From Casetext: Smarter Legal Research

Britt v. Commonwealth

Court of Appeals of Virginia. Norfolk
Nov 23, 1993
Record No. 1484-92-1 (Va. Ct. App. Nov. 23, 1993)

Opinion

Record No. 1484-92-1

November 23, 1993

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS ROBERT W. CURRAN, JUDGE.

David B. Olson, for appellant.

Eugene Murphy, Assistant Attorney General (Stephen D. Rosenthal, Attorney General, on brief), for appellee.

Present: Chief Judge Moon, Judges Baker and Bray.

Argued at Norfolk, Virginia.


MEMORANDUM OPINION

Pursuant to Code § 17-116.010 this opinion is not designated for publication.


Andre Lamonde Britt (defendant) was convicted in a bench trial of possession of cocaine, possession of a firearm while in possession of cocaine, and possession of a weapon by a convicted felon. Defendant complains on appeal that the evidence is insufficient to support the firearm convictions. We disagree and affirm the decision of the trial court.

The parties are fully conversant with the record, and this memorandum opinion recites only those facts necessary to a disposition of the issue on appeal.

Under familiar principles of appellate review, we examine the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The judgment of a trial court, sitting without a jury, is entitled to the same weight as a jury verdict and will be disturbed only if plainly wrong or without evidence to support it. Id. The credibility of a witness, the weight accorded the testimony, and the inferences to be drawn from proven facts are matters solely within the province of the fact finder. Long v. Commonwealth, 8 Va. App. 194, 199, 379 S.E.2d 473, 476 (1989).

On the evening of January 28, 1992, Officer Larry Bland of the Newport News Police Department received a "BOL, be on the lookout for a subject," radio dispatch "in reference to a large, black male in the area of Taylor Avenue, loading . . . what appeared to be a sawed-off shotgun and then getting into a dark-colored, older model Chevy Malibu or Monte Carlo." Approximately "half a mile" from Taylor Avenue, Bland observed an automobile which matched the "BOL" description. An unidentified female passenger was seated with the driver, and defendant was "kind of . . . in the middle" of the rear seat, alone.

Before Bland could signal the vehicle to stop, the driver "pulled to the curb," exited the car and attempted to walk from the area. As defendant also began "to exit the vehicle on the driver's side," Sergeant George restrained and arrested him. While Officer Bruce Bunton, another policeman at the scene, and George handcuffed defendant, "a small, clear vial," containing cocaine residue, and "a tinted pill-type container" fell from defendant's hands. Bunton recovered the items and was escorting defendant to a "patrol unit" when defendant asked the officer for "his coat." Bunton, however, ignored this request and "placed him in [the] car."

During a subsequent search of the suspect vehicle, Officer Albert McKeoun "reached in the back seat and picked up a dark-colored jacket and underneath" discovered a 12-gauge shotgun, twenty-seven inches in overall length. The "stock" of the gun had been removed and replaced with a "pistol grip." The weapon was "laying [sic] on the back seat, right behind the passenger side," "completely covered by the jacket." It was loaded with "five rounds," and a "couple more rounds was [sic] on the floor."

At the conclusion of the Commonwealth's evidence and, again, at the conclusion of all the evidence, defendant moved the court to strike, arguing that the evidence was insufficient to prove his possession of the firearm. The court, in overruling the motions, noted:

There's a two-door vehicle so it's a smaller area than a motel room. There are three people in the car and the defendant is in the back seat. The weapon is found in the back seat. The weapon is covered by a jacket, the only jacket that anybody asked for. None of the other people asked for a jacket. Only the defendant asked for a jacket.

If you put all the circumstances together here, I think the Commonwealth has established the case, . . . so I'm going to overrule the motion.

On appeal, defendant again challenges the sufficiency of the evidence to support the two convictions related to the firearm.

It is well established that "[p]ossession may be actualor constructive." Peterson v. Commonwealth, 5 Va. App. 389, 402, 363 S.E.2d 440, 448 (1987) (emphasis added) (citingClodfelter v. Commonwealth, 218 Va. 619, 622, 238 S.E.2d 820, 822 (1977)); see also Blake v. Commonwealth, ___ Va. App. ___, ___, 427 S.E.2d 219, 220-21 (1993) (where a convicted felon's constructive possession of a firearm was sufficient to support his conviction for possession of a firearm by a convicted felon). To determine whether defendant had constructive possession of the shotgun in this instance, we are guided by the "principles concerning constructive possession of controlled substances." Blake, ___ Va. App. at ___, 427 S.E.2d at 220.

To support 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 the defendant was aware of both the presence and character of the substance and that it was subject to his dominion and control."

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). "Proof of constructive possession necessarily rests on circumstantial evidence; thus, 'all necessary circumstances proved must be consistent with guilt and inconsistent with innocence. . . .'" Burchette v. Commonwealth, 15 Va. App. 432, 434, 425 S.E.2d 81, 83 (1992) (citations omitted). However, the Commonwealth need only exclude reasonable hypotheses of innocence that flow from the evidence, not those that spring from the imagination of the defendant.Cook v. Commonwealth, 226 Va. 427, 433, 309 S.E.2d 325, 329 (1983); Fordham v. Commonwealth, 13 Va. App. 235, 239, 409 S.E.2d 829, 831 (1991).

We recognize that defendant's occupancy of the vehicle in this instance, standing alone, is insufficient to prove his conscious possession of the shotgun. Code 18.2-250. However, "close proximity" is a "relevant fact" that "may tend to show" that defendant was aware of its "presence, nature and character." Burchette, 15 Va. App. at 435, 425 S.E.2d at 83;see also Josephs v. Commonwealth, 10 Va. App. 87, 100, 390 S.E.2d 491, 498 (1990); Behrens v. Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986). When this circumstance is considered with other incriminating evidence apparent in the record and noted by the trial judge, there is ample support for the finding that defendant was aware of the presence, nature and character of the weapon and that it was subject to his dominion and control.

Accordingly, we affirm the convictions.

Affirmed.


Summaries of

Britt v. Commonwealth

Court of Appeals of Virginia. Norfolk
Nov 23, 1993
Record No. 1484-92-1 (Va. Ct. App. Nov. 23, 1993)
Case details for

Britt v. Commonwealth

Case Details

Full title:ANDRE L. BRITT, s/k/a ANDRE LAMONDE BRITT v. COMMONWEALTH OF VIRGINIA

Court:Court of Appeals of Virginia. Norfolk

Date published: Nov 23, 1993

Citations

Record No. 1484-92-1 (Va. Ct. App. Nov. 23, 1993)