Opinion
Record No. 1077-01-2.
December 3, 2002.
Appeal from the Circuit Court of the City of Richmond, Robert W. Duling, Judge.
Cynthia E. Payne, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank, Humphreys, Clements, Agee, Felton and Kelsey.
MEMORANDUM OPINION
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
On May 7, 2002, a unanimous panel of this Court reversed and dismissed the conviction of appellant, Phillip Branch, for possession of a firearm, in violation of Code § 18.2-308.2. The panel determined that the Commonwealth's evidence did not establish beyond a reasonable doubt that Branch was aware of the nature, presence and character of the gun in the car and, therefore, that he was not in constructive possession of it. We stayed the mandate of that decision and reinstated the appeal. Upon rehearing en banc, we affirm the trial court.
Branch was also convicted of attempting to elude the police in violation of Code § 46.2-817(B). That conviction is not at issue on appeal.
On appeal, we view the facts in the light most favorable to the Commonwealth, the party prevailing below, and grant to it all reasonable inferences fairly deducible therefrom. See Cressell v. Commonwealth, 32 Va. App. 744, 763-64, 531 S.E.2d 1, 10 (2000). On September 27, 2000, at approximately 2:00 a.m., Trooper Jeffrey Stump, of the Virginia State Police, observed Branch travelling 71 miles per hour in a posted 55 miles-per-hour zone. When Stump turned on his emergency lights and siren, Branch began a high-speed flight, through a construction zone, that ended only after he ran into a 12-foot stockade fence. The collision brought the car to a complete stop. Branch exited the car and ran, leaving behind a person in the passenger side of the car.
Stump had the passenger exit the car. He saw a .44 Magnum revolver, partially under the floor mat with the handle in close proximity to the brake pedal. Branch was apprehended by another trooper a short time later.
At trial, Branch testified that he was driving the car, which belonged to his girlfriend, Sherelle Crews, and had been stolen around 10:30 p.m. that evening and that he and a friend looked for the stolen car until they found it at approximately 1:00 a.m.
After locating the car, Branch drove onto Interstate 95. Branch testified he was speeding because he was afraid to drive without his license and he knew he was on probation. He stated he "panicked" and tried to flee when Stump activated his emergency lights and siren. However, he claimed he did not know the gun was in the car and contended that it would have been impossible for him to drive with the gun in the location where Stump found it.
Branch's girlfriend, Crews, testified that her car was stolen earlier that evening and that Branch and a friend had gone to look for it. She denied owning a gun and denied telling Stump that Branch did not have permission to drive the car.
On appeal, Branch contends the evidence presented by the Commonwealth was insufficient to establish his constructive possession of the gun. We disagree and affirm.
When reviewing the sufficiency of the evidence after a conviction, we consider that evidence in the light most favorable to the Commonwealth, and 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, 906-07 (2001) (citing Horton v. Commonwealth, 255 Va. 606, 608, 499 S.E.2d 258, 259 (1998)). When the circuit court sits without a jury, as in this case, it acts as the fact finder and, therefore, the court's judgment is accorded the same weight as a jury verdict. See id. As the fact finder, the court "need not believe the accused's explanation and may infer that he is trying to conceal his guilt." Id. Moreover, "[f]light following the commission of a crime is evidence of guilt. . . ."Clagett v. Commonwealth, 252 Va. 79, 93, 472 S.E.2d 263, 271 (1996),cert. denied, 519 U.S. 1122 (1997). Nevertheless, where the evidence is entirely circumstantial, all necessary circumstances proved must be consistent with guilt and inconsistent with innocence, and must exclude every reasonable hypothesis of innocence. Sutphin v. Commonwealth, 1 Va. App. 241, 244, 337 S.E.2d 897, 898 (1985) (citations omitted). "Whether an alternative hypothesis of innocence is reasonable is a question of fact and, therefore, is binding on appeal unless plainly wrong." Stevens v. Commonwealth, 38 Va. App. 528, 535, 567 S.E.2d 537, 540 (2002) (citations omitted).
To support a conviction for knowingly and intentionally possessing a firearm after having been convicted of a felony, there must be proof that the defendant actually or constructively possessed the firearm at issue.See Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427 S.E.2d 219, 220-21 (1993). To sustain a conviction based upon constructive possession, "the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that [Branch] was aware of both the presence and character of the [gun] and that it was subject to his dominion and control." Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). "'However, the Commonwealth is not required to prove that there is no possibility that someone else may have planted, discarded, abandoned, or placed the [firearm] where [it was] found near an accused.'" Grier v. Commonwealth, 35 Va. App. 560, 571, 546 S.E.2d 743, 748 (2001) (quoting Pemberton v. Commonwealth, 17 Va. App. 651, 655, 440 S.E.2d 420, 422 (1994)).
Mere proximity to the gun is not sufficient to establish dominion and control. See Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986). Likewise, "ownership or occupancy alone is insufficient to prove knowing possession of a gun located on the premises or in a car."Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992).
However, ownership, occupancy and proximity are circumstances that may be considered together to prove constructive possession. See id.; see generally Drew, 230 Va. at 473, 338 S.E.2d at 845; Powers, 227 Va. at 476, 316 S.E.2d at 740.
We find the Commonwealth's evidence excluded Branch's hypothesis that someone else placed the gun in the car and that he neither knew of its presence nor exercised dominion and control over it. See Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832 (1997) ("'The Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant.'" (citation omitted)).
The gun was present in plain view and under Branch's feet, in a car Branch was driving. Branch's contention at trial, that he would not have been able to operate the car with the gun in that location, was rejected by the trial court. The photograph introduced to establish the gun's location relative to the operating pedals does not place the gun below the brake pedal, but rather, to the left of the pedal, near the footrest.Viewing this evidence, together with Branch's flight from police, the trial court's resolution of the remaining credibility issues raised by Branch and his witness, Crews, including Branch's denial that he possessed a gun, we find the evidence proves beyond a reasonable doubt that Branch possessed a firearm, in violation of Code § 18.2-308.2.
Affirmed.
Because I would find the circumstantial evidence in this case was insufficient as a matter of law to prove beyond a reasonable doubt that Branch constructively possessed the gun, I respectfully dissent from the majority opinion.
As the majority aptly states, "[w]hen a defendant challenges the sufficiency of the evidence on appeal, the reviewing court must give the judgment of the trial court sitting without a jury the same weight as a jury verdict." Tarpley v. Commonwealth, 261 Va. 251, 256, 542 S.E.2d 761, 763 (2001) (citing Hickson v. Commonwealth, 258 Va. 383, 387, 520 S.E.2d 643, 645 (1999); Commonwealth v. Taylor, 256 Va. 514, 518, 506 S.E.2d 312, 314 (1998)). Indeed, an appellate court has the duty to examine the evidence that tends to support the conviction and to uphold the conviction unless it is plainly wrong or without evidence to support it. Code § 8.01-680. However, an "appellate court is equally obligated to set aside the trial court's judgment when it is contrary to the law and the evidence and, therefore, the judgment is plainly wrong."Tarpley, 261 Va. at 256, 542 S.E.2d at 763 (emphasis added).
"When 'a conviction is based on circumstantial evidence, all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.'" Grier v. Commonwealth, 35 Va. App. 560, 571, 546 S.E.2d 743, 748 (2001) (quoting Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983)). Thus, the evidence itself, when taken in the light most favorable to the Commonwealth, must exclude every reasonable hypothesis of innocence.
As the majority recognizes, it is fundamental that such hypotheses must be reasonable and flow from the evidence itself. "The Commonwealth need . . . not [exclude] those [hypotheses] that spring from the imagination of the defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
The evidence in this case, taken in the light most favorable to the Commonwealth and as accepted by the trial court, proved that Branch was driving a car that did not belong to him when he was observed speeding by the police. The evidence further proved that a police pursuit ensued, during which Branch drove at speeds in excess of 80 miles per hour, drove through a road construction zone where the car collided with construction barrels and drove across railroad tracks at a high rate of speed. As Trooper Stump testified, when Branch hit the railroad tracks, the car he was driving left the ground and collided with a 12-foot stockade fence, traveling "five, six feet through the fence before it stopped." Stump testified that when the car came to a stop, he observed Branch "immediately" get out of the car and run. Stump stated that when he approached the driver's side of the car, he saw the gun at issue "underneath the driver's foot pedal and partially under the [floor] mat." The photograph admitted into evidence during trial revealed that the handle of the gun was indeed, in close proximity to the brake pedal, that the floor mat was askew, and that other debris was scattered on the floor of the passenger compartment. The evidence also established that Branch was on probation at the time of the incident and that he was driving without a valid operator's license. Finally, depending on the version of the events accepted by the trial court, the evidence proved that the car had either been stolen that evening and Crews had given Branch permission to search for it, or that Branch was driving Crews' car without her permission.
Applying the above-stated standard of review, I conclude that this evidence, while certainly suspicious to the extent of showing a probability of guilt, is insufficient as a matter of law to establish Branch's constructive possession of the gun. First, the Commonwealth produced no direct evidence linking the gun to Branch. In addition, and contrary to the view espoused by the majority, there was simply no evidence that the gun was in plain view while Branch was in control of the car. Indeed, the evidence established that the contents of the driver's side floor area of the car were askew and in disarray when Trooper Stump approached the car, immediately after the collision. Thus,any conclusion that the gun was in plain view, or even in close proximity to Branch, prior to the collision and while Branch was in control of the car, could not be reached without an exercise in conjecture and speculation.
Next, although it is reasonable to infer that Branch ran from police because he had knowledge of the gun in the car, the inference, standing alone, is insufficient to establish Branch's guilt beyond a reasonable doubt. Neither this inference, nor the evidence, excluded the remaining reasonable hypotheses of Branch's innocence. Indeed, Branch claimed he ran because he knew he was on probation and that he was driving without a license when Trooper Stump observed him speeding. Assuming the trial court rejected Branch's testimony to this effect, the trial court's factual determinations, as suggested by the majority, establish that Branch was committing a separate offense when Trooper Stump observed him speeding. Namely, unauthorized use of a vehicle, which can be either a misdemeanor or felony, depending on the value of the car at issue. Therefore, neither the trial court, nor this Court, could assume, based on the evidence produced by the Commonwealth that Branch ran from police because he had knowledge of the gun. To do so would again, amount to nothing more than rank speculation and conjecture.
Finally, and contrary to the holding of the majority, the evidence does not exclude the reasonable hypothesis, flowing from the undisputed evidence, that someone other than Branch may have placed the gun in the car. Assuming the trial court rejected the testimony of both Branch and Crews, it remains patently clear that at least two other people had access to the car that evening Crews and Branch's passenger. No evidence, circumstantial or otherwise, excluded the very reasonable possibility that one of those individuals placed the gun in the car, unbeknownst to Branch.
As the majority recognizes, the trial court was most certainly entitled to disbelieve Branch's assertions that he did not know the gun was in the car. Nevertheless, the trial court's rejection of this testimony, although another circumstance of guilt, does not provide a factual basis for establishing beyond a reasonable doubt that Branch had knowledge of the gun, nor that it was subject to his dominion and control. See Tarpley, 261 Va. at 256-57, 542 S.E.2d at 764.
In summary, the majority utilizes the standard of review to supply a sufficient factual basis to support Branch's conviction, where none exists in the record. The evidence here, considered as a whole, in my view is highly suspicious of Branch's guilt. However, it simply does not prove, beyond a reasonable doubt, that Branch constructively possessed the gun found on the floor of the car. See Littlejohn v. Commonwealth, 24 Va. App. 401, 415, 482 S.E.2d 853, 860 (1997) ("Suspicion, no matter how strong, is not enough. Convictions cannot rest upon speculation and conjecture." (citing Bishop v. Commonwealth, 227 Va. 164, 170, 313 S.E.2d 390, 393 (1984); Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533 (1951))). For these reasons, I would find the trial court's judgment was based upon evidence that was insufficient as a matter of law and, therefore, plainly wrong, and I would reverse the conviction.