COURT OF APPEALS OF VIRGINIA 

Present: Judges Humphreys, Russell and Senior Judge Bumgardner 

Argued at Norfolk, Virginia 

ANGEL ALEXIS CARTAGENA, A/K/A 

 VEGUILLA ANGEL ALEXIS CARTEGENA 

 OPINION BY 

v. Record No. 2002-16-1 JUDGE WESLEY G. RUSSELL, JR. 

 NOVEMBER 28, 2017 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

H. Thomas Padrick, Jr., Judge 

 Melissa I. Bray, Assistant Public Defender, for appellant. 

 Leah A. Darron, Senior Assistant Attorney General (Mark R. 

Herring, Attorney General, on brief), for appellee. 

 Angel Alexis Cartagena was convicted in a bench trial of falsifying a firearm consent form 

in violation of Code § 18.2-308.2:2, attempted possession of a firearm by a felon in violation of 

Code § 18.2-308.2, and possession of a firearm by a felon in violation of Code § 18.2-308.2. On 

appeal, he contends that the evidence presented at trial was insufficient in that it did not establish the 

range of punishment applicable to his prior felony conviction from the state of New York. 

BACKGROUND 

 On May 8, 2015, Cartagena entered Liberty Pawn II in Virginia Beach and told the store 

manager that he was interested in purchasing a firearm. He asked her about the procedure for 

purchasing a gun, and she responded that he was required to fill out two separate forms, one for 

the state government and the other for the federal government. Cartagena inquired about 

questions 10A and 10B on the federal form, indicating that his race was not listed on the form. 

The manager created a box “NA” for Cartagena to check. 

PUBLISHED 
- 2 - 

 The manager testified that, if a prospective firearm purchaser cannot read or write, she 

does not give them an application. If an applicant has a question of whether or not he or she has 

been convicted of a felony, she instructs the applicant to go to the local police precinct and speak 

with an officer to find out whether he or she is eligible to purchase a firearm. The manager did 

not have any such conversation with Cartagena. He marked the corresponding boxes on each 

form that he was not a convicted felon. 

 Cartagena provided the forms to the manager for processing. He failed the background 

check and was denied a firearms purchase. As a result, warrants eventually were issued for his 

arrest related to his attempted purchase. 

 Officer J.S. Shelton stopped the car that Cartagena was driving on November 4, 2015 for 

outstanding warrants for the registered owner. The officer verified Cartagena’s identity as the 

car’s registered owner, confirmed that there were outstanding warrants for Cartagena for 

firearms offenses (including falsifying a firearms form), and placed him in the back seat of his 

patrol vehicle. Cartagena then stated that he had a weapon in the back seat of his car. Officer 

Shelton searched Cartagena’s car and found a Ruger .45 caliber semiautomatic handgun in a 

small compartment behind the passenger seat. Cartagena told Officer Shelton that he had tried to 

purchase a firearm at a pawn shop but he was not permitted to do so, so he purchased this gun 

from a gun trader on Facebook for $400. Cartagena showed Officer Shelton his bill of sale for 

the firearm, saying that if he “got caught with a gun” he would not be in any trouble. 

 The Commonwealth introduced a Uniform Sentence and Commitment order from the 

Fulton County Clerk’s office, State of New York, as exhibit 2. The order indicates that upon a 

plea of guilty, Cartagena was convicted of “att[empt] assault,” citing PL-110-120.05-06. The 

order specifically denotes that the offense is a felony. Along with the conviction order, the 

Commonwealth introduced a copy of the statute that was in effect at the time of the conviction, 
- 3 - 

indicating that N.Y. Penal Law § 120.05, Assault in the second degree, is a Class D felony.1

 

Cartagena did not object to the introduction of either the conviction order or the statute. 

 At the close of the Commonwealth’s case, Cartagena moved to strike the evidence, 

arguing, “[j]ust because New York calls this a felony does not in and of itself . . . qualify it 

necessarily as a felony without knowing what the punishments are available.” Cartagena argued 

that “in Virginia a felony has to do with punishment . . . the punishment is what dictates whether 

something’s a felony or a misdemeanor.” Cartagena then argued that no evidence had “been 

presented to the court that discusses the punishment” range under the New York statute. 

 The Commonwealth countered by arguing that the evidence conclusively established that 

Cartagena had been convicted of a felony under the laws of the state of New York, which is all 

that the statute requires. Additionally, the Commonwealth asked the trial court to take judicial 

notice that, for the crime at issue, New York law provided for a potential term of imprisonment 

of greater than one year, which is a felony punishment in Virginia. 

Noting that the New York record “says felony . . . [i]t clearly says a felony . . . ,” the trial 

court denied the motion to strike. In doing so, the trial court did not indicate whether it was 

taking judicial notice that the New York offense for which Cartagena had been convicted carried 

a maximum punishment of greater than one year in prison. 

Cartagena testified that he was born in Puerto Rico and moved to New York in 2011. He 

claimed that, when he was convicted in New York, he did not speak English and that he did not 

understand what happened to him. He testified, that when he applied to purchase the gun at 

Liberty Pawn, he said he could not read the paperwork and asked for help. He did not 

 1

 We note that, pursuant to N.Y. Penal Law § 100.5, a conviction for an attempt to 

commit a Class D felony is a Class E Felony. Pursuant to N.Y. Penal Law § 70.00, a Class E 

felony is punishable by a term of imprisonment of up to four years. 
- 4 - 

understand why his application had been denied. He believed that he legally could possess a 

firearm if he had a bill of sale for the gun. Cartagena then rested his case. 

 Cartagena renewed his motion to strike, reiterating that a felony in New York is not 

necessarily a felony in Virginia. The court again denied the motion and found Cartagena guilty of 

all charges. 

 This appeal followed. Cartagena challenges all of his convictions in a single assignment 

of error.2

 He argues that all of his convictions must be reversed because the Commonwealth’s 

evidence was insufficient to prove that he previously had been convicted of a felony as that term 

is used in the relevant statutes. 

ANALYSIS 

 We apply a deferential standard of review to challenges based on the sufficiency of the 

evidence, and the decision of the “[t]he lower court will be reversed only if that court’s judgment 

is plainly wrong or without evidence to support it.” Allen v. Commonwealth, 287 Va. 68, 72, 

752 S.E.2d 856, 859 (2014) (internal quotation marks and citation omitted). “Nevertheless, 

when an appeal presents the question whether the facts proved, and the legitimate inferences 

drawn from them, fall within the language of a statute, we must construe statutory language to 

answer the question. That function presents a pure question of law which we consider de novo

on appeal.” Smith v. Commonwealth, 282 Va. 449, 453-54, 718 S.E.2d 452, 454 (2011); see 

also Miller v. Commonwealth, 64 Va. App. 527, 537, 769 S.E.2d 706, 710 (2015) (noting that 

“[t]o the extent our analysis of the sufficiency of the evidence requires us to examine the 

 2

 Cartagena’s sole assignment of error reads: 

The trial court erred in finding the appellant guilty of falsifying a 

firearm consent form, attempted possession of a firearm by a 

convicted felon and possession of a firearm by a convicted felon 

because the evidence was not sufficient to establish that appellant 

was previously convicted of a felony. 
- 5 - 

statutory language, we review issues of statutory construction de novo on appeal”). “[W]e 

consider the evidence presented at trial in the light most favorable to the Commonwealth, the 

prevailing party below.” Smallwood v. Commonwealth, 278 Va. 625, 629, 688 S.E.2d 154, 156 

(2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). 

 Here, it is undisputed that the evidence establishes that Cartagena had been convicted of a 

felony under the laws of the state of New York prior to his attempted purchase of a firearm at 

Liberty Pawn and prior to his ultimate possession of a firearm purchased elsewhere.3

 Cartagena 

argues that, to establish violations of Code §§ 18.2-308.2 and 18.2-308.2:2, the Commonwealth 

was required to prove that his conviction from New York carried a potential punishment of at 

least one year in prison. Cartagena posits that, because Code § 18.2-10 provides that the 

lowest-level Virginia felony carries such a potential punishment, an out-of-state conviction must 

carry such a potential punishment for it to be a “felony” for the purposes of Code §§ 18.2-308.2 

and 18.2-308.2:2. 

A. Code § 18.2-308.2 

 As pertinent here, Code § 18.2-308.2(A) provides that 

[i]t shall be unlawful for . . . any person who has been convicted of 

a felony . . . whether such conviction or adjudication occurred 

under the laws of the Commonwealth, or any other state, the 

District of Columbia, the United States or any territory thereof, to 

knowingly and intentionally possess or transport any firearm or

ammunition for a firearm . . . . 

(Emphasis added). Thus, by its express terms, Code § 18.2-308.2(A) prohibits any person who 

has been convicted of a felony “under the laws of the Commonwealth, or any other state” from 

knowingly and intentionally possessing a firearm. 

 3

 Cartagena does not challenge that the evidence established that he attempted to possess 

a firearm when he sought to purchase one at Liberty Pawn or that he knowingly and intentionally 

possessed the firearm that was recovered from his car the night he was arrested. 
- 6 - 

 It is undisputed that the evidence established that Cartagena “had been convicted of a 

felony . . . under the laws of” the state of New York, which, without question, is another state. 

Regarding the existence of a felony conviction, the express terms of the statute require nothing 

more, and therefore, the evidence was sufficient to support Cartagena’s convictions for attempted 

possession of a firearm in violation of Code § 18.2-308.2(A) and possession of a firearm in 

violation of Code § 18.2-308.2(A). 

 Cartagena’s argument, that the statute requires that a felony conviction from another 

sovereign must carry a potential punishment equivalent to the potential punishment for a 

Virginia felony is not supported by the plain language of the statute. To reach Cartagena’s 

proposed result, we would have to read the statute as providing that the firearm prohibition arises 

when one has been convicted of a “Virginia felony” or has been convicted of a felony from 

another covered sovereign “so long as the potential punishment for that felony meets the 

minimum punishment for a Virginia felony.”4

 In short, Cartagena asks us to interpret the statute as if it contains words and limits that do 

not actually appear in the statute. This we cannot do. “When the legislature has spoken plainly 

it is not the function of courts to change or amend its enactments under the guise of construing 

 4

 Cartagena bases his argument on our decision in Turner v. Commonwealth, 38 Va. App. 

851, 568 S.E.2d 468 (2002). That reliance is misplaced. In Turner, the defendant was charged 

with unlawfully possessing a firearm after previously having been convicted of a felony in 

violation of Code § 18.2-308.2(A). Id. at 853, 568 S.E.2d at 469. The predicate prior conviction 

offered by the Commonwealth was a conviction for an offense under the Uniform Code of 

Military Justice. Id. The UCMJ does not categorize offenses as felonies or misdemeanors. Id. 

at 854, 568 S.E.2d at 469. Faced with a prior conviction from a system that did not categorize 

offenses as felonies or misdemeanors, this Court held that, because the offense “carrie[d] a 

‘maximum punishment’ of ‘confinement for five years,’ together with ‘dishonorable discharge, 

[and] forfeiture of all pay and allowances,’ a penalty clearly consistent with a felony in Virginia 

. . . [,] [t]he trial court . . . correctly classified the UCMJ offense a ‘felony’ for purposes of 

Code § 18.2-308.2(A).” Id. at 857, 568 S.E.2d at 471. Our holding in Turner is limited to the 

anomalous situation where another jurisdiction does not classify an offense as either a felony or 

misdemeanor; it has no application when, as here, the other jurisdiction classified the offense as 

a felony. 
- 7 - 

them. The province of [statutory] construction lies wholly within the domain of ambiguity, and 

that which is plain needs no interpretation.” Lahey v. Johnson, 283 Va. 225, 230, 720 S.E.2d 

534, 537 (2012) (internal quotation marks and citations omitted); see also Ulka Desai v. A. R. 

Design Grp., Inc., 293 Va. 426, 438, 799 S.E.2d 506, 512 (2017) (“We are not permitted, under 

the guise of judicial construction, to rewrite the plain language of a statute.”). 

 If the General Assembly had intended the firearm prohibition to be limited to convictions 

from other jurisdictions that carried punishments consistent with a Virginia felony or were 

otherwise the equivalent of a Virginia felony, it knew how to do so. The Code is replete with 

examples of offenses that are defined to include substantially similar offenses in other 

jurisdictions or that impose increased penalties for prior convictions from other sovereigns that 

are substantially similar to Virginia offenses.5

 The lack of such language here is fatal to 

 5

 See, e.g., Code § 18.2-46.1 (“predicate criminal act” defined as violation of certain 

Virginia statutes or “any substantially similar offense under the laws of another state or territory 

of the United States, the District of Columbia, or the United States”); Code § 18.2-60.3 

(enhanced penalty for stalking conviction if person previously has been convicted of violation of 

Code § 18.2-60.3(A) or “a substantially similar offense under the law of any other jurisdiction”); 

Code § 18.2-67.5:3 (life sentence for subsequent conviction of certain violent sex crimes if 

previously convicted of one of those crimes or “for felonies under the laws of any state or the 

United States that are substantially similar to those” listed); Code § 18.2-104 (enhanced 

punishment for multiple convictions for larceny as defined in the Code of Virginia or for 

convictions “of any substantially similar offense in any other jurisdiction”); Code § 18.2-248 

(enhanced penalties for multiple convictions of Code § 18.2-248 “or of a substantially similar 

offense in any other jurisdiction, which offense would be a felony if committed in the 

Commonwealth”); Code § 18.2-513 (“racketeering activity” defined as violation of certain 

Virginia statutes “or any substantially similar offenses under the laws of any other state, the 

District of Columbia, the United States or its territories”); Code § 19.2-297.1 (life imprisonment 

for third conviction for various Virginia felonies and “convictions under the laws of any state of 

the United States for any offense substantially similar” to the listed Virginia felonies); 

Code § 19.2-392.02 (“barrier crime” defined as a violation of delineated Virginia statutes “or any 

substantially similar offense under the laws of another jurisdiction”). The conclusion that the 

General Assembly’s decision not to utilize the “substantially similar” standard in the prohibition 

section of Code § 18.2-308(A) was the result of a conscious choice is supported by the decision 

of the General Assembly to incorporate that very standard in the enhanced penalty section of 

Code § 18.2-308.2(A). Specifically, the penalty section of Code § 18.2-308.2(A) imposes a 

five-year mandatory minimum punishment if the prior felony conviction was for a “violent 

felony as defined in § 17.1-805,” which, in turn, defines a violent felony as certain delineated 
- 8 - 

Cartagena’s proffered construction of Code § 18.2-308.2(A) because “[w]hen the General 

Assembly has used specific language in one instance, but omits that language or uses different 

language when addressing a similar subject elsewhere in the Code, we must presume that the 

difference in the choice of language was intentional.” Sarafin v. Commonwealth, 288 Va. 320, 

328, 764 S.E.2d 71, 76, (2014) (internal quotation marks and citations omitted). 

Accordingly, the Commonwealth’s evidence was sufficient to establish that Cartagena 

had the requisite prior felony conviction for the purposes of Code § 18.2-308.2(A), and therefore, 

the evidence was sufficient to support Cartagena’s convictions for attempted possession of a 

firearm by a convicted felon and possession of a firearm by a convicted felon. 

B. Code § 18.2-308.2:2 

 Code § 18.2-308.2:2(A) requires that a person seeking to purchase a firearm from a 

licensed firearm dealer in Virginia must 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.” In addition to providing such consent, the form requires that the 

prospective purchaser detail specific identifying information and answer certain questions, 

including whether the prospective purchaser “has . . . been convicted of a felony offense or found 

guilty or adjudicated delinquent as a juvenile 14 years of age or older at the time of the offense 

of a delinquent act that would be a felony if committed by an adult . . . .” Id. Code 

§ 18.2-308.2:2(B)(1) provides that “[n]o [firearm] dealer shall sell, rent, trade or transfer from 

his inventory any such firearm to any other person who is a resident of Virginia until he has 

(i) obtained written consent and the other information on the consent form specified in 

 

Virginia felonies and “any substantially similar offense under the laws of any state, the District 

of Columbia, the United States or its territories.” 
- 9 - 

subsection A . . . .”6

 In turn, Code § 18.2-308.2:2(K) makes it a Class 5 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 . . . .” 

 Cartagena was charged with violating Code § 18.2-308.2:2(K) for “willfully and 

intentionally make a false statement on a form consenting to a criminal history information check 

in connection with the purchase of a firearm . . . .”7 Specifically, the Commonwealth alleged that 

Cartagena’s representation that he had not been convicted of a felony on the required state 

consent form constituted a materially false statement prohibited by Code § 18.2-308.2:2(K).8

 Making essentially the same argument he made regarding his convictions for violating 

Code § 18.2-308.2(A), Cartagena argues on appeal that the evidence was insufficient to prove he 

made “a materially false statement as to whether he was ever convicted of a felony . . . [because 

t]he Commonwealth failed to prove that [his] New York conviction qualifies as a felony” for the 

purposes of Code § 18.2-308.2:2. We disagree. 

 6

 Code § 18.2-308.2:2(C) contains a similar prohibition on a firearm dealer selling a 

firearm to a non-Virginia resident without first obtaining the form required by subsection A of 

Code § 18.2-308.2:2. Cartagena indicated on the state consent form that he was a Virginia 

resident. 

7

 Cartagena does not challenge in this appeal that his statements on the state consent form 

were willfully and intentionally made. 

8

 Although Cartagena also indicated on the federal form that he was not a convicted felon 

and Code § 18.2-308.2:2(K) applies both to the state consent form and federal firearms forms, 

the parties focus on the state consent form. The indictment specifically charges Cartagena with 

making “a false statement on a form consenting to a criminal history information check in 

connection with the purchase of a firearm . . . .” (Emphasis added). The state form required by 

Code § 18.2-308.2:2(A) that was filled out by Cartagena specifically provides that Cartagena 

“hereby consent[s] to having the transferor (seller) request a criminal history record information 

check be performed by the Department of State Police about me in connection with this 

transaction . . . ,” and thus, is a form “consenting to a criminal history information check.” In 

light of our ultimate conclusion regarding the state consent form, we need not, and thus do not, 

decide whether the federal form filled out by Cartagena falls within the indictment’s description 

of “a form consenting to a criminal history information check.”
- 10 - 

 As noted above, the plain language the General Assembly chose to utilize in 

Code § 18.2-308.2(A) makes clear that a convicted felon may not possess a firearm regardless of 

“whether such conviction or adjudication occurred under the laws of the Commonwealth, or any 

other state, the District of Columbia, the United States or any territory thereof . . . .” Although 

the reference to felony convictions in Code § 18.2-308.2:2 does not state explicitly that it 

encompasses convictions that other states have classified as felonies independent of how 

Virginia might classify the offenses, the lack of any limiting language, the information contained 

on the state consent form, and context all inexorably lead to the conclusion that Cartagena 

provided a materially false answer when he indicated that he had not been convicted of a felony. 

 The relevant question on the state consent form asked: “Have you been convicted of a 

felony offense or found guilty or adjudicated delinquent as a juvenile 14 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?” 

There is nothing in the question that suggests that the question is somehow limited or qualified 

by the way Virginia punishes or classifies felonies. The question’s absolute terms, “Have you 

been convicted of a felony offense . . .?,” requires that a person who has ever been convicted of a 

felony anywhere answer in the affirmative regardless of whether Virginia or another jurisdiction 

would have classified or punished the offense differently. Given his New York felony 

conviction, Cartagena could not answer the question truthfully with anything other than an 

affirmative response. 

 This conclusion finds further support from information Cartagena was provided on the 

form itself. Immediately after the question regarding felony convictions, the form instructs a 

prospective purchaser to “See Exceptions on back of form.” It also requires that a prospective 

purchaser “Initial here to document reading and understanding of the Exceptions on the back of 
- 11 - 

form.” The “Exceptions” section of the state consent form Cartagena signed and initialed 

provides, in pertinent part, as follows: 

 A person who has been convicted of a felony is not 

prohibited from purchasing, receiving, or possessing a firearm if: 

(1) under the law where the conviction occurred, the person has 

been pardoned, this conviction has been expunged or set aside, or 

the person has had civil rights (the right to vote, sit on a jury and 

hold public office) restored AND (2) the person is not prohibited 

by the law where the conviction occurred from receiving or 

possessing firearms. Persons subject to this exception should 

answer “no” to question 7. 

 It shall be unlawful for (i) any person who has been 

convicted of a felony . . . whether such conviction or adjudication 

occurred under the laws of the Commonwealth, or any other state, 

the District of Columbia, the United States or any territory thereof, 

to knowingly and intentionally possess or transport any firearm. 

(Emphasis added). 

 This language makes clear that the question encompassed the New York felony 

conviction as defined by New York. In stating that a person is barred from possessing a firearm 

if “convicted of a felony . . . whether such conviction or adjudication occurred under the laws of 

the Commonwealth, or any other state, the District of Columbia, the United States or any 

territory thereof,” the form tracks the language of Code § 18.2-308.2(A). Thus, the same reasons 

that support our conclusion that the prohibition of Code § 18.2-308.2(A) is not limited to felonies 

that would be punished by a felony sentence in Virginia apply here as well. Moreover, the 

reference to the effect of a pardon “under the law where the conviction occurred” makes clear 

that the law of the state where the conviction occurred is to be considered. Thus, the 

“Exceptions” section makes clear that a felony conviction from another state requires an 

affirmative response to the relevant question even if Virginia would have classified or punished 

the offense differently. 
- 12 - 

 Finally, our conclusion is consistent with the purpose of the statutory scheme as a whole. 

The state consent form is designed to help ferret out prospective gun purchasers who are barred 

by Code § 18.2-308.2(A) or other provisions of law from possessing firearms before a firearm 

can be sold. It would be absurd to bar persons with a felony conviction under the laws of another 

state from possessing a firearm but allow such persons to answer “no” to the felony question on 

the state consent form just because the other state punished the offense differently than Virginia 

does. 

Given our conclusion regarding the meaning of the felony prohibition in 

Code § 18.2-308.2(A), logic dictates that the same construction of felony be applied for the 

purposes of establishing a conviction for a violation of Code § 18.2-308.2:2(K) for making a 

materially false statement regarding a prior felony conviction. Accordingly, because the 

evidence established that Cartagena previously had been convicted of a felony under the laws of 

the state of New York, the evidence was sufficient to establish that he made a materially false 

statement on the state consent form when he denied having ever been so convicted. 

CONCLUSION 

 Because the evidence established that Cartagena had a prior felony conviction under the 

laws of the state of New York, the evidence was sufficient to support the prior felony conviction 

element of his convictions for attempted possession of a firearm by a felon in violation of 

Code § 18.2-308.2, possession of a firearm by a felon in violation of Code § 18.2-308.2, and 

falsifying a firearm consent form by making a materially false statement regarding a prior felony 

conviction in violation of Code § 18.2-308.2:2. Accordingly, his convictions for these offenses are 

affirmed. 

Affirmed.