Kevin John McCoy v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: August 5, 2025
• Docket: 1012244
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges O’Brien, Causey and Bernhard UNPUBLISHED

KEVIN JOHN MCCOY MEMORANDUM OPINION* v. Record No. 1012-24-4 PER CURIAM AUGUST 5, 2025 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF PAGE COUNTY Clark A. Ritchie, Judge

(Caleb J. Routhier, on briefs), for appellant.

(Jason S. Miyares, Attorney General; Katherine Quinlan Adelfio, Senior Assistant Attorney General, on brief), for appellee.

A Page County jury convicted Kevin John McCoy of possessing a firearm as a convicted

felon. By final order entered on May 20, 2024, the trial court sentenced him to five years’

incarceration. On appeal, McCoy argues that the trial court erred denying his motion to suppress

evidence seized from his vehicle. He also challenges the sufficiency of the evidence. Finding no

error, we affirm.1

BACKGROUND2

In the early morning hours of February 28, 2023, Page County Sheriff’s Deputy Debellaistre

pulled over a Jeep after seeing it swerve between lanes with its headlights off. Deputy Debellaistre

* This opinion is not designated for publication. See Code § 17.1-413(A). 1 After examining the briefs and record in this case, the panel unanimously holds that oral argument is unnecessary because “the dispositive issue or issues have been authoritatively decided, and the appellant has not argued that the case law should be overturned, extended, modified, or reversed.” Code § 17.1-403(ii)(b); Rule 5A:27(b).

On appeal, “we review the evidence in the ‘light most favorable’ to the 2

Commonwealth.” Clanton v. Commonwealth, 53 Va. App. 561, 564 (2009) (en banc) (quoting approached the driver’s window and asked the driver—McCoy—for his driver’s license and

registration. McCoy’s wife, Sharon Williams, was the front seat passenger, and their three children

were in the back seat. Williams was not wearing a seatbelt, so Deputy Debellaistre also requested

her identification. Deputy Debellaistre observed “a fake inspection sticker on the vehicle as well.”

Deputy Debellaistre then “return[ed] to [his] patrol car” and “manually r[an]” McCoy’s and

Williams’s information “through [the] dispatch center.” He learned that Williams “was wanted [in]

another jurisdiction for a capias on drug charges.” Accordingly, he returned to the Jeep, informed

Williams that she was under arrest, ordered her to exit, and handcuffed her. McCoy remained in the

driver’s seat.

When Deputy Debellaistre searched Williams’s wallet incident to arrest, he discovered “a

small baggie which contained a crystal-like substance” that he suspected was methamphetamine.3

Williams then “requested a jacket out of the front seat,” which Deputy Debellaistre retrieved.

Deputy Debellaistre searched the jacket because Williams “was placed under arrest” and he had

“already found narcotics.” In the jacket, he found two small jars containing “a crystal-like

substance which [he] believed was methamphetamine at the time” and six rolled-up dollar bills

containing white residue.

Deputy Debellaistre then ordered McCoy to exit the Jeep so that he could remove the fake

inspection sticker and search the vehicle. Deputy Debellaistre and his partner attempted to scrape

the sticker off the windshield but could not “due to it being glued on there.” Deputy Debellaistre

then searched the Jeep. On the front passenger floorboard, he found a black box “contain[ing] a

Commonwealth v. Hudson, 265 Va. 505, 514 (2003)). That principle requires us to “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom.” Kelly v. Commonwealth, 41 Va. App. 250, 254 (2003) (en banc) (quoting Watkins v. Commonwealth, 26 Va. App. 335, 348 (1998)). 3 Williams carried her wallet with her when she exited the vehicle. -2- large quantity of a crystal-like substance.” In the center cup holder, he found six pills later

determined to be Fentanyl.

Deputy Debellaistre then located “a loaded handgun . . . wedged” between the front

passenger seat and the center console. When he “pulled it out and cleared it,” McCoy “voluntarily

stated that [it] was Sharon’s gun.” Deputy Debellaistre then “went around to the driver’s side,” and

saw a piece of clothing covering the gearshift lever in the center console. He lifted the clothing and

saw a “KelTec firearm with the handle facing the driver’s seat” and “the barrel facing the

passenger’s seat.”

A grand jury indicted McCoy for possessing a firearm as a convicted felon. Before trial,

McCoy moved to suppress the evidence seized from the Jeep, arguing that the search violated his

Fourth Amendment rights. At the suppression hearing, Deputy Debellaistre testified that when

McCoy was in the Jeep’s driver’s seat, he would have had “read[y] access” to the KelTec firearm.

McCoy testified at the suppression hearing that after Deputy Debellaistre removed him from

the vehicle, he stood beside the driver’s door. Both Deputy Debellaistre and his partner

unsuccessfully attempted to remove the inspection sticker from the windshield. While the officers

were scraping the sticker, they spilled a cup of coffee that was in the center console. One of the

officers retrieved paper towels from the patrol car to wipe up the spill. Then they gave McCoy a

summons for the unlawful sticker. McCoy estimated that the officers were inside the passenger

compartment for about five minutes.

According to McCoy, Deputy Debellaistre said that once he “finished cleaning up [the]

mess,” McCoy would be “able to leave.” Deputy Debellaistre also informed McCoy that they

would take Williams to the county jail and McCoy “could come there after a certain period of time

to bail her out.” McCoy claimed that the officers “allowed [him] to get back into the vehicle.” He

fastened his seatbelt, “started the vehicle, and was pulling off” when the officers ordered him to stop

-3- because “they had found something” on Williams. Only then, McCoy claimed, did the officers

search the Jeep and find the two firearms.

The Commonwealth recalled Deputy Debellaistre, who testified that he had decided to

search the Jeep after he found the suspected narcotics in Williams’s wallet and jacket. Deputy

Debellaistre never allowed McCoy to reenter the vehicle. Deputy Debellaistre clarified that he had

explained “the magistrate process” to McCoy, and told McCoy what he could do “if he was free to

go and nothing else was located.” But Deputy Debellaistre never told McCoy that he was free to

leave, and McCoy did not attempt to do so.

McCoy argued that, when the officers told him he was free to leave and allowed him to

reenter the vehicle, they ended the seizure effected by the initial traffic stop. He claimed that the

officers then seized him again when he attempted to drive away, searched the Jeep, and located the

firearms. McCoy argued that the officers lacked probable cause for the second seizure and search,

particularly given that they saw no contraband when they were inside the vehicle attempting to

remove the sticker.

The Commonwealth responded that the entire encounter constituted a single seizure. It

asked the trial court to deny the motion to suppress because the officers “acted appropriately” and

did not violate McCoy’s constitutional rights.

The trial court denied the motion. The trial court credited Deputy Debellaistre’s testimony

to the extent that it conflicted with McCoy’s. The court noted that the officers lawfully arrested

Williams on an outstanding capias. The officers found suspected illegal drugs during the

subsequent lawful search of Williams and her jacket. The trial court found that it was “reasonable

to believe that further evidence might be found in the vehicle.” The trial court therefore found that

the officers’ search of the car was lawful under Arizona v. Gant.4

4 556 U.S. 332 (2009). -4- Deputy Debellaistre and McCoy were also the key witnesses at the jury trial. Deputy

Debellaistre testified that when he found the firearm wedged between the passenger seat and the

center console, McCoy stated that it “was Sharon’s gun.” But McCoy said nothing when Deputy

Debellaistre found the KelTec firearm concealed near the gearshift lever.

McCoy testified in his own defense. He stated that he had “just purchased” the Jeep several

days before the stop. Further, he explained to the jury that “the whole vehicle was full of stuff”

because they “were in the process . . . of moving things from one house to another.” McCoy denied

knowledge that either firearm was present in the Jeep. He stated that it “would have been hard to

say what exactly was in the vehicle” because he was “not going to pat” his wife down before she

entered the car.

McCoy also expressly denied telling Deputy Debellaistre at the scene that the first firearm

belonged to Williams. Rather, he claimed that when Deputy Debellaistre “held up” that firearm,

McCoy said “you’re a liar. There ain’t no guns in there.”

McCoy moved to strike the evidence, arguing that the Commonwealth failed to prove

beyond a reasonable doubt that he knowingly and intentionally possessed a firearm. The trial court

denied the motion. The jury convicted McCoy. He now appeals, challenging the trial court’s orders

denying his motion to suppress and his motions to strike the evidence.

ANALYSIS

I. Motion to suppress

“In this Court, [McCoy] ‘bears the burden to show that the [trial] court committed reversible

error by denying [his] motion to suppress.’” Ayala v. Commonwealth, 79 Va. App. 41, 49 (2023)

(alterations in original) (quoting Keepers v. Commonwealth, 72 Va. App. 17, 33 (2020)). A

defendant’s “claim that evidence was seized in violation of the Fourth Amendment presents a mixed

question of law and fact that we review de novo on appeal.” Baskerville v. Commonwealth, 76

-5- Va. App. 673, 684 (2023) (quoting King v. Commonwealth, 49 Va. App. 717, 721 (2007)). We

defer to the trial court’s factual findings, reviewing them “only for clear error,” and “giv[ing] due

weight to inferences drawn from those facts by resident judges and local law enforcement officers.”

Id. (quoting Long v. Commonwealth, 72 Va. App. 700, 712 (2021)). But we “independently decide

whether, under the applicable law, the manner in which the challenged evidence was obtained

satisfies constitutional requirements.” Id. (quoting Shifflett v. Commonwealth, 47 Va. App. 141,

145 (2005)).

Under the Fourth Amendment’s prohibition against unreasonable searches and seizures,

“[w]arrantless searches are per se unreasonable, subject to a few specifically established and

well-delineated exceptions.” Parady v. Commonwealth, 78 Va. App. 18, 28-29 (2023) (quoting

Megel v. Commonwealth, 262 Va. 531, 534 (2001)). One such longstanding exception applies to

automobiles. Collins v. Virginia, 584 U.S. 586, 591 (2018). Under this exception to the warrant

requirement, police officers “may search an automobile without having obtained a warrant so long

as they have probable cause to do so.” Id. at 592. This exception is grounded in both the “ready

mobility” of motor vehicles, and the fact that such vehicles are already subject to “pervasive

regulation.” Id. (quoting California v. Carney, 471 U.S. 386, 390, 392 (1985)). “If probable cause

justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle

and its contents that may conceal the object of the search.” Wyoming v. Houghton, 526 U.S. 295,

301 (1999) (quoting United States v. Ross, 456 U.S. 798, 825 (1982)).

Probable cause to search a vehicle exists when “there is a fair probability that contraband or

evidence of a crime will be found” there. Curley v. Commonwealth, 295 Va. 616, 622 (2018)

(quoting Jones v. Commonwealth, 277 Va. 171, 178 (2009)). When determining whether an officer

had probable cause to search, a court assesses the “historical facts . . . viewed from the standpoint of

an objectively reasonable police officer.” Id. (quoting District of Columbia v. Wesby, 583 U.S. 48,

-6- 56-57 (2018)). “Probable cause ‘is not a high bar,’” and “requires only a probability or substantial

chance of criminal activity, not an actual showing of such activity.” Wesby, 583 U.S. at 57 (first

quoting Kaley v. United States, 571 U.S. 320, 338 (2014); and then quoting Illinois v. Gates, 462

U.S. 213, 243 n.13 (1983)). When determining whether probable cause existed, a reviewing court

must examine the totality of the circumstances rather than any fact in isolation. Id.

Having reviewed the record, we conclude that the officers had probable cause to search the

Jeep for illegal narcotics.5 After Deputy Debellaistre removed Williams from the car, he found

suspected narcotics in both her wallet and her jacket. Deputy Debellaistre knew that both the wallet

and the jacket were in the Jeep’s passenger compartment at the time of the stop. Thus, Deputy

Debellaistre knew that multiple pieces of contraband were in the Jeep at the time he stopped it.

A reasonable officer considering these facts could conclude that there was a “fair

probability” that the Jeep contained additional illegal narcotics. By analogy, if Deputy Debellaistre

had seen the same suspected narcotics in plain view inside the Jeep at the beginning of the

encounter, he would have had probable cause to search the Jeep for additional narcotics. The fact

that Deputy Debellaistre discovered the narcotics by different, lawful means does not make that

inference any less reasonable. Accordingly, the officers had probable cause to search the Jeep.

Thus, the trial court did not err in denying McCoy’s motion to suppress evidence that the police

seized during the search.

5 As noted above, in denying McCoy’s motion to suppress, the trial court relied on Arizona v. Gant. In Gant, the United States Supreme Court held that police officers lawfully may search a vehicle after arresting a recent occupant if it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” 556 U.S. at 333 (quoting Thornton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring in the judgment)). McCoy argues that Gant is inapplicable because the officers arrested Williams on an outstanding capias; thus, there could be no additional evidence related to the capias in the vehicle. Given our conclusion that the officers had probable cause to search the Jeep, we need not address McCoy’s argument that the trial court misapplied Gant. -7- II. Sufficiency of the evidence

“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is

presumed correct and will not be disturbed unless it is plainly wrong or without evidence to

support it.’” McGowan v. Commonwealth, 72 Va. App. 513, 521 (2020) (alteration in original)

(quoting Smith v. Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does

not ask itself whether it believes that the evidence at the trial established guilt beyond a

reasonable doubt.’” Id. (alteration in original) (quoting Secret v. Commonwealth, 296 Va. 204,

228 (2018)). “Rather, the relevant question is whether ‘any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.’” Vasquez v.

Commonwealth, 291 Va. 232, 248 (2016) (quoting Williams v. Commonwealth, 278 Va. 190, 193

(2009)). “If there is evidentiary support for the conviction, ‘the reviewing court is not permitted

to substitute its own judgment, even if its opinion might differ from the conclusions reached by

the finder of fact at the trial.’” McGowan, 72 Va. App. at 521 (quoting Chavez v.

Commonwealth, 69 Va. App. 149, 161 (2018)).

To convict a defendant of unlawfully possessing a firearm,6 “the Commonwealth must

prove beyond a reasonable doubt that the accused was aware of the presence and character of the

[firearm] and that the accused consciously possessed it.” Yerling v. Commonwealth, 71 Va. App.

527, 532 (2020); see Myers v. Commonwealth, 43 Va. App. 113, 122 (2004). “Possession and

not ownership is the vital issue.” Smallwood v. Commonwealth, 278 Va. 625, 631 (2009)

(quoting Burnette v. Commonwealth, 194 Va. 785, 792 (1953)). In proving possession, as with

any other element, “[c]ircumstantial evidence is competent and is entitled to as much weight as

direct evidence[,] provided that the circumstantial evidence is sufficiently convincing to exclude

6 It is unlawful for “any person who has been convicted of a felony” to “knowingly and intentionally possess or transport any firearm.” Code § 18.2-308.2(A). -8- every reasonable hypothesis except that of guilt.” Finney v. Commonwealth, 277 Va. 83, 89

(2009) (quoting Dowden v. Commonwealth, 260 Va. 459, 468 (2000)).

Further, “proof of actual possession is not required; proof of constructive possession will

suffice.” Yerling, 71 Va. App. at 532 (quoting Walton v. Commonwealth, 255 Va. 422, 426

(1998)); see Bolden v. Commonwealth, 275 Va. 144, 148 (2008). The Commonwealth proves

that a defendant constructively possessed a firearm by establishing “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 [firearm] and that the [firearm] was subject to his

dominion and control.” Commonwealth v. Garrick, 303 Va. 176, 183 (2024). “While the

Commonwealth does not meet its burden of proof simply by showing the defendant’s proximity

to the firearm, it is a circumstance probative of possession and may be considered as a factor in

determining whether the defendant possessed the firearm.” Bolden, 275 Va. at 148; see Hall v.

Commonwealth, 69 Va. App. 437, 448 (2018) (holding that “ownership or occupancy of

premises on which the [firearm] is found” and “proximity to” the firearm “are probative factors

to be considered in determining whether the totality of the circumstances supports a finding of

possession”).

We conclude that a rational factfinder viewing the evidence in the light most favorable to

the Commonwealth could conclude that McCoy possessed the KelTec firearm. The firearm was

concealed near the gearshift lever, within arm’s reach when McCoy sat in the driver’s seat.

Although this proximity does not conclusively establish that he possessed the firearm, it is

probative of a finding that he did so. See Garrick, 303 Va. at 184; Hall, 69 Va. App. at 448.

Additionally, “[t]he probative value of [McCoy’s] proximity to the [firearm] increased given that he

was the” driver—and purported owner—of the Jeep. Garrick, 303 Va. at 184. Specifically, the

-9- firearm’s location near the gearshift lever strengthens the inference that McCoy, as the driver,

was aware of the firearm’s nature and presence. See Yerling, 71 Va. App. at 532.

Further, at trial McCoy expressly denied knowing that either firearm was in the Jeep. He

also claimed that he did not state that the firearm wedged between the passenger seat and the

center console was “Sharon’s gun,” as Deputy Debellaistre testified. Indeed, he testified that he

had accused Deputy Debellaistre of lying when he stated that he found a firearm in the Jeep

because there were no “no guns” in there.

“In its role of judging witness credibility,” the jury was “entitled to disbelieve” McCoy’s

“self-serving testimony” and conclude that he was “lying to conceal his guilt.” Flanagan v.

Commonwealth, 58 Va. App. 681, 702 (2011) (quoting Marable v. Commonwealth, 27 Va. App.

505, 509-10 (1998)). “[I]f the jury did disbelieve [McCoy], it was further entitled to consider

whatever it concluded to be perjured testimony as affirmative evidence of guilt.” Wright v. West,

505 U.S. 277, 296 (1992).

In sum, a jury viewing the evidence in its totality in the light most favorable to the

Commonwealth could find that McCoy possessed the KelTec firearm that Deputy Debellaistre

found in the Jeep near the gearshift lever.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s judgment.

Affirmed.

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