Opinion
Record No. 0274-91-1
September 29, 1992
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH ALAN E. ROSENBLATT, JUDGE.
Michael A. Robusto (Slipow Robusto, P.C., on brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General (Mary Sue Terry, Attorney General, on brief), for appellee.
Present: Chief Judge Koontz, Judges Benton and Bray.
Argued at Norfolk, Virginia.
Pursuant to Code § 17-116.010 this opinion is not designated publication.
In a bench trial, Gary Martin Henry (Henry), appellant, was convicted of knowingly and intentionally possessing or transporting a handgun after previously having been convicted of a felony in violation of Code § 18.2-308.2. On appeal, Henry contends that the trial court erred in considering, at the sentencing hearing, his failure to testify at trial and evidence that had been rendered inadmissible at trial. He also alleges that the evidence was insufficient to support his conviction. For the reasons that follow, we affirm the conviction.
The parties are familiar with the facts of the case. Accordingly, we restate only those facts necessary to explain our holding.
We first address the propriety of certain statements the trial court made at the sentencing hearing, which took place two months after the trial. Henry alleges that it was improper for the trial court to consider, at the sentencing hearing, his failure to testify at trial. He also contends that it was improper for the trial court to consider that he told officers at the scene that he had just "shot up with heroin" because that evidence had been ruled inadmissible at trial.
At sentencing, Henry told the court, "I've tried to keep it as straight as I can." In response, the court stated:
You know, Mr. Henry, I hear what you're saying; and I look at you; and you look good; and you sound good — . . . — and yet, I look at this record. You've got a lousy work record if you could even call it a record. Spotty employment at best. And one of the other things that sticks out to me in this presentence report you indicated that you don't use drugs. Yet you tell the police officer you just shot up with heroin.
Frankly, Mr. Henry, I don't believe you. That's probably why [your attorney] chose to not have you testify. I can't hold that against you, but it's certainly a comment on a wise defense move.
Upon review of the record, we find that defense counsel did not object to these comments. Moreover, Henry never filed a motion to set aside the verdict. Therefore, Henry may not raise these issues for the first time on appeal. Rule 5A:18.
Although we hold Rule 5A:18 precludes our review of the judge's comment regarding Henry's failure to testify at trial, we note that the judge did not consider Henry's failure to testify at trial. We have long recognized that a judge is presumed to have applied the correct legal standard in the absence of evidence to the contrary. Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977). Here, the judge's statement, "I can't hold that against you," shows that he applied the correct legal standard. Thus, although the comment was ill-advised, we have no reason to believe that the judge actually considered Henry's failure to testify. Therefore, regardless of whether Henry complied with the contemporaneous objection rule, his contention that the trial court improperly considered the fact that he had not taken the stand at trial is without merit.
We next decide whether sufficient evidence supports Henry's conviction for knowingly and intentionally possessing or transporting a handgun. Henry concedes that he knew the handgun was in the car. However, he contends that the evidence failed to show that he exercised any dominion and control over the weapon so as to demonstrate that he intended to possess it. We disagree.
"'On appeal, we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom.'" Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc) (quotingMartin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). Moreover, "'[t]he judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.'" Id.
The record shows that Henry, after being taken to the police station and advised of his Miranda rights, waived his rights and told the officers he knew that the gun was in the car, and that he "just brought it out for his protection and for his daughter's protection." The statement that he brought the gun out for protection provides evidence from which the trier of fact could conclude that Henry's possession of the weapon was intentional. Specifically, Henry's statement demonstrates that he intended to exercise dominion and control over the weapon for his and his daughter's protection. Therefore, we hold that the evidence was sufficient to show that Henry knowingly and intentionally possessed or transported a handgun after having been previously convicted of a felony.
In sum, we hold that our review of the trial court's statements at the sentencing phase of the trial is barred by Henry's failure to raise an objection below. Rule 5A:18. Moreover, we hold that sufficient evidence supports Henry's conviction.
Affirmed.