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. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 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 
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. 

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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 -