Bernard E. Samuels, etc v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: August 1, 1995
• Docket: 1364942
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Annunziata and Senior Judge Hodges Argued at Richmond, Virginia

BERNARD E. SAMUELS, S/K/A BERNARD EVERETT SAMUELS

v. Record No. 1364-94-2 MEMORANDUM OPINION * BY JUDGE WILLIAM H. HODGES COMMONWEALTH OF VIRGINIA AUGUST 1, 1995

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Robert W. Duling, Judge Cary B. Bowen (Bowen and Bowen, on brief), for appellant.

Marla Lynn Graff, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

In a bench trial, appellant was convicted of simultaneously

possessing cocaine and a firearm in violation of Code

§ 18.2-308.4. On appeal, he argues that the evidence was

insufficient to support his conviction. We disagree and affirm.

"On appeal, we review 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).

On January 15, 1994, the police executed a search warrant at

appellant's residence. Appellant was in the living room at the

time. In appellant's pocket, the police found a folded one

dollar bill and a tied plastic bag corner, both of which

contained cocaine. A smoking device and a bag containing cocaine

* Pursuant to Code § 17-116.010, this opinion is not designated for publication. were on the floor near appellant. Also near appellant on the

floor was a nine millimeter firearm.

After the police arrested appellant and informed him he was

being charged with possessing cocaine and the firearm, appellant

said, "I have a gun; but that's not -- that one there is not

mine. . . . [T]he shotgun -- the long shotgun in the closet is

mine." The police recovered a shotgun from the closet in one of

the bedrooms down the hallway from the living room. At trial, the Commonwealth proceeded under the theory that

appellant possessed the shotgun, not the nine millimeter firearm

found near him. Appellant concedes that he owned the shotgun and

that he possessed cocaine. 1 He argues, however, that the

Commonwealth did not show that he knowingly and simultaneously

possessed the shotgun and the cocaine as contemplated by Code

§ 18.2-308.4.

Pursuant to Code § 18.2-308.4, any person who unlawfully

possesses cocaine and "simultaneously with knowledge and intent

possesses any firearm" is guilty of a felony. We found in Jefferson v. Commonwealth, 14 Va. App. 77, 80, 414 S.E.2d 860,

862 (1992), that "actual possession of both the firearm and the

controlled substance is not required by the wording of Code

§ 18.2-308.4. Constructive possession of either or both is

sufficient for conviction." Moreover, to sustain a conviction

1 Appellant, in fact, entered a guilty plea upon a charge of cocaine possession arising from the same facts. His subsequent conviction of the offense has not been challenged on appeal.

-2- under Code § 18.2-308.4, "[t]he Commonwealth need not prove that

[the defendant] had ready access to either the gun or the cocaine

to establish 'simultaneous possession.'" Jefferson, 14 Va. App.

at 81, 414 S.E.2d at 862.

As appellant concedes, the evidence proved that he possessed

cocaine when the police searched his home. Thus, to sustain

appellant's conviction, the Commonwealth need only have proven

that appellant simultaneously had constructive possession of the

shotgun in the closet. "Constructive possession may be established by '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 the character of the substance and that it

was subject to his dominion and control.'" Logan v.

Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368-69 (1994)

(en banc) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316

S.E.2d 739, 740 (1984)). In determining whether constructive

possession of an item has been established, the ownership of the

premises where the item was found is a factor "that may be

considered together with other evidence tending to prove that the

owner . . . exercised dominion and control over" the item. Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,

83 (1992).

Appellant was present when the police conducted the search

of his home. Appellant denied ownership of the firearm found

near him, but told the police he owned the shotgun in the closet.

-3- This statement revealed not only that appellant knew generally

of the presence of firearms in his house, but also that he knew

where his own firearm was located at that particular moment. The

police found the shotgun in a bedroom closet, just down the

hallway from appellant and as he described. From this evidence,

the trial judge could have concluded beyond a reasonable doubt

that appellant was aware of the presence and character of the

firearm, that it was subject to his dominion and control, and

that he constructively possessed it at a time when he also

possessed cocaine. See Davis v. Commonwealth, 12 Va. App. 728,

733, 406 S.E.2d 922, 924-25 (1991) (evidence sufficient to

support finding of constructive possession of marijuana where

defendant told police officers searching his house that marijuana

was in the basement, and officers found marijuana there).

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

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