COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Coleman Argued at Chesapeake, Virginia
KEVIN ANTOINE HERNDON MEMORANDUM OPINION * BY v. Record No. 2907-07-1 JUDGE SAM W. COLEMAN III MARCH 24, 2009 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Louis R. Lerner, Judge
Douglas J. Walter (McDermott, Roe & Walter, on brief), for appellant.
Joanne V. Frye, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Kevin Antoine Herndon, appellant, challenges his convictions for possession of a firearm
after having been convicted of a felony and possession of a firearm while in possession of drugs.
On appeal, he contends the evidence was insufficient to prove he possessed a firearm, an element of
the two offenses. Finding no error, we affirm the decision of the trial court.
Background
On February 17, 2006, Detective Christine Saunders and other members of a Special
Investigations Unit executed a search warrant at a dwelling where appellant resided with a married
couple and two children. When the officers entered the house, a man, a woman, and two children
were in the living room. Detective Saunders testified that appellant was seated at a dining room
table with an open shoebox located on the table directly in front of him. The contents of the open
shoebox were in plain view and included cocaine, marijuana, plastic bags, a cell phone, scales, and a
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. small key ring with two keys attached to it. The shoebox and the items in it were within reach of
appellant.
Another detective found a loaded handgun on the top shelf of a closet in a bedroom of the
house. The bedroom was that of Marcus and Danielle Cooper. The gun, which was secured with a
trigger lock, was inside a shoebox that also contained ammunition, a magazine, and narcotics.
Detective Saunders determined that the keys on the key ring located on the table in front of
appellant opened the trigger lock. Detective Saunders asked appellant if he knew anything about
the gun, and he initially denied knowledge of the firearm. Detective Saunders testified she then told
appellant “that the key he had on his key ring in front of him fit the gun lock.” She stated appellant
“kind of hung his head and shrugged a little bit and . . . he said he knew the gun was there and the
gun was there because of him, but that he did not own it.” Detective Saunders testified that
appellant told her he lived in the residence and he was a convicted felon. Detective Saunders stated
that Marcus Cooper told her the drugs found in the closet with the gun belonged to him. Marcus
Cooper was also charged with possession of a firearm.
Danielle Cooper testified that two days before the search warrant had been executed, she
discovered the firearm on top of the washing machine located in the bathroom. The key was in the
trigger lock. She stated she had never seen the gun before and she asked appellant about the
weapon. Danielle Cooper testified that appellant explained the gun belonged to his boss who had
left the gun there after a recent visit. She stated she removed the key from the trigger lock, gave the
key to appellant, put the gun on the shelf in the back of her closet, and told no one where she put the
gun.
Michael Feeney testified that appellant occasionally performed work for him and that on
either February 15 or 16, 2006, he had gone to appellant’s residence to pay him for his work.
Feeney explained that he had gone to a shooting range just prior to going to appellant’s house and
-2- had taken the gun with him. Feeney testified he inadvertently had left the gun in the bathroom. He
identified the recovered gun as his.
Appellant testified he had seen Feeney with the firearm during the visit, but did not realize
Feeney had left the gun until Danielle Cooper showed him the weapon. Appellant admitted that
Danielle Cooper gave him the key to the trigger lock, but he testified he did not touch the gun or
know where Danielle Cooper had put it. He also testified that the key ring was not inside the
shoebox when the detectives arrived, but was on the table where he had placed it several days
earlier.
The trial court found appellant guilty of the firearms offenses. 1
Analysis
“We have held in many cases that, upon appellate review, the evidence and all reasonable inferences flowing therefrom must be viewed in the light most favorable to the prevailing party in the trial court.” Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). “The judgment of the trial court is presumed to be correct and will be reversed only upon a showing that it is plainly wrong or without evidence to support it.” Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005) (internal quotation marks and citation omitted). The issue upon appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008).
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
1 Appellant entered Alford pleas to charges of possession with intent to distribute cocaine and possession with intent to distribute marijuana arising out of this same incident. See North Carolina v. Alford, 400 U.S. 25 (1972). These convictions are not before this Court. -3- and control.” Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986).
“[W]hen we consider the sufficiency of the evidence we do not consider each piece of
evidence in isolation. Instead, we review the totality of the evidence to determine whether it was
sufficient to prove an offense.” Bowling v. Commonwealth, 51 Va. App. 102, 107, 654 S.E.2d
354, 356 (2007) (citing Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215
(2004)).
It is of some significance, of course, that appellant lived in the house where the firearm
was found. “While no presumption arises from the . . . occupancy of premises where [an item] is
found, such circumstances may be considered by the court, along with other circumstances
disclosed by the evidence, in determining the defendant’s guilt or innocence.” Gillis v.
Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974). However, the evidence
disclosed much more than mere occupancy.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Beales and Senior Judge Coleman Argued at Chesapeake, Virginia
KEVIN ANTOINE HERNDON MEMORANDUM OPINION * BY v. Record No. 2907-07-1 JUDGE SAM W. COLEMAN III MARCH 24, 2009 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON Louis R. Lerner, Judge
Douglas J. Walter (McDermott, Roe & Walter, on brief), for appellant.
Joanne V. Frye, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Kevin Antoine Herndon, appellant, challenges his convictions for possession of a firearm
after having been convicted of a felony and possession of a firearm while in possession of drugs.
On appeal, he contends the evidence was insufficient to prove he possessed a firearm, an element of
the two offenses. Finding no error, we affirm the decision of the trial court.
Background
On February 17, 2006, Detective Christine Saunders and other members of a Special
Investigations Unit executed a search warrant at a dwelling where appellant resided with a married
couple and two children. When the officers entered the house, a man, a woman, and two children
were in the living room. Detective Saunders testified that appellant was seated at a dining room
table with an open shoebox located on the table directly in front of him. The contents of the open
shoebox were in plain view and included cocaine, marijuana, plastic bags, a cell phone, scales, and a
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. small key ring with two keys attached to it. The shoebox and the items in it were within reach of
appellant.
Another detective found a loaded handgun on the top shelf of a closet in a bedroom of the
house. The bedroom was that of Marcus and Danielle Cooper. The gun, which was secured with a
trigger lock, was inside a shoebox that also contained ammunition, a magazine, and narcotics.
Detective Saunders determined that the keys on the key ring located on the table in front of
appellant opened the trigger lock. Detective Saunders asked appellant if he knew anything about
the gun, and he initially denied knowledge of the firearm. Detective Saunders testified she then told
appellant “that the key he had on his key ring in front of him fit the gun lock.” She stated appellant
“kind of hung his head and shrugged a little bit and . . . he said he knew the gun was there and the
gun was there because of him, but that he did not own it.” Detective Saunders testified that
appellant told her he lived in the residence and he was a convicted felon. Detective Saunders stated
that Marcus Cooper told her the drugs found in the closet with the gun belonged to him. Marcus
Cooper was also charged with possession of a firearm.
Danielle Cooper testified that two days before the search warrant had been executed, she
discovered the firearm on top of the washing machine located in the bathroom. The key was in the
trigger lock. She stated she had never seen the gun before and she asked appellant about the
weapon. Danielle Cooper testified that appellant explained the gun belonged to his boss who had
left the gun there after a recent visit. She stated she removed the key from the trigger lock, gave the
key to appellant, put the gun on the shelf in the back of her closet, and told no one where she put the
gun.
Michael Feeney testified that appellant occasionally performed work for him and that on
either February 15 or 16, 2006, he had gone to appellant’s residence to pay him for his work.
Feeney explained that he had gone to a shooting range just prior to going to appellant’s house and
-2- had taken the gun with him. Feeney testified he inadvertently had left the gun in the bathroom. He
identified the recovered gun as his.
Appellant testified he had seen Feeney with the firearm during the visit, but did not realize
Feeney had left the gun until Danielle Cooper showed him the weapon. Appellant admitted that
Danielle Cooper gave him the key to the trigger lock, but he testified he did not touch the gun or
know where Danielle Cooper had put it. He also testified that the key ring was not inside the
shoebox when the detectives arrived, but was on the table where he had placed it several days
earlier.
The trial court found appellant guilty of the firearms offenses. 1
Analysis
“We have held in many cases that, upon appellate review, the evidence and all reasonable inferences flowing therefrom must be viewed in the light most favorable to the prevailing party in the trial court.” Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). “The judgment of the trial court is presumed to be correct and will be reversed only upon a showing that it is plainly wrong or without evidence to support it.” Viney v. Commonwealth, 269 Va. 296, 299, 609 S.E.2d 26, 28 (2005) (internal quotation marks and citation omitted). The issue upon appellate review is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Maxwell v. Commonwealth, 275 Va. 437, 442, 657 S.E.2d 499, 502 (2008).
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
1 Appellant entered Alford pleas to charges of possession with intent to distribute cocaine and possession with intent to distribute marijuana arising out of this same incident. See North Carolina v. Alford, 400 U.S. 25 (1972). These convictions are not before this Court. -3- and control.” Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).
Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986).
“[W]hen we consider the sufficiency of the evidence we do not consider each piece of
evidence in isolation. Instead, we review the totality of the evidence to determine whether it was
sufficient to prove an offense.” Bowling v. Commonwealth, 51 Va. App. 102, 107, 654 S.E.2d
354, 356 (2007) (citing Commonwealth v. Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215
(2004)).
It is of some significance, of course, that appellant lived in the house where the firearm
was found. “While no presumption arises from the . . . occupancy of premises where [an item] is
found, such circumstances may be considered by the court, along with other circumstances
disclosed by the evidence, in determining the defendant’s guilt or innocence.” Gillis v.
Commonwealth, 215 Va. 298, 301, 208 S.E.2d 768, 771 (1974). However, the evidence
disclosed much more than mere occupancy. When the officers entered the house, appellant was
seated at a table in front of an open shoebox that contained keys which fit the trigger lock of the
recovered gun. The keys were immediately in front of appellant and within his reach. When
Detective Saunders confronted appellant with the fact that the key “on his key ring” fit the
trigger lock, appellant did not deny that he possessed and was in control of the key ring or that it
belonged to him. Furthermore, in his own testimony, appellant admitted that he knew the keys
fit the trigger lock and that he had accepted and taken possession of the key from Danielle
Cooper when she questioned him about the firearm.
Appellant’s possession of the keys to the trigger lock provided him with the means to
exercise dominion and control over the gun. “‘The law is well established that possession of the
means to exercise dominion [and] control over an item gives the possessor dominion [and]
control over the item [itself.]’” Wright v. Commonwealth, 53 Va. App. 266, 274, 670 S.E.2d -4- 772, 776 (2009) (quoting Bell v. Commonwealth, 21 Va. App. 693, 698-99, 467 S.E.2d 289,
291-92 (1996) (holding that victim’s possession of keys to vehicle placed her in possession or
control of vehicle for purposes of carjacking statute, Code § 18.2-58.1)); cf. Burchette v.
Commonwealth, 15 Va. App. 432, 435-36, 425 S.E.2d 81, 84 (1992) (reversing conviction based
on constructive possession, noting lack of evidence that defendant possessed keys to vehicle
where contraband was found).
In addition, while appellant initially denied any knowledge of the gun, when confronted
with the fact that the key fit the trigger lock, he told Detective Saunders “he knew the gun was
there, it was there because of him, but it did not belong to him.” These inconsistent statements
not only proved his knowledge of the presence of the gun, but were further evidence of his guilt.
“A defendant’s false statements are probative to show he is trying to conceal his guilt, and thus
are evidence of his guilt.” Rollston v. Commonwealth, 11 Va. App. 535, 548, 399 S.E.2d 823,
831 (1991). From appellant’s statement that he knew the gun was “there,” the trial court could
infer that appellant knew the gun was “there” in the closet. “In its role of judging witness
credibility, the fact finder is entitled to disbelieve the self-serving testimony of the accused and
to conclude that the accused is lying to conceal his guilt.” Marable v. Commonwealth, 27
Va. App. 505, 509-10, 500 S.E.2d 233, 235 (1998).
Additionally, appellant’s evidence that the gun belonged to his employer, even if
accepted by the trial court, does not negate the fact that appellant constructively possessed the
gun since “a person may constructively possess [items] owned by another.” Hamilton v.
Commonwealth, 16 Va. App. 751, 756, 433 S.E.2d 27, 29 (1993). “Possession need not be
actual, exclusive, or lengthy in order to support a conviction; instead, the statute criminalizes
constructive or joint possession of illegal [items] of any duration.” Wells v. Commonwealth, 32
Va. App. 775, 781, 531 S.E.2d 16, 19 (2000). Regardless of who owned the gun, appellant’s
-5- knowledge of the presence of the gun in the house and his possession of the keys, which enabled
him to access and use the gun are sufficient to establish he exercised dominion and control of the
This case is distinguishable from several cases in which the Supreme Court of Virginia
has reversed convictions based on constructive possession. In Maxwell, drugs were found in a
stack of plywood located outside of a fence enclosing a lumberyard. Maxwell, 275 Va. at
440-41, 657 S.E.2d at 501. Police had been pursuing the accused who was seen walking out
from behind the stacks of plywood. Id. at 440, 657 S.E.2d at 501. The Court held:
All the Commonwealth is really left with, . . . is evidence that the defendant was seen near the stacks of plywood where the drugs were found. But it was not shown that he was ever in such close proximity as would support a finding that he was aware of both the presence and the character of the drugs and that they were subject to his dominion and control. In any event, while proximity is a factor to be considered along with other evidence, mere proximity is not sufficient to prove possession, and the utter lack of any other evidence connecting the defendant to the drugs creates a wide gap in the chain of circumstances that is fatal to the Commonwealth’s case.
Id. at 444, 657 S.E.2d at 503. See also Drew, 230 Va. at 473, 338 S.E.2d at 845 (reversing
conviction based on constructive possession where record contained no evidence of statements or
conduct tending to show accused was aware of presence of substance in dwelling and only
evidence of dominion and control was documents showing accused claimed dwelling address as
his residence); Jordan v. Commonwealth, 273 Va. 639, 647, 643 S.E.2d 166, 170-71 (2007)
(reversing conviction of driver, finding evidence did not establish driver was aware of presence
and character of ecstacy or that it was under his dominion and control where ecstacy found on
ground outside of stopped car on passenger side, only passenger was seen making furtive
gestures, only passenger admitted he had just been to “a club,” and driver possessed only a roll
of money).
-6- Unlike the circumstances in Maxwell, Drew, and Jordan, here, appellant occupied the
dwelling in which the firearm was found, he made a statement admitting his knowledge of the
presence of the gun in the house, and he possessed the trigger lock keys, which rendered the
firearm subject to his dominion and control. Therefore, from the evidence presented, the trial
court could conclude beyond a reasonable doubt that appellant constructively possessed the
firearm.
For these reasons, we affirm the judgment of the trial court.
Affirmed.
-7-