COURT OF APPEALS OF VIRGINIA 

Present: Judges Petty, O’Brien and Russell 

Argued at Lexington, Virginia 

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). 

PUBLISHED 
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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). 
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 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. 
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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 
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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.” 
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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. 
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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. 
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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 (4thCir. 

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 
- 9 - 

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.
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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.