidence

was sufficient to support his conviction for violating Code § 18.2-308.2:2.3

              III. Code § 18.2-57.2 and misdemeanor crimes of domestic violence

       Determining whether the evidence was sufficient to support Marshall’s conviction for

violating Code § 18.2-308.2:2 requires the interpretation of two different statutes, one state and

one federal. First, we must determine the necessary elements underlying Marshall’s prior

conviction for violating Code § 18.2-57.2, a question of Virginia law. Next, we must determine




       2
         Although Code § 18.2-308.2:2 makes it a crime in Virginia to provide a false answer on
any firearms form that is required by the federal law, such as ATF Form 4473, the indictment did
not charge Marshall with making a false statement on a form required by federal law. Rather, it
charged him with making a false statement on a “form required by subsection B or C of
§ 18.2-308.2:2 of the Code of Virginia . . . .” Marshall concedes, however, that the Virginia
State Police have adopted ATF Form 4473, and therefore, it is also a “form required by
subsection B or C of § 18.2-308.2:2 of the Code of Virginia . . . .”
       3
          Marshall also argued at trial that he did not intentionally provide a false response on the
form because, despite his guilty plea in 2009, he did not understand that he had been convicted.
The trial court rejected this argument finding that the explanation “flies in the face of common
sense[.]” Marshall does not challenge this portion of the trial court’s ruling on appeal.
Accordingly, there is no issue on appeal as to whether the statement was made “willfully and
intentionally.”
                                                  -5-
whether such a conviction meets the definition of a “misdemeanor crime of domestic violence”

as that term is defined in 18 U.S.C. § 921(a)(33), a question of federal law.4

                                       A. Code § 18.2-57.2

       Code § 18.2-57.2(A) provides that “[a]ny person who commits an assault and battery

against a family or household member is guilty of a Class 1 misdemeanor.” Because, like other

Virginia statutes involving assault and assault and battery, Code § 18.2-57.2 does not define

“assault and battery,” we assume the General Assembly intended to incorporate the common law

definition. Carter v. Commonwealth, 269 Va. 44, 46 (2005).

       At common law, “[a] battery is the least touching of another, willfully or in anger,

including touching done in the spirit of rudeness or insult.” Edwards v. Commonwealth, 65

Va. App. 655, 664 (2015) (citing Hinkel v. Commonwealth, 137 Va. 791, 794 (1923)); see also

Adams v. Commonwealth, 33 Va. App. 463, 468 (2000) (“Whether a touching is a battery

depends on the intent of the actor, not on the force applied.”). Marshall concedes that the 2009

conviction order established that, at a minimum, he committed an assault and an unprivileged

touching of a family member “willfully or in anger,” to include a touching motivated only by a

“spirit of rudeness or insult.” Edwards, 65 Va. App. at 664. He argues that, standing alone, the

order proves no more than that and that, absent some additional evidence of the degree of force




       4
         Marshall argues that, because this is a Virginia offense, Virginia is not necessarily
bound by the federal definition of “misdemeanor crime of domestic violence.” Although the
General Assembly is free to adopt its own definition for the purposes of Virginia law, the
decisions of the General Assembly to criminalize making false statements on “firearm
transaction records as may be required by federal law,” Code § 18.2-308.2:2(K), and of the
Virginia State Police to adopt ATF Form 4473 effectively incorporated the federal statutory
definitions accompanying the form into Virginia law.
                                                -6-
involved, the minimal contact necessary to constitute a battery in Virginia is insufficient to

establish that his crime qualifies as a “misdemeanor crime of domestic violence.”5

                                    B. 18 U.S.C. § 921(a)(33)

       Marshall’s denial that he previously had been convicted of a misdemeanor crime of

domestic violence was made on ATF Form 4473, a federal form. Accordingly, the relevant

definition of “misdemeanor crime of domestic violence” comes from federal law. Specifically,

for the purpose of ATF Form 4473, 18 U.S.C. § 921(a)(33)(A) defines “the term ‘misdemeanor

crime of domestic violence’” as

               an offense that—

               (i) is a misdemeanor under Federal, State, or Tribal law; and

               (ii) 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
               cohabiting 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.

(Emphasis added). It is undisputed that no evidence was introduced to suggest a weapon was

involved in the prior offense, and Marshall concedes that the evidence was sufficient to establish

all of the other elements of the offense except for the use of force element. Accordingly, the

question is whether all convictions for violating Code § 18.2-57.2 involve “the use or attempted

use of physical force” as that phrase is used in 18 U.S.C. § 921(a)(33)(A)(ii).

       From the time of its adoption, the meaning of “the use or attempted use of physical force”

in 18 U.S.C. § 921(a)(33)(A)(ii) spawned a significant amount of litigation. Because the



       5
         Marshall readily concedes that some violations of Code § 18.2-57.2 qualify as
“misdemeanor crimes of domestic violence.” His argument is that others do not, and therefore, a
mere conviction order is insufficient to establish whether a person has committed a qualifying
offense.
                                                 -7-
domestic assault and battery statutes adopted by the several states are not uniform, arguments

arose over whether a particular state statute contained a “use or attempted use of physical force”

element that would qualify the offense as a misdemeanor crime of domestic violence pursuant to

18 U.S.C. § 921(a)(33)(A)(ii).

       Code § 18.2-57.2 was no exception. In White v. United States, 606 F.3d 144 (4th Cir.

2010), the United States Court of Appeals for the Fourth Circuit addressed whether a conviction

for violating Code § 18.2-57.2 qualified as a conviction for a misdemeanor crime of domestic

violence. Recognizing that, in Virginia, a “battery may be accomplished with the slightest touch

and no physical injury is required,” id. at 148, the Fourth Circuit noted that there was a

significant split in the federal circuits as to whether such an offense involved “the use or

attempted use of physical force” so as to qualify as a misdemeanor crime of violence for the

purpose of 18 U.S.C. § 921(a)(33)(A)(ii). Id. at 149-50. Siding with those circuits that reasoned

that the slight touching necessary to constitute a common law battery did not require the

necessary use of force, the Fourth Circuit concluded that Code “§ 18.2-57.2 is not, on its face, a

‘misdemeanor crime of domestic violence’ . . . because the Virginia statute is not an ‘offense that

. . . has, as an element, the use or attempted use of physical force.’” Id. at 153.

       Given the significant circuit split noted by the Fourth Circuit in White, the United States

Supreme Court granted certiorari to address the issue in United States v. Castleman, 572 U.S.

157 (2014). Although the Castleman Court was addressing a scenario in which the defendant

was convicted of a Tennessee misdemeanor for having “‘intentionally or knowingly cause[d]

bodily injury to’ the mother of his child . . . ,” id. at 161 (quoting Tenn. Code Ann.

§ 39-13-111(b) (Supp. 2002)), the majority went further regarding what qualified as a

“misdemeanor crime of violence” as that term is defined by 18 U.S.C. § 921(a)(33).

Specifically, the Castleman majority stated: “we therefore hold that the requirement of ‘physical

                                                 -8-
force’ is satisfied . . . by the degree of force that supports a common-law battery conviction.”

Castleman, 572 U.S. at 168.6

       In light of this unequivocal statement, the Fourth Circuit’s earlier contrary conclusion in

White is erroneous7 and any conviction for violating Code § 18.2-57.2 involves a sufficient use

of physical force to qualify as a conviction for a “misdemeanor crime of domestic violence” as

that term is used in 18 U.S.C. § 921(a)(33).8 Accordingly, the 2009 conviction order for assault

and battery of a family member in violation of Code § 18.2-57.2, coupled with his statement that

the incident involved his former spouse, established that Marshall had previously been convicted

of a misdemeanor crime of domestic violence. Therefore, the evidence was sufficient to

establish that Marshall made a materially false statement on the ATF form, and thus, was

sufficient to support his conviction for violating Code § 18.2-308.2:2.




       6
         In Castleman, the United States Supreme Court was addressing 18 U.S.C. § 922(g)(9)’s
prohibition on possession of a firearm by any person “who has been convicted in any court of a
misdemeanor crime of domestic violence.” As in the instant case, 18 U.S.C. § 922(g)(9) applies
the definition of “misdemeanor crime of domestic violence” found in 18 U.S.C. § 921(a)(33).
       7
         In United States v. Carthorne, 878 F.3d 458, 468 (4th Cir. 2017), the Fourth Circuit
expressly recognized that its reasoning in White was rejected by the United States Supreme
Court in Castleman.
       8
          Although a Tennessee statute was at issue in Castleman, the Court’s opinion makes
clear that its decision applies to Code § 18.2-57.2. In an opinion concurring in the judgment,
Justice Scalia championed a “narrower interpretation of § 921(a)(33)(A)(ii)” and criticized the
majority’s adoption “of a much broader one that treats any offensive touching, no matter how
slight, as sufficient.” Castleman, 572 U.S. at 175 (Scalia, J., concurring in judgment). In
criticizing the majority’s interpretation, Justice Scalia listed ten states whose assault and battery
statutes he believed fell outside the scope of 18 U.S.C. § 921(a)(33), including Virginia’s. Id. at
178-79 n.5 (Scalia, J., concurring in judgment). Responding to Justice Scalia’s criticism, the
majority rejected an interpretation of 18 U.S.C. 921(a)(33) that excluded the relevant statutes of
the ten states identified by Justice Scalia. Id. at 167-68.
                                                  -9-
                                         CONCLUSION

         Because Marshall’s conviction for violating Code § 18.2-57.2 constitutes a conviction for

a crime of domestic violence as that term is defined under the relevant federal statute, the

evidence was sufficient to support Marshall’s conviction for making a false statement on ATF

Form 4473 in violation of Code § 18.2-308.2:2. Accordingly, we affirm the judgment of the trial

court.

                                                                                          Affirmed.




                                               - 10 -
