Deena Anne Esteban v. Commonwealth

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.
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
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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.
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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
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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:
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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
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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.
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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.
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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
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§ 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
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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.
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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)).
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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
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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
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§ 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
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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
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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,
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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.
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