Reginald David Vest v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: February 15, 2000
• Docket: 0803993
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Senior Judge Cole Argued at Salem, Virginia

REGINALD DAVID VEST MEMORANDUM OPINION * BY v. Record No. 0803-99-3 JUDGE LARRY G. ELDER FEBRUARY 15, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG Mosby G. Perrow, III, Judge

Joseph A. Sanzone (Sanzone & Baker, P.C., on brief), for appellant.

Jeffrey S. Shapiro, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Reginald David Vest (appellant) appeals from his bench trial

convictions for possession of a firearm while in possession of a

controlled substance and possession of a firearm while possessing,

with intent to distribute, more than one pound of marijuana

pursuant to Code § 18.2-308.4, subsections (A) and (B),

respectively. 1 On appeal, he contends the evidence was

insufficient to prove he constructively possessed the firearm he

told officers was in his bedroom dresser drawer. We hold that the

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. 1 Appellant also was convicted for possession of marijuana with intent to distribute and possession of cocaine. He does not challenge those convictions on appeal. only reasonable hypothesis flowing from the evidence--including

the location of the weapon and appellant's statement to officers

regarding its location--is that appellant constructively possessed

the weapon. Therefore, we affirm his convictions.

Under familiar principles of appellate review, we examine

the evidence in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

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

S.E.2d 415, 418 (1987). The credibility of a witness, the

weight accorded the testimony, and the inferences to be drawn

from proven facts are matters solely for the fact finder's

determination. See Long v. Commonwealth, 8 Va. App. 194, 199,

379 S.E.2d 473, 476 (1989).

The possession necessary to support a conviction for the

simultaneous possession of marijuana and a firearm pursuant to

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

(1994) (en banc). The principles applicable to determining

whether a defendant constructively possessed drugs are equally

applicable to determining whether he constructively possessed a

firearm. See Blake v. Commonwealth, 15 Va. App. 706, 708-09,

427 S.E.2d 219, 220-21 (1993). Those principles require proof

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

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

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

739, 740 (1984).

Circumstantial evidence of possession is sufficient to

support a conviction provided it excludes every reasonable

hypothesis of innocence flowing from the evidence. See Hamilton

v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).

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. See 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, 99, 390 S.E.2d 491, 497 (1990) (en

banc).

The only reasonable hypothesis flowing from the evidence in

this case is that appellant was aware of the presence of the .25

caliber semiautomatic pistol located in the dresser drawer in

the bedroom he shared with his girlfriend and that it was

subject to his dominion and control. When questioned by police

regarding whether any weapons were in the house, appellant

directed them to the pistol in the dresser and accurately

reported that the pistol was loaded. Although appellant said

the pistol belonged to his girlfriend, the trial court was

- 3 - entitled to reject the statement of appellant, who led police to

a small amount of marijuana in his living room but originally

lied about the presence of an additional two pounds of marijuana

in his home. See Pugliese v. Commonwealth, 16 Va. App. 82, 92,

428 S.E.2d 16, 24 (1993). It also was entitled to reject the

testimony of appellant's girlfriend that "he never messed with

the gun," which it did expressly in finding that her testimony

was not credible. See id. The remaining evidence, including

the presence of the firearm "in [appellant's] house," coupled

with his statement to "the police [that] they could find it in

the [dresser drawer], . . . was sufficient . . . to establish

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

and 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) (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 the

accused) (emphasis added). The only reasonable hypothesis

flowing from the evidence is that appellant exercised at least

joint possession of the weapon.

- 4 - We hold the evidence was sufficient to prove appellant

constructively possessed the pistol, and we affirm the

challenged convictions.

Affirmed.

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