COURT OF APPEALS OF VIRGINIA

Present:	Judges Annunziata, Humphreys and McClanahan
Argued at Richmond, Virginia


DWAYNE EARL BRANCH
			OPINION BY
v.	Record No. 2784-02-2	JUDGE ROBERT J. HUMPHREYS
	MARCH 23, 2004
COMMONWEALTH OF VIRGINIA


	FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Cleo E. Powell, Judge

		Randy B. Rowlett (Gordon, Dodson & Gordon, on brief), for 
appellant.

		Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore, 
Attorney General, on brief), for appellee.


	Dwayne Earl Branch appeals his conviction, after a bench trial, for possession of a 
firearm after having been convicted of a felony, in violation of Code  18.2-308.2.  Branch 
argues the trial court erred for two reasons in finding the evidence sufficient, as a matter of law, 
to support the conviction.  First, because the Commonwealth failed to prove that he intended to 
violate the statute.  Second, because Branch had the right to "rely upon the assurances of a gun 
dealer licensed by the [Commonwealth] that it was permissible for [him] to purchase a firearm."  
For the reasons that follow, we affirm Branch's conviction.
I.  Background
"On appeal, we review the evidence in the light most favorable to the Commonwealth, 
granting it all reasonable inferences deducible from that evidence."  Ziats v. Commonwealth, 42 
Va. App. 133, 136, 590 S.E.2d 117, 118 (2003).  So viewed, the evidence presented below 
established that, on June 1, 2001, Branch went to Southern Gun World, a licensed gun dealer 
located in Chesterfield County, Virginia.  Branch approached the sales clerk and requested to 
purchase a .380 caliber semi-automatic pistol.  Branch presented the clerk with his Virginia 
driver's license, a Social Security card, and a voter registration card for purposes of 
identification.  Branch then completed the requisite Virginia State Police Form SP-65 (the 
Virginia Firearms Transaction Record).  In response to a question listed on the form asking, 
"Have you ever been convicted in any court for a crime for which the Judge could have 
imprisoned you for more than one year, even if the Judge actually gave you a shorter sentence?", 
Branch wrote, "No."  However, Branch told the sales clerk that he was not "sure what [his] status 
was in terms of a conviction."
When keying Branch's information into the computer system to obtain Branch's criminal 
history record, the sales clerk inadvertently misspelled Branch's first name.  Accordingly, the 
system failed to disclose that Branch had been convicted of a felony in 1994.  The sales clerk 
thus completed the sale and transferred the weapon to Branch.
Virginia State Police subsequently investigated the transaction and learned that Branch 
had been convicted of a felony.  Police later arrested Branch for possession of a firearm after 
having been convicted of a felony.
At trial, the Commonwealth introduced a copy of a Henrico County conviction order, 
which established that Branch had been convicted, in February of 1994, of grand larceny (in 
violation of Code  18.2-95).  The conviction order stated that Branch was present during the 
proceeding, that he was represented by counsel, and that he pled guilty to the indictment.  The 
order further stated that Branch was sentenced to twelve months in jail and that the full 
twelve-month sentence was suspended, upon certain conditions, "for a period of five (5) years."
Branch subsequently testified on his own behalf, contending that the Henrico County 
judge had told him that "[i]f [he was] not convicted of any other charges in five years, that 
the . . . charge would be . . . wiped from [his] record."  Thus, Branch testified that he was 
"confused" as to whether he was a convicted felon.  Branch claimed that he bought the weapon 
for protection, because there had been several break-ins in his neighborhood.
In closing argument, Branch's counsel argued that the evidence failed to prove Branch 
"inten[ded] to mislead," stating "he had no intent to knowingly be convicted of a felony and 
attempt to purchase a firearm."  The trial court found that the evidence "met the elements of the 
code" and found Branch guilty of the offense.  Branch was ultimately sentenced to serve five 
years with the Department of Corrections, with three years suspended.
II.  Analysis
On appeal, Branch first argues that the trial court erred in finding the evidence sufficient 
to support the conviction because the evidence failed to establish that he intended to violate the 
statute.  We disagree.
We first note that "[w]hen reviewing the sufficiency of the evidence after a conviction, 
. . . we affirm the conviction unless it is plainly wrong or without evidence to support it."  
Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 906 (2001).
Code  18.2-308.2(A) provides as follows, in relevant part:
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 this 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 . . . as 
defined by  18.2-308.1 . . . .  Any person who violates this section 
shall be guilty of a Class 6 felony. . . . 
Thus, the pertinent conduct proscribed by Code  18.2-308.2 is merely that of "being a 
felon" and "knowingly and intentionally" being in possession of a firearm.  Id.; see also 
Armstrong v. Commonwealth, 263 Va. 573, 582, 562 S.E.2d 139, 144 (2002).  Neither Code 
 18.2-308.2, nor its related statutes, contain a scienter or mens rea element for a conviction 
under that statute.  Indeed, to prove a violation under the plain language of the statute, the 
Commonwealth must establish nothing more than that the defendant "has been convicted of a 
felony" and that he or she "knowingly and intentionally possess[ed] . . . any firearm."  Code 
 18.2-308.2.  But see Reed v. Commonwealth, 15 Va. App. 467, 471, 424 S.E.2d 718, 720-21 
(1992) (holding, based upon language in related statutes (now repealed), that actual knowledge 
of declaration of habitual offender status and direction not to drive was required for conviction 
for driving after having been so declared).  This interpretation comports squarely with the 
legislature's determination, in enacting the statute, "that certain individuals - felons - are unfit 
to possess firearms, even for lawful purposes."  Armstrong, 263 Va. at 582, 562 S.E.2d at 144; 
see also Alger v. Commonwealth, 267 Va. 255, 590 S.E.2d 563 (2004).  Cf. Esteban v. 
Commonwealth, 266 Va. 605, 609-10, 587 S.E.2d 523, 526 (2003) (holding that the legislature 
intended Code  18.2-308.1(B) to create strict criminal liability, subject to certain specific 
exceptions, for any person possessing a firearm on school property, thus no instruction on the 
element of mens rea required).
Accordingly, whether Branch was "confused" about his status as a convicted felon, 
whether he intended to "mislead" the gun dealer in completing the Virginia State Police form 
inaccurately, or whether he intended to "knowingly violate the statute" is of no moment.  The 
undisputed evidence before the trial court proved that Branch had been convicted of a felony in 
1994 and that he thereafter, knowingly and intentionally purchased, and consequently possessed, 
the firearm at issue.  We thus find no error in the trial court's determination of guilt, and we 
affirm on this issue.
Branch alternatively contends that the trial court erred in finding the evidence sufficient 
to support the conviction because "reliance upon the assurances of a licensed gun dealer by the 
State [sic] of Virginia [is] a defense to an alleged violation of Section 18.2-308.2."  Branch relies 
upon our decision in Miller v. Commonwealth, 25 Va. App. 727, 492 S.E.2d 482 (1997).
In Miller, we reversed and dismissed Miller's conviction under Code  18.2-308.2, 
because the Due Process Clause barred his conviction for possessing a muzzle-loading rifle after 
having been convicted of a felony, where his probation officer advised him that he was legally 
permitted to possess the firearm.  Id. at 742-45, 492 S.E.2d at 490-91.  We stated the "essence" 
of the due process argument as follows:  "'[T]hat the criminal statute under which the defendant 
is being prosecuted cannot constitutionally be applied to the defendant without violating due 
process of law, where government officials have misled the defendant into believing that his 
conduct was not prohibited.'"  Id. at 736, 492 S.E.2d at 487 (quoting Jeffrey F. Ghent, 
Annotation, Criminal Law: "Official Statement" Mistake of Law Defense, 89 A.L.R.4th 1026, 
1031 (1991)).
Accordingly, we held that this due process defense, to what is essentially a strict liability 
crime, may be available under certain narrow circumstances.  In particular, the defense is 
available if the defendant proves: 1) that he was assured that the conduct giving rise to the 
conviction was lawful; 2) that the assurance was given by a "government official," i.e., "a public 
officer or body charged by law with responsibility for defining permissible conduct with respect 
to the offense at issue"; and 3) that, based on the totality of the circumstances, reliance upon the 
advice was reasonable and in good faith.  Id. at 738-39, 745, 492 S.E.2d at 488-89, 491.  We 
further noted that it is the defendant's burden to establish this "affirmative defense."  Id. at 737, 
492 S.E.2d at 488.
In the case at bar, although the record demonstrates that Branch advised the trial court 
that he provided the sales clerk with accurate evidence of his identity, that he informed the sales 
clerk that he was unsure of his status as a convicted felon, and that he only bought the gun after 
the sales clerk ran the criminal history check, the record also demonstrates that Branch presented 
this evidence in support of his sole argument that he did not intend to knowingly violate the 
statute - an element which he specifically contended was required to be proven under the terms 
of the statute.  
Branch did not raise the Miller due process argument in support of his defense, nor did he 
raise any other constitutional argument.  Indeed, Branch never argued that he was 
"affirmatively" assured that his possession of the gun was lawful, nor did he argue or present 
evidence that any such assurance came from a "government official" "charged by law with 
responsibility for defining permissible conduct with respect to the offense at issue."  Id. at 738, 
739, 492 S.E.2d at 488, 489.  More significantly, Branch failed to provide the trial court with the 
opportunity to consider this particular legal argument, and to rule on the due process claim he 
now makes.
Accordingly, we decline to address Branch's contention in this regard because we find 
that Branch failed to raise it before the trial court and, thus, failed to properly preserve the 
argument for purposes of appeal.  See Rule 5A:18; see also Swann v. Commonwealth, 247 Va. 
222, 441 S.E.2d 195 (1994) (noting that appellate courts will not consider constitutional 
arguments that were not raised before the trial court); Scott v. Commonwealth, 31 Va. App. 461, 
464-65, 524 S.E.2d 162, 164 (2000) (noting that "[t]o preserve an issue for appeal, [an] objection 
must be made with specificity," otherwise, the trial court is denied the opportunity to address and 
correct the error of which the defendant complains); Ohree v. Commonwealth, 26 Va. App. 299, 
307, 494 S.E.2d 484, 488 (1998) ("The main purpose of requiring timely specific objections is to 
afford the trial court an opportunity to rule intelligently on the issues presented, thus avoiding 


unnecessary appeals and reversals.").    Finding no reason to address Branch's argument pursuant 
to the "good cause" or "ends of justice" exceptions to Rule 5A:18, we affirm the trial court's 
judgment as it pertains to this issue.
For these reasons, we affirm Branch's conviction.
Affirmed.
  Pursuant to the principles underlying Rule 5A:18, we decline to consider Branch's 
contention, despite the fact that the Commonwealth failed to identify this procedural defect in its 
brief on appeal.  See Rule 5A:18.
 
 

 
 
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