Kirk Lee Loney v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: March 2, 1999
• Docket: 1147982
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Elder and Annunziata Argued at Richmond, Virginia

KIRK LEE LONEY MEMORANDUM OPINION * BY v. Record No. 1147-98-2 JUDGE LARRY G. ELDER MARCH 2, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY James E. Kulp, Judge

Craig S. Cooley for appellant.

Richard B. Smith, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Kirk Lee Loney (appellant) appeals from his bench trial

conviction pursuant to Code § 18.2-308.2 for possessing a firearm

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

the evidence was insufficient to prove he constructively

possessed the weapon. We disagree and affirm the 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). The

credibility of a witness, the weight accorded the testimony, and

the inferences to be drawn from proved facts are matters to be

determined by the fact finder. See Long v. Commonwealth, 8 Va.

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. App. 194, 199, 379 S.E.2d 473, 476 (1989). The judgment will not

be set aside unless it is plainly wrong or without supporting

evidence. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358

S.E.2d 415, 418 (1987).

Proof that appellant constructively possessed the gun found

behind the brake pedal was sufficient to support his conviction

for possession of a firearm by a convicted felon. See Blake v.

Commonwealth, 15 Va. App. 706, 708-09, 427 S.E.2d 219, 220-21

(1993) (holding that principles applicable to constructive

possession of drugs also apply to constructive possession of

firearm).

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 [contraband] and that it was subject to his dominion and control."

Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845

(1986) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316

S.E.2d 739, 740 (1984)). Possession "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). Although mere proximity to the contraband is

insufficient to establish possession, it 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). Ownership or occupancy of the

- 2 - premises on which the contraband was found is likewise a

circumstance probative of possession. See Drew, 230 Va. at 473,

338 S.E.2d at 845 (citing Code § 18.2-250). Thus, in resolving

this issue, the Court must consider "the totality of the

circumstances disclosed by the evidence." Womack v.

Commonwealth, 220 Va. 5, 8, 255 S.E.2d 351, 353 (1979).

Circumstantial evidence of such possession is sufficient to

support a conviction, provided it excludes every reasonable

hypothesis of innocence. See Tucker v. Commonwealth, 18 Va. App.

141, 143, 442 S.E.2d 419, 420 (1994). However, "[t]he

Commonwealth need only exclude reasonable hypotheses of innocence

that flow from the evidence, not those that spring from the

imagination of the defendant." Hamilton v. Commonwealth, 16 Va.

App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether an alternative

hypothesis of innocence is reasonable is a question of fact, see

Cantrell v. Commonwealth, 7 Va. App. 269, 290, 373 S.E.2d 328,

339 (1988), and, therefore, is binding on appeal unless plainly

wrong. See Martin, 4 Va. App. at 443, 358 S.E.2d at 418.

The only reasonable hypothesis flowing from the evidence in

this case is that appellant constructively possessed the firearm

hidden behind the brake pedal. Appellant had in his actual

possession six rounds of .22 caliber ammunition which fit the

empty six chambers of the .22 caliber handgun. Although

appellant gave innocent explanations for his possession of the

ammunition, those explanations were conflicting, and the trial

court was entitled to conclude that both explanations were lies

- 3 - calculated to conceal appellant's guilt. See Speight v.

Commonwealth, 4 Va. App. 83, 88, 354 S.E.2d 95, 98 (1987) (en

banc). Most importantly, however, appellant does not dispute

that he told Officer Warren, "There is no gun in the car." Under

the totality of the circumstances, the only reasonable response

for an innocent person in appellant's position would have been to

tell the officer he did not know whether a gun was in the car.

The undisputed evidence was that appellant did not own the car,

and appellant contended that he had been in the car only a short

time in order to drive people home after a party. Appellant's

testimony that he found the ammunition in the driver's seat when

he entered the car further supports the theory that the only

reasonable response to Officer Warren's question about the gun

was that appellant did not know whether a weapon was in the car.

Although appellant testified that he had forgotten finding the

ammunition, the trial court, as the finder of fact, was entitled

to reject this testimony and to conclude that the only reasonable

hypothesis flowing from the remaining evidence in the record was

that appellant constructively possessed the firearm.

For these reasons, we affirm appellant's conviction. Affirmed.

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