COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee Argued at Chesapeake, Virginia
DEWAYNE BRAVELETT ELLIS MEMORANDUM OPINION * BY v. Record No. 2977-01-1 JUDGE G. STEVEN AGEE JULY 30, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Randolph T. West, Judge
Theophlise Twitty (Jones and Twitty, on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Dewayne Bravelett Ellis (Ellis) was convicted in a bench
trial before the Circuit Court of Newport News of possession of
a firearm by a convicted felon, in violation of Code
§ 18.2-308.2. He was sentenced to serve a term of two years
incarceration. On appeal, he contends the trial court erred in
denying his motion to strike the Commonwealth's evidence,
contending the evidence was insufficient to prove he possessed a
firearm. For the following reasons, we disagree and affirm his
conviction.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 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.
Officers of the Newport News Police Department executed a
search warrant at a Newport News apartment. As Detective
Pollack entered a bedroom in the apartment he saw a female near
a bed. Ellis was about seven feet from the woman and stood near
a closet. The detective then witnessed Ellis make a "slight
throwing motion or dropping motion with his right hand" and
"heard something hit the ground." He "immediately" recovered a
handgun "less than a foot from where [Ellis] was standing" and
in the area where Ellis' throw was directed. Detective Pollack
acknowledged that he had not seen the object that Ellis dropped
onto the floor, however, he saw no other items near the firearm.
The detective also saw the woman drop a brown bag.
However, she did not make any throwing motions in the direction
where the firearm was recovered.
II. ANALYSIS
On appeal, Ellis, a previously convicted felon, contends
the evidence was insufficient to establish he possessed a
firearm in violation of Code § 18.2-308.2. He contends the
Commonwealth failed to prove beyond a reasonable doubt that he
was aware of the presence and character of the firearm and was
- 2 - intentionally and consciously in possession of it. For the
following reasons we disagree and affirm his conviction.
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. See
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). On review, this Court does not substitute its own
judgment for that of the trier of fact. See Cable v.
Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).
Witness credibility, the weight accorded the testimony and the
inferences to be drawn from proven facts are matters to be
determined by the fact finder. See Long v. Commonwealth, 8 Va.
App. 194, 199, 379 S.E.2d 473, 476 (1989). The trial court's
judgment will not be set aside unless it appears that the
judgment is plainly wrong or without supporting evidence. See
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
To support a conviction for possession of a firearm after
having been convicted of a felony, the Commonwealth must prove
beyond a reasonable doubt that a defendant knowingly and
intentionally possessed the firearm. See Blake v. Commonwealth,
15 Va. App. 706, 427 S.E.2d 219 (1993). "[P]ossession may be
proved by 'evidence of acts, declarations or conduct of the
accused from which the inference may be fairly drawn that he
- 3 - knew of the existence of [the contraband] at the place where
they were found.'" Andrews v. Commonwealth, 216 Va. 179, 182,
217 S.E.2d 812, 814 (1975) (quoting Ritter v. Commonwealth, 210
Va. 732, 741, 173 S.E.2d 799, 806 (1970)). "[P]ossession 'need
not always be exclusive. The defendant may share it with one or
more.'" Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d
491, 497 (1990) (en banc) (quoting Gillis v. Commonwealth, 215
Va. 298, 301-02, 208 S.E.2d 768, 771 (1974)). Proximity to the
contraband is a factor that may be considered in determining
whether a defendant possessed the contraband. See Brown v.
Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en
banc). Occupancy of the premises on which the contraband was
found is likewise a circumstance probative of possession. See
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986).
Such circumstantial evidence may be sufficient to prove
possession. "Circumstantial evidence is as competent and is
entitled to as much weight as direct evidence, provided it is
sufficiently convincing to exclude every reasonable hypothesis
except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53,
307 S.E.2d 864, 876 (1983).
There is sufficient evidence in the case at bar to support
the trial court's finding that Ellis possessed the firearm.
Detective Pollack witnessed Ellis make a movement that appeared
as if he was dropping something, and then heard the sound of
- 4 - something hitting the floor. He then saw the firearm, within a
foot of where Ellis stood, with no other objects on the floor.
Accordingly, the trial court could conclude beyond a reasonable
doubt that Ellis possessed the firearm.
Our holding is supported by our prior decisions. In
Collins v. Commonwealth, 13 Va. App. 177, 409 S.E.2d 175 (1991),
we affirmed the defendant's conviction for possession of cocaine
with intent to distribute where a police officer came upon the
defendant in a vehicle at night in the parking lot of an
apartment complex. From a distance of about 30 feet, the
officer saw Collins make a throwing motion under his vehicle
with his right arm, and officers then retrieved baggies of
cocaine from under the car. In affirming the conviction, we
rejected arguments substantially identical to those now raised
by Ellis.
Collins asserted that no officer had seen any contraband in
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COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Humphreys and Agee Argued at Chesapeake, Virginia
DEWAYNE BRAVELETT ELLIS MEMORANDUM OPINION * BY v. Record No. 2977-01-1 JUDGE G. STEVEN AGEE JULY 30, 2002 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS Randolph T. West, Judge
Theophlise Twitty (Jones and Twitty, on brief), for appellant.
Robert H. Anderson, III, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
Dewayne Bravelett Ellis (Ellis) was convicted in a bench
trial before the Circuit Court of Newport News of possession of
a firearm by a convicted felon, in violation of Code
§ 18.2-308.2. He was sentenced to serve a term of two years
incarceration. On appeal, he contends the trial court erred in
denying his motion to strike the Commonwealth's evidence,
contending the evidence was insufficient to prove he possessed a
firearm. For the following reasons, we disagree and affirm his
conviction.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 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.
Officers of the Newport News Police Department executed a
search warrant at a Newport News apartment. As Detective
Pollack entered a bedroom in the apartment he saw a female near
a bed. Ellis was about seven feet from the woman and stood near
a closet. The detective then witnessed Ellis make a "slight
throwing motion or dropping motion with his right hand" and
"heard something hit the ground." He "immediately" recovered a
handgun "less than a foot from where [Ellis] was standing" and
in the area where Ellis' throw was directed. Detective Pollack
acknowledged that he had not seen the object that Ellis dropped
onto the floor, however, he saw no other items near the firearm.
The detective also saw the woman drop a brown bag.
However, she did not make any throwing motions in the direction
where the firearm was recovered.
II. ANALYSIS
On appeal, Ellis, a previously convicted felon, contends
the evidence was insufficient to establish he possessed a
firearm in violation of Code § 18.2-308.2. He contends the
Commonwealth failed to prove beyond a reasonable doubt that he
was aware of the presence and character of the firearm and was
- 2 - intentionally and consciously in possession of it. For the
following reasons we disagree and affirm his conviction.
When considering the sufficiency of the evidence on appeal
in a criminal case, this Court views the evidence in the light
most favorable to the Commonwealth, granting to it all
reasonable inferences fairly deducible therefrom. See
Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534,
537 (1975). On review, this Court does not substitute its own
judgment for that of the trier of fact. See Cable v.
Commonwealth, 243 Va. 236, 239, 415 S.E.2d 218, 220 (1992).
Witness credibility, the weight accorded the testimony and the
inferences to be drawn from proven facts are matters to be
determined by the fact finder. See Long v. Commonwealth, 8 Va.
App. 194, 199, 379 S.E.2d 473, 476 (1989). The trial court's
judgment will not be set aside unless it appears that the
judgment is plainly wrong or without supporting evidence. See
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987).
To support a conviction for possession of a firearm after
having been convicted of a felony, the Commonwealth must prove
beyond a reasonable doubt that a defendant knowingly and
intentionally possessed the firearm. See Blake v. Commonwealth,
15 Va. App. 706, 427 S.E.2d 219 (1993). "[P]ossession may be
proved by 'evidence of acts, declarations or conduct of the
accused from which the inference may be fairly drawn that he
- 3 - knew of the existence of [the contraband] at the place where
they were found.'" Andrews v. Commonwealth, 216 Va. 179, 182,
217 S.E.2d 812, 814 (1975) (quoting Ritter v. Commonwealth, 210
Va. 732, 741, 173 S.E.2d 799, 806 (1970)). "[P]ossession 'need
not always be exclusive. The defendant may share it with one or
more.'" Josephs v. Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d
491, 497 (1990) (en banc) (quoting Gillis v. Commonwealth, 215
Va. 298, 301-02, 208 S.E.2d 768, 771 (1974)). Proximity to the
contraband is a factor that may be considered in determining
whether a defendant possessed the contraband. See Brown v.
Commonwealth, 15 Va. App. 1, 9, 421 S.E.2d 877, 882 (1992) (en
banc). Occupancy of the premises on which the contraband was
found is likewise a circumstance probative of possession. See
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
(1986).
Such circumstantial evidence may be sufficient to prove
possession. "Circumstantial evidence is as competent and is
entitled to as much weight as direct evidence, provided it is
sufficiently convincing to exclude every reasonable hypothesis
except that of guilt." Coleman v. Commonwealth, 226 Va. 31, 53,
307 S.E.2d 864, 876 (1983).
There is sufficient evidence in the case at bar to support
the trial court's finding that Ellis possessed the firearm.
Detective Pollack witnessed Ellis make a movement that appeared
as if he was dropping something, and then heard the sound of
- 4 - something hitting the floor. He then saw the firearm, within a
foot of where Ellis stood, with no other objects on the floor.
Accordingly, the trial court could conclude beyond a reasonable
doubt that Ellis possessed the firearm.
Our holding is supported by our prior decisions. In
Collins v. Commonwealth, 13 Va. App. 177, 409 S.E.2d 175 (1991),
we affirmed the defendant's conviction for possession of cocaine
with intent to distribute where a police officer came upon the
defendant in a vehicle at night in the parking lot of an
apartment complex. From a distance of about 30 feet, the
officer saw Collins make a throwing motion under his vehicle
with his right arm, and officers then retrieved baggies of
cocaine from under the car. In affirming the conviction, we
rejected arguments substantially identical to those now raised
by Ellis.
Collins asserted that no officer had seen any contraband in
his hand, but rather merely observed him in a dimly lit parking
lot make a motion with his hand. Consequently, Collins
contended that the evidence did not eliminate the possibility
that the cocaine already was under his car. We noted that
cocaine was something of significant value and not something
likely to have been abandoned or carelessly left behind and held
the evidence, when viewed in the light most favorable to the
Commonwealth, contained credible evidence to support Collins'
conviction. Id. at 179-80, 409 S.E.2d at 176.
- 5 - In Powell v. Commonwealth, 27 Va. App. 173, 497 S.E.2d 899
(1998), we upheld the defendant's conviction for cocaine
possession where police officers approached the defendant,
sitting on a low wall with two other men, and witnessed the
defendant place his clenched left hand behind his back keeping
it close to his body as he did so and then bring the hand,
unclenched, back to the front of his body. Immediately
thereafter, the police recovered a small paper bag containing
crack cocaine that had been lying on the ground directly behind
where the defendant had been sitting. In affirming Powell's
conviction for possession of cocaine, we stated:
[Powell's] suspicious hand movement and the fact that cocaine was found precisely where [he] would have dropped an object from his left hand behind his back, support the inference that [he] possessed the bag of cocaine and discarded it on the ground behind him when the officers approached.
Id. at 178-79, 497 S.E.2d at 901.
Consistent with these authorities, the evidence in this
case supports the trial court's determination that Ellis
constructively possessed the firearm. Accordingly, Ellis'
conviction is affirmed.
Affirmed.
- 6 -