PRESENT: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and 

Lemons, JJ., and Compton, S.J. 

DEENA ANNE ESTEBAN OPINION BY 

 SENIOR JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 022524 October 31, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

 The dispositive question in this criminal appeal is whether 

the statute proscribing possession of a firearm on school 

property is one of strict criminal liability, or whether proof 

of mens rea or scienter is required to support a conviction for 

its violation. 

 Code § 18.2-308.1(B), as pertinent here, provides that 

"[i]f any person possesses any firearm designed or intended to 

expel a projectile . . . while such person is upon . . . any 

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

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

 Indicted by a grand jury in Prince William County for 

violation of the foregoing statute, defendant Deena Anne Esteban 

was tried by a jury in October 2000. During the trial, the 

court refused to grant an instruction tendered by the defendant 

requiring the Commonwealth to prove mens rea or scienter. The 

court ruled "that this is a strict liability crime." The 

defendant was found guilty and sentenced to a suspended term of 

incarceration plus a fine. 
 Upon review, a panel of the Court of Appeals of Virginia, 

one judge dissenting, affirmed the conviction in an unpublished 

order and opinion. Esteban v. Commonwealth, Record No. 0028-01-

4 (August 27, 2002). The Court of Appeals stated: "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 [so] instruct 

the jury to be harmless." 

 We awarded the defendant this appeal limited to 

consideration of the harmless error issue and to the claim that 

the Court of Appeals erred "in not holding that mens rea is an 

element of Code § 18.2-308.1[(B)]." In the view we take of the 

case, the only issue we need discuss is the mens rea question. 

 The facts are uncomplicated. In our summary, when there 

are conflicting facts, we shall recite them in the light most 

favorable to the defendant. This is in accord with the settled 

rule of appellate procedure that "[w]hen reviewing a trial 

court's refusal to give a proffered jury instruction, we view 

the evidence in the light most favorable to the proponent of the 

instruction." Commonwealth v. Vaughn, 263 Va. 31, 33, 557 

S.E.2d 220, 221 (2002). See Commonwealth v. Leal, 265 Va. 142, 

145, 574 S.E.2d 285, 287 (2003). 

 On March 6, 2000, a Monday, a teacher in a public 

elementary school in Prince William County discovered a zippered 

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yellow canvas bag on her classroom floor about 1:30 p.m. The 

bag contained a loaded .38 caliber revolver, as well as other 

items, belonging to the defendant. 

 The bag had been left there by the defendant, employed by 

the school system as an art teacher. She had come to the room 

earlier that day to teach the students, most of whom were in 

wheelchairs due to physical handicaps. 

 According to the defendant, she had removed numerous items 

from the bag on the previous Saturday, placed the gun in the 

bag, and took "it down to the store with me." Upon returning to 

her home from shopping, she placed the bag in a closet without 

removing the gun. 

 On Monday, the day of the incident, defendant took the 

yellow bag, along with a portfolio case and a book bag, to the 

school. She usually carried in the bag small tools, which she 

used in her instruction to fourth-grade students. As she 

entered the classroom, she carried the yellow bag containing the 

revolver and a number of teaching aids. Later, as defendant 

left the classroom, she took the teaching aids but left the 

yellow bag. 

 When confronted with the presence of the gun in the bag on 

school property, defendant said, "I don't usually carry the bag. 

I forgot it was in there. I had been using it over the 

weekend." Defendant maintained there was nothing about the bag 

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that led her to believe the firearm was inside. However, she 

did not dispute that she was in possession of the bag and thus 

the revolver. 

 At trial, the instruction in issue would have required the 

Commonwealth to prove that defendant "knew she possessed the 

firearm." The defendant contends the trial court erred in 

refusing the instruction because, she argues, mens rea is an 

element of this statutory offense. 

 In support of her argument, the defendant refers to Code 

§ 1-10, which provides that the common law of England, "insofar 

as it is not repugnant to the principles of the Bill of Rights 

and Constitution of this Commonwealth, shall continue in full 

force within the same, and be the rule of decision, except as 

altered by the General Assembly." See Weishaupt v. 

Commonwealth, 227 Va. 389, 399-400, 315 S.E.2d 847, 852 (1984). 

 The defendant relies upon the proposition, set forth in 

Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 

(1974), that a statute must be "read along with the provisions 

of the common law, and the latter will be read into the statute 

unless it clearly appears from express language or by necessary 

implication that the purpose of the statute was to change the 

common law." This is because the General Assembly "is presumed 

to have known and to have had the common law in mind in the 

enactment of a statute." Id.

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 Continuing, the defendant relies upon the following 

statement in Parrish v. Commonwealth, 81 Va. 1, 14 (1884), that 

"whenever a statute makes any offence [a] felony, it 

incidentally gives it all the properties of a felony at common 

law." The defendant points out that the requirement of some 

mens rea for a crime was deeply embedded in the common law, and 

that the existence of a mens rea is the rule of, rather than the 

exception to, the principles of Anglo-American criminal 

jurisprudence, citing Staples v. United States, 511 U.S. 600, 

605 (1994). 

 Thus, defendant contends, because the offense charged here 

is a felony, mens rea must be read into the statute as an 

element of the offense, even though the statute does not include 

an express mens rea element. We do not agree with defendant. 

 At the outset, it should be recognized that Code § 18.2-

308.1 is purely a statutory offense, there being no equivalent 

common law crime. And, as the Attorney General points out, the 

defendant does not argue that the General Assembly could not 

have dispensed with a mens rea element in enacting § 18.2-

308.1(B); she merely argues that it did not do so.

 Additionally, the law is clear that the legislature may 

create strict liability offenses as it sees fit, and there is no 

constitutional requirement that an offense contain a mens rea or 

scienter element. Maye v. Commonwealth, 213 Va. 48, 49, 189 

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S.E.2d 350, 351 (1972). Thus, courts construe statutes and 

regulations that make no mention of intent as dispensing with it 

and hold that the guilty act alone makes out the crime. 

Morissette v. United States, 342 U.S. 246, 256, 258 (1952); 

Makarov v. Commonwealth, 217 Va. 381, 385-86, 228 S.E.2d 573, 

575-76 (1976) (statute on its face did not support contention 

that a mens rea or scienter requirement should be read into the 

enactment). 

 In the final analysis, the issue whether mens rea or 

scienter is a necessary element in the indictment and proof of a 

particular crime becomes a question of legislative intent to be 

construed by the court. United States v. Balint, 258 U.S. 250, 

251-52 (1922). 

 A statute must be construed with reference to its subject 

matter, the object sought to be attained, and the legislative 

purpose in enacting it; the provisions should receive a 

construction that will render it harmonious with that purpose 

rather than one which will defeat it. Stanley v. Tomlin, 143 

Va. 187, 195, 129 S.E. 379, 382 (1925). 

 Clearly, the intent underlying Code § 18.2-308.1(B) is to 

assure that a safe environment exists on or about school 

grounds. Manifestly, the General Assembly recognized that the 

presence of a loaded revolver on school property creates great 

dangers for students, teachers, and other school personnel, 

6
either from the accidental or intentional discharge of the 

weapon. The fact that a person, under the circumstances of this 

case, innocently brings a loaded revolver onto school property 

does not diminish that danger. 

 Thus, to insert a mens rea element into the offense, and to 

require proof thereof, would defeat the statutory purpose, which 

is to criminalize the introduction of firearms into a school 

environment. So we will not add, by implication, language to 

the statute that the legislature expressly has chosen not to 

include. 

 Consequently, we hold that the trial court correctly 

decided, in refusing the instruction in question, that this 

statute is one of strict criminal liability, and that the 

Commonwealth was required to prove only that the defendant had 

possessed, on school property, a firearm of the type described 

in the statute.∗

 Accordingly, the judgment of the Court of Appeals will be 

affirmed because it reached the correct result, albeit for the 

wrong reason. See Mitchem v. Counts, 259 Va. 179, 191, 523 

S.E.2d 246, 253 (2000). 

 

∗

As an aside, we mention that defendant had been granted a 

concealed handgun permit. However, Code § 18.2-308(O) provides 

that such a permit "shall not thereby authorize the possession 

of any handgun . . . on property or in places where such 

possession is otherwise prohibited by law." 

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Affirmed. 

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