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), fo r appellant. Lauren C. Campbell, Assistant A ttorney General (Mark R. Herri ng, Attorney General, on brief), for appellee.

Quintus Delano Marshall was convicted in a bench trial of viol ating 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. S pecifically, 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 mem ber in violation of Code § 18.2-57. 2. On appeal, he contends that some violations of Code § 18.2-57.2 do not constitute “misdemea nor crimes of domestic violence,” and therefore, the ev idence was insufficient to supp ort 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 favorabl e to the Commonw ealth, the prev ailing party below.” Bolden v. Commonwealth, 275 Va. 144, 148 (2008).PUBLISHED- 2 - In 2009, years before the convicti on that he now appeals, Marsh all was convicted in the Circuit Court for the City of L ynchburg of misdemeanor assault and battery against a family member in violation of Code § 18.2- 57.2. That case, which invo lved Marshall’s former wife, originated in the juvenile and dom estic relations district cour t and was resolved by Marshall’s guilty plea in the circuit c ourt. A certified copy of the 2009 Lynchburg conviction was introduced into evidence at the t rial giving rise to this appea l. On February 3, 2017, Marshall entere d Vista Pawn located in Cam pbell County. Thomas McCue, the owner of Vista Pawn a nd a federally licensed firearm s dealer, waited on Marshall. According to McCue, Marshall soug ht to redeem a Glock pistol th at he previously had pawned. As part of the transaction, McC ue, as required by law, asked Ma rshall to complete ATF Form 4473. Question 11.i on the form asks w hether the applicant has ever been convicted in any court of a misdemeanor crime of domes tic violence. The instructions on the reverse of the form state, in part: Question 11.i. Misdemeanor C rime of Domestic Violence: A Federal, State, local, or tribal offense that is a misdemeanor under Federal, State, or tribal law a nd has, as an element, the use o r attempted use of physical force, or the threatened use of a dea dly 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 s pouse, parent, or guardian of t he victim. The term includes all misdemeanors that have as an element the use or attempte d 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 r esponse to Question 11.i.

1 The instructions largely track t he relevant federal statutory definition of “misdemeanor crime of domestic violence” found in 18 U.S.C. § 921(a)(33).- 3 - Acknowledging his prior convicti on, Marshall argued at trial t hat some violations of Code § 18.2-57.2 do not satisfy the definition of “misdemeanor crimes of domestic violence.” He reasoned that, because an assa ult and battery conviction in Virginia can be based on any offensive or rude touching, a conviction for violating Code § 1 8.2-57.2 does not necessarily involve “the use or attempted us e of physical force,” which is a necessary component of a misdemeanor crime of domestic violence. Specifically, he argue d that “[p]hysical force is something . . . different than a t ouching. Physical force is s omething like a robbery where it’s done with force, threat or intim idation.” From this he reasone d that the conviction order, standing alone, was insufficien t to establish that he had been convicted of a crime involving “the use or attempted use of physical force” and that the Commonweal th “must bring the alleged victim, or the criminal compla int, or something to show what th e 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 misdem eanor crime of domestic violence

. The trial court rejected this argument, concluding that the co nviction order established that Marshall had been convicte d of a misdemeanor crime of dome stic violence, and thus, Marshall’s response on ATF Fo rm 4473 was false. Accordingly, t he trial court convicted Marshall for violating Code § 18.2-308.2:2. On appeal, Marshall again challeng es the sufficiency of the ev idence. Acknowledging that some violations of C ode § 18.2-57.2 involve the use or att empted use of physical force and thus qualify as misdemeanor cri mes of domestic violence, he con tinues 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 misdeme anor crime of domestic violence, and therefore, was insufficient t o prove that he made a false s tatement on ATF Form 4473 in violation of Code § 18.2-308.2:2.- 4 - ANALYSIS I. Standard of Review In general, when reviewing a cha llenge to the sufficiency of t he evidence to support a conviction, an appellate court c onsiders the evidence in the li ght most favorable to the Commonwealth, the prevailing part y below, and reverses the judg ment of the trial court only when its decision is plainly wr ong or without evidence to suppo rt it. See Farhoumand v. Commonwealth, 288 Va. 338, 351 (2014). However, when a suffici ency challenge turns on whether a particular fact or ci rcumstance falls within a statut ory definition, we must “construe statutory language to answer the question. That function prese nts a pure question of law which we consider de novo on appeal.” Cartagena v. Commonwealth, 68 Va. App. 202, 207 ( 2017) (quoting Smith v. Commonwea lth, 282 Va. 449, 453-54 (2011)). M arshall’s argument that a violation of Code § 18.2-57.2 does not necessarily constitute amisdemeanor crime of domestic violence presents such a challenge. II. Required forms for acquiring a firearm Both Virginia and federal law i mpose certain requirements on f irearms dealers and the people who seek to acquire firear ms from those dealers. See, e .g., Code § 18.2-308.2:2(A) (requiring a person seek ing to acquire a firearm from a license d firearm dealer in Virginia to provide the dealer with writt en “consent . . . , on a form to b e provided by the Department of State Police, to have the dealer obtain criminal history record information” and specified identifying and criminal histor y information); Code § 18.2-308. 2:2(B) and (C) (requiring Virginia firearms dealers to col lect certain information from c ustomers and submit that information to the Virginia State Police to allow for a crimina l background check); 18 U.S.C. §§ 922-24 (imposing record and other requirements on firearms d ealers and limiting to whom- 5 - 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 f irearm in this case, Marshall pr ovided 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 “wil lfully and intentionally mak[e] a materially false statement on the consent form required in subs ection 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 viole nce Determining whether the eviden ce was sufficient to support Mar shall’s conviction for violating Code § 18.2-308.2:2 requi res the interpretation of tw o different statutes, one state and one federal. First, we must determine the necessary elements u nderlying Marshall’s prior conviction for violating C ode § 18.2-57.2, a question of Virgin ia law. Next, we must determine

2 Although Code § 18.2-308.2:2 makes it a crime in Virginia to p rovide a false answer on any firearms form that is requi red by the federal law, such as ATF Form 4473, the indictment did not charge Marshall with making a false statement on a form req uired by federal law. Rather, it charged him with making a false statement on a “form required b y subsection B or C of § 18.2-308.2:2 of the Code of Virginia . . . .” Marshall conce des, however, that the Virginia State Police have adopted ATF Form 4473, and therefore, it is a lso a “form required by subsection B or C of § 18.2-308.2:2 of the Code of Virginia . . . .”

3 Marshall also argued at tria l that he did not intentionally pr ovide a false response on the form because, despite his guilty plea in 2009, he did not under stand that he had been convicted. The trial court rejected this argument finding that the explana tion “flies in the face of common sense[.]” Marshall does not cha llenge this portion of the tria l court’s ruling on appeal. Accordingly, there is no issue on appeal as to whether the stat ement was made “willfully and intentionally.”- 6 - whether such a conviction meets the definition of a “misdemeano r crime of domestic violence” as that term is defined in 18 U .S.C. § 921(a)(33), a question o f 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 mem ber is guilty of a Class 1 mis demeanor.” Because, like other Virginia statutes involving a ssault and assaul t and battery, Co de § 18.2-57.2 does not define “assault and battery,” we assume the General Assembly intended to incorporate the common law definition. Carter v. Co mmonwealth, 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 spi rit of rudeness or insult.” Edwards v. Commonwealth, 65 Va. App. 655, 664 (2015) (citing Hin kel 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 a n 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 ins ult.” 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 thi s is a Virginia offense, Virg inia is not necessarily bound by the federal definition of “misdemeanor crime of domest ic violence.” Although the General Assembly is free to a dopt its own definition for the pu rposes of Virginia law, the decisions of the General Assembl y to criminalize making false s tatements on “firearm transaction records as may be r equired by federal law,” Code § 18.2-308.2:2(K), and of the Virginia State Police to adopt ATF Form 4473 effectively incorp orated the federal statutory definitions accompanying the form into Virginia law.- 7 - involved, the minimal contact necessary to constitute a battery in Virginia is insufficient to establish that his crime qualifie s as a “misdemeanor crime of d omestic violence.” 5 B. 18 U.S.C. § 921(a)(33) Marshall’s denial that he prev iously had been convicted of a m isdemeanor crime of domestic violence was made on AT F Form 4473, a federal form. A ccordingly, the relevant definition of “misdemeanor crime of domestic violence” comes fr om federal law. Specifically, for the purpose of ATF Form 4473, 18 U.S.C. § 921(a)(33)(A) def ines “the term ‘misdemeanor crime of domestic violence’” as an offense that— (i) is a misdemeanor under Federa l, 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 o r former spouse, parent, or guardia n of the victim, by a person w ith whom the victim shares a child in common, by a person who is cohabiting with or has cohabite d with the victim as a spouse, parent, or guardian, or by a pe rson similarly situated to a spo use, parent, or guardi an of the victim. (Emphasis added). It is undisput ed that no evidence was introd uced to suggest a weapon was involved in the prior offense, a nd Marshall concedes that the e vidence 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 convict ions for violating Code § 18.2-5 7.2 involve “the use or attempted use of physical force” as that phrase is used in 18 U.S.C. § 92 1(a)(33)(A)(ii). From the time of its adoption, the meaning of “the use or atte mpted use of physical force” in 18 U.S.C. § 921(a)(33)(A)(ii) spa wned a significant amount o f litigation. Because the

5 Marshall readily concedes tha t some violations of Code § 18.2- 57.2 qualify as “misdemeanor crimes of domestic violence.” His argument is tha t others do not, and therefore, a mere conviction order is insuffici ent to establish whether a pe rson has committed a qualifying offense.- 8 - domestic assault and battery sta tutes adopted by the several st ates 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 o f 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 A ppeals for the Fourth Circui t addressed whether a conviction for violating Code § 18.2-57.2 qualifi ed as a conviction for a misdemeanor crime of domestic violence. Recognizing that, in Vir ginia, a “battery may be acc omplished with the slightest touch and no physical injury is require d,” id. at 148, the Fourth Cir cuit 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 misdemea nor crime of violence for the purpose of 18 U.S.C. § 921(a)(33 )(A)(ii). Id. at 149-50. Sidi ng with those circuits that reasoned that the slight touching necessa ry to constitute a common law b attery did not require the necessary use of force, the Fourt h Circuit concluded that Code “§ 18.2-57.2 is not, on its face, a ‘misdemeanor crime of domestic violence’ . . . because the Virg inia 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 Circui t 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 C ourt was addressing a scen ario in which the defendant was convicted of a Tennessee misdemeanor for having “‘intention ally or knowingly cause[d] bodily injury to’ the mothe r of his child . . . ,” id. at 161 ( quoting Tenn. Code Ann. § 39-13-111(b) (Supp. 2002)), the maj ority went further regardi ng what qualified as a “misdemeanor crime of violenc e” as that term is defined by 18 U .S.C. § 921(a)(33). Specifically, the Castleman major ity stated: “we therefore hol d that the requirement of ‘physical- 9 - force’ is satisfied . . . by the de gree of force that supports a common-law battery conviction.” Castleman, 572 U.S. at 168. 6 In light of this unequivocal stat ement, the Fourth Circuit’s ea rlier contrary conclusion in White is erroneous 7 and any conviction for violat ing Code § 18.2-57.2 involves a s ufficient 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 convic tion order for assault and battery of a family membe r in violation of Code § 18.2-57.2 , coupled with his statement that the incident involved his former spouse, establish ed that Marsh all had previousl y been convicted of a misdemeanor crime of domes tic violence. Therefore, the ev idence was sufficient to establish that Marshall made a materially false statement on th e ATF form, and thus, was sufficient to support his c onviction for violating Code § 18.2- 308.2:2.

6 In Castleman, the United States Supreme Court was addressing 1 8 U.S.C. § 922(g)(9)’s prohibition on possession of a f irearm by any person “who has b een convicted in any court of a misdemeanor crime of domestic viol ence.” As in the instant cas e, 18 U.S.C. § 922(g)(9) applies the definition of “misdemeanor crime of domestic violence” foun d in 18 U.S.C. § 921(a)(33).

7 In United States v. Car thorne, 878 F.3d 458, 468 (4th Cir. 201 7), the Fourth Circuit expressly recognized that its reas oning in White was rejected b y the United States Supreme Court in Castleman.

8 Although a Tennessee statute was at issue in Castleman, the Co urt’s opinion makes clear that its decision applies to Code § 18.2-57.2. In an opi nion 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 br oader one that treats any offe nsive touching, no matter how slight, as sufficient.” Castleman, 572 U.S. at 175 (Scalia, J. , concurring in judgment). In criticizing the majority’s int erpretation, Justic e Scalia liste d ten states whose assault and battery statutes he believed fell out side 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 interpre tation of 18 U.S.C. 921(a)(33) tha t excluded the relevant statutes of the ten states identified by Justice Scalia. Id. at 167-68.- 10 - CONCLUSION Because Marshall’s conviction for violating Code § 18.2-57.2 c onstitutes 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 ma king 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.