Edward T Pitchford v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: September 24, 2002
• Docket: 1582011
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Felton and Senior Judge Hodges Argued at Chesapeake, Virginia

EDWARD T. PITCHFORD MEMORANDUM OPINION * BY v. Record No. 1582-01-1 JUDGE LARRY G. ELDER SEPTEMBER 24, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK D. Arthur Kelsey, Judge

Joseph R. Winston, Special Appellate Counsel (Public Defender Commission, on briefs), for appellant.

Linwood T. Wells, Jr., Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Edward T. Pitchford (appellant) appeals from his bench

trial convictions for possession of cocaine with intent to

distribute, possession of a firearm while in possession of

cocaine with intent to distribute, and possession of a firearm

after having been convicted of a felony. 1 On appeal, he contends

the evidence was insufficient to prove his constructive

possession of the firearm and cocaine found in the residence.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 Appellant pleaded guilty to possession of hashish and misdemeanor possession of marijuana. He does not challenge those convictions on appeal. We hold that appellant preserved this argument for appeal, but

we conclude the evidence was sufficient to prove appellant

resided in the house in which the firearm and cocaine were

found. Thus, we affirm the challenged convictions.

I.

PRESERVATION OF ISSUES FOR APPEAL

The Commonwealth contends appellant failed to preserve for

appeal his claim that the evidence was insufficient to prove he

constructively possessed the cocaine found inside the residence

at 103 Hawk Lane. We disagree and hold that appellant's

post-trial motion, made orally at the sentencing hearing, was

sufficient under Rule 5A:18 to preserve this issue for appeal.

In argument on appellant's post-trial motion, appellant

emphasized that "the only thing he had on him was a very small

amount of drugs," that his wife was found guilty of possessing

cocaine with intent to distribute based on her own admission,

and that no evidence proved he had access to the premises in

which the gun and larger quantity of drugs were found. The

trial court considered the motion in the context of both the

firearms convictions and the cocaine possession conviction,

noting "the law is settled that joint possession is sufficient

for the convictions of both [appellant and his wife,] . . .

[w]hich is what I held [on the charge of possession of cocaine

with intent to distribute], and likewise with the weapon." When

appellant again focused the court's attention on the lack of

- 2 - evidence that appellant had access to the residence, he did so

in the context of the firearms charges, but the court clearly

reconsidered in the context of all the charges, noting that it

had "found [appellant] guilty . . . of cocaine possession and

. . . having a weapon while being in . . . constructive

possession of cocaine."

The primary purpose of Rule 5A:18 is to give the trial

court the opportunity to correct its errors in order to avoid

unnecessary appeals and reversals. See, e.g., Robinson v.

Commonwealth, 13 Va. App. 574, 576-77, 413 S.E.2d 885, 886-87

(1992). Because the record establishes the trial court had that

opportunity here in regard to the sufficiency of the evidence to

prove constructive possession of the cocaine and firearm found

inside the residence, we hold Rule 5A:18 has been satisfied, and

we reach the merits of this issue.

II.

SUFFICIENCY OF THE EVIDENCE

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to the evidence all reasonable inferences fairly

deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987). Circumstantial evidence is

sufficient to support a conviction provided it excludes every

reasonable hypothesis of innocence flowing from the evidence.

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,

- 3 - 29 (1993). The only reasonable hypothesis flowing from the

evidence in this case is that appellant resided at 103 Hawk Lane

and was aware of the presence of the firearm under the mattress,

as well as the large quantity of cocaine and distribution

paraphernalia in plain view nearby, and that both the gun and

the drugs were subject to his dominion and control.

A.

APPELLANT'S RESIDENCE

Despite appellant's argument to the contrary, his counsel

stipulated, and the evidence proved, that he resided at 103 Hawk

Lane. While the officers were at 103 Hawk Lane to execute the

warrant, appellant departed his nearby place of employment and

arrived at the residence to sell a car to three men he had

arranged to meet there. When Officer Sandra Gilluly was asked

at trial to identify the location at which appellant stopped his

vehicle, she said she would have to refer to her notes.

Appellant's counsel said, "We would stipulate that it was the

defendant's -- 103 --," and Officer Gilluly then said, "103

Hawk[] Lane." The Commonwealth's attorney responded, "I'll move

along then."

Evidence in addition to this stipulation proved that 103

Hawk Lane was appellant's residence. Investigator Joseph

Coleman identified the residence as appellant's. A Virginia

Power bill found in appellant's car bore his name and the 103

Hawk Lane address, as did a W-2 Form for the immediately

- 4 - preceding tax year of 1998, which was found in the living room

of the residence during the February 5, 1999 search. Finally,

when Officer C.S. Patterson asked appellant whether they would

find any firearms in the residence, appellant responded that

"only one" firearm was in the house, that it was under the

mattress in the back bedroom, and that his wife used it "for her

protection when he was gone." Therefore, in addition to the

circumstantial evidence that appellant resided at 103 Hawk Lane,

appellant's express statement that he was aware of the number of

firearms in the house and that his wife kept a gun beneath the

mattress because he sometimes "was gone" from the residence

constituted an admission that he resided there with his wife.

The record also belies appellant's argument that the trial

court improperly shifted the burden of proof on this issue to

him. Although the court asked during appellant's post-trial

argument, "Was there any proffer made at trial that [103 Hawk

Lane] was not his residence?", the court's subsequent statements

made clear that it required the Commonwealth to prove

appellant's "guilt beyond a reasonable doubt." Noting

appellant's arrival at the residence while the officers were

there to execute the warrant, appellant's admitted awareness of

the gun beneath the mattress, 2 and "the information on the bills

2 The trial court erroneously characterized the evidence as proving "[appellant] [had] bought [the gun] for his wife." In fact, the evidence established only that appellant said his wife kept the weapon beneath the mattress and that it was for her

- 5 - . . . [and] other invoice-like information suggest[ing] it was

his residence," the court said that it "[gave] every reasonable

hypothesis of innocence to [appellant]" and that "[it] just

[could not] fathom that [appellant's counsel] [did not] think

the circumstantial evidence was sufficient for a finding of

guilt beyond a reasonable doubt."

B.

CONSTRUCTIVE POSSESSION

The evidence also proved appellant was aware of the

presence and character of the cocaine and firearm in the house

and that both were subject to his dominion and control.

The possession necessary to support convictions for the

possession of cocaine pursuant to Code § 18.2-248 and the

simultaneous possession of cocaine and a firearm pursuant to

protection when he was gone; it did not establish who purchased the weapon. However, appellant failed to bring this error to the trial court's attention, see Rule 5A:18, and in any event, the trial court's erroneous belief was harmless error. As appellant conceded on brief, his supposed prior actual possession of the firearm on an unknown date was insufficient to prove either that he possessed the firearm after having been convicted of a felony or that he possessed the firearm while he possessed cocaine. Further, as discussed infra in the text, the evidence was sufficient to prove appellant constructively possessed the firearm on the date he told police it was beneath the mattress. Based on the presumption that the trial court knows and has properly applied the law to the facts, in the absence of evidence to the contrary, see Yarborough v. Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977), we conclude "'beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained,'" Williams v. Commonwealth, 32 Va. App. 395, 399, 528 S.E.2d 166, 168 (2000) (en banc) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967)).

- 6 - Code § 18.2-308.4 may be actual or constructive. See, e.g.,

Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368

(en banc). Establishing constructive possession requires proof

"that the defendant was aware of both the presence and character

of the [item] and that it was subject to his dominion and

control." Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d

739, 740 (1984). A person's ownership or occupancy of premises

on which the subject item is found, proximity to the item, and

statements or conduct concerning the location of the item are

probative factors to be considered in determining whether the

totality of the circumstances supports a finding of possession.

Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826,

831-32 (1997). Possession "need not always be exclusive. The

defendant may share it with one or more." Josephs v.

Commonwealth, 10 Va. App. 87, 89, 390 S.E.2d 491, 497 (1990) (en

banc).

Appellant admitted that a firearm was located beneath the

mattress in the back bedroom. When the police searched that

bedroom, they found that firearm beneath the mattress and box

springs of a double or queen-sized bed, precisely where

appellant said it would be. The presence of the firearm "in

[appellant's] house," coupled with his statement to "the police

[that] they could find it [beneath the mattress in the back

bedroom], . . . was sufficient . . . to establish that

[appellant] had knowledge of the presence of the [firearm], and

- 7 - that [it] was subject to his dominion and control." Davis v.

Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922, 924-25

(1991) (emphasis added) (upholding conviction for possession of

marijuana where accused told police they would find it in his

basement, despite presence in house of accused's wife and a

friend who claimed at trial that the marijuana belonged to him

rather than to the accused). Although appellant, a convicted

felon, said the weapon belonged to his wife, the trial court was

entitled to reject this statement. The only reasonable

hypothesis flowing from the remaining evidence is that appellant

exercised at least joint possession of the weapon.

presence and character of the cocaine in the house and that it

was subject to his dominion and control. The police found a

large quantity of cocaine, marijuana, scales bearing white

residue, and one-inch plastic baggies in plain view in the same

bedroom in which appellant told them they would find the

firearm. The fact that police found cocaine on appellant's

person and cocaine and marijuana in his vehicle established his

familiarity with those substances and indicated his awareness of

the nature and character of the cocaine and marijuana in plain

view in the bedroom, as well.

For these reasons, we hold the evidence was sufficient to

prove that appellant constructively possessed both the firearm

- 8 - and the cocaine in the bedroom. Thus, we affirm the challenged

convictions.

Affirmed.

- 9 -