COURT OF APPEALS OF VIRGINIA UNPUBLISHED
Present: Chief Judge Huff, Judges Decker and Russell Argued at Chesapeake, Virginia
ROBERT CHRISTOPHER AMES MEMORANDUM OPINION* BY v. Record No. 0526-16-1 JUDGE MARLA GRAFF DECKER NOVEMBER 7, 2017 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH Steven C. Frucci, Judge
Bassel Khalaf, Assistant Public Defender, for appellant.
Virginia B. Theisen, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Robert Christopher Ames appeals his convictions for possession of a concealed weapon,
possession of a firearm by a convicted felon, and possession of marijuana, in violation of Code
§§ 18.2-250.1, -308, and -308.2. He argues that the trial court erred by admitting testimony that
he asserted his Fourth Amendment rights as substantive evidence of his guilt. The appellant also
challenges the sufficiency of the evidence to prove that he had constructive possession of the
firearm and marijuana and that the location of the firearm rendered it accessible for immediate
use. For the reasons that follow, we affirm the convictions.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I. BACKGROUND1
While on patrol on the evening of August 28, 2014, Officer Spencer Parrish with the
Virginia Beach Police Department detected a strong odor of unburned marijuana as he walked
across a convenience store parking lot to his police car. There was a Honda parked in front of
the store with the driver’s side door open. Parrish saw the appellant in the driver’s seat “digging
around” inside the center console of the vehicle. The officer returned to his car and told his
partner, Officer Mark Bennett, about the odor. He told Bennett that he believed that the smell
was coming from the appellant’s vehicle. They moved the marked police car behind the Honda.
Both Parrish and Bennett, who were in uniform, approached the car. The officers
smelled the odor of marijuana coming from the open driver’s door. The appellant was the only
person inside the vehicle, and he continued rummaging in the center console “area.” Bennett
identified himself and started talking to the appellant. The appellant got out of the car, turned to
face Bennett, and “slammed” the car door behind him. Officer Bennett asked how much
marijuana was in the car. The appellant’s hands shook, his voice trembled, and he was breathing
heavily. He started walking away from the car. At that point, Bennett asked for his
identification. The appellant provided an identification card, although he had difficulty doing so
because his hands were shaking.
Bennett explained to the appellant that he was being detained because of the marijuana
odor coming from the car. The appellant denied that the car smelled like marijuana. Bennett
told the appellant to put his hands behind his back. As the officers took hold of the appellant’s
1 Factual findings underlying rulings on the admissibility of evidence are subject to deference upon appellate review unless plainly wrong or without evidence to support them. See Lynch v. Commonwealth, 46 Va. App. 342, 350, 617 S.E.2d 399, 403 (2005), aff’d, 272 Va. 204, 630 S.E.2d 482 (2006). Accordingly, appellate review of admissibility issues, like sufficiency issues, requires this Court to view the evidence in the light most favorable to the Commonwealth as the party prevailing below. See, e.g., Shackleford v. Commonwealth, 262 Va. 196, 200, 547 S.E.2d 899, 901 (2001); Lynch, 46 Va. App. at 345, 617 S.E.2d at 400. -2- wrists, he tried to pull his hands away from them. The appellant asked why he was being
arrested. As Officer Bennett moved the appellant toward the police car, he yelled, “You can’t do
that. You can’t search my car.” The appellant tried to run, but Bennett maintained his hold on
the appellant’s wrist and the handcuffs. Eventually, the officers were able to subdue the
appellant.
Parrish and Bennett searched the Honda. Officer Parrish opened the center console and
immediately found a loaded Glock handgun. A plastic bag containing marijuana was found in a
closed compartment in the center of the dashboard. A digital scale was also recovered. The
police learned that the Honda was registered to a female, and they found a Virginia identification
card belonging to Taj Haskins in the car.
The appellant was tried on charges of unlawfully carrying a concealed weapon,
possessing a firearm after being convicted of a felony, possessing marijuana, and resisting arrest.
At the conclusion of the Commonwealth’s evidence, the trial court granted the appellant’s
motion to strike the charge of resisting arrest. The court convicted the appellant of the remainder
of the charges. He was sentenced to a total of seven years and thirty days in prison, with all
except two years suspended.
II. ANALYSIS
The appellant argues that the trial court erred by admitting the testimony that he asserted
his rights under the Fourth Amendment as substantive evidence of guilt. He also contends that
the evidence did not support his convictions.
A. Admissibility of Testimony
The appellant argues that the trial court erred by admitting testimony that he asked the
police officers why he was being “arrested” and that he yelled that they could not search his car.
He contends that allowing the Commonwealth to use his assertions of his Fourth Amendment
-3- rights as substantive evidence of his guilt was an impermissible “penalty for asserting a
constitutional privilege.”2 The appellant also argues that the statements were more prejudicial
than probative in violation of Rule of Evidence 2:403.
The standard of review on appeal is well settled. The “admissibility of evidence is within
the broad discretion of the trial court, and a ruling will not be disturbed on appeal in the absence
of an abuse of discretion.” Cousins v. Commonwealth, 56 Va. App. 257, 272, 693 S.E.2d 283,
290 (2010) (quoting Blain v. Commonwealth, 7 Va. App. 10, 16, 371 S.E.2d 838, 842 (1988)).
“This bell-shaped curve of reasonability governing our appellate review rests on the venerable
belief that the judge closest to the contest is the judge best able to discern where the equities lie.”
Thomas v. Commonwealth, 62 Va. App. 104, 111-12, 742 S.E.2d 403, 407 (2013) (quoting
Hamad v. Hamad, 61 Va. App. 593, 607, 739 S.E.2d 232, 239 (2013)). A reviewing court can
conclude that “an abuse of discretion has occurred” only in cases in which “reasonable jurists
could not differ” about the correct result. Commonwealth v. Swann, 290 Va. 194, 197, 776
S.E.2d 265, 268 (2015) (quoting Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634,
644 (2009)). “[B]y definition,” however, a trial court “abuses its discretion when it makes an
error of law.” Coffman v. Commonwealth, 67 Va. App. 163, 166, 795 S.E.2d 178, 179 (2017)
(quoting Commonwealth v. Greer, 63 Va. App. 561, 568, 760 S.E.2d 132, 135 (2014)).
The appellant argues that the challenged statements could not be used as substantive
evidence of his guilty knowledge of the presence of the contraband in the car any more than an
accused’s exercise of his or her Fifth Amendment right to remain silent can be used as evidence
of guilt. See Griffin v. California, 380 U.S. 609, 615 (1965) (holding that the prosecution may
not comment on “the accused’s silence” and that the trial court cannot instruct the jury that “such
2 The appellant’s question “why” he was “under arrest” was not an assertion of a right. However, to the extent that it could be considered as such, we address it jointly with his statement that the police could not search his car. -4- silence is evidence of guilt”). He suggests that assertions of Fourth Amendment rights are per se
inadmissible evidence but provides no applicable legal authority supporting this proposition.3
We see no basis for creation of such a per se rule.
The appellant also contends that the challenged statements were inadmissible under the
traditional probative versus prejudice framework because the trial court failed to adequately
consider the unfairly “prejudicial effect of penalizing” him for asserting his Fourth Amendment
rights. Generally, relevant evidence should be excluded only if “the probative value of the
evidence is substantially outweighed by . . . the danger of unfair prejudice.”4 Commonwealth v.
Proffitt, 292 Va. 626, 635, 792 S.E.2d 3, 7 (2016) (alteration in original) (quoting Va. R. Evid.
2:403(a)). “In determining whether relevant evidence should be admitted, the trial court must
apply a balancing test to assess the probative value of the evidence and any undue prejudicial
effect of that evidence.” McCloud v. Commonwealth, 269 Va. 242, 257, 609 S.E.2d 16, 24
(2005). “Virginia law . . . intervenes only when the alleged prejudice tends to inflame irrational
emotions or leads to illegitimate inferences.” Thomas v. Commonwealth, 44 Va. App. 741, 758,
607 S.E.2d 738, 746, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005); see,
e.g., Turner v. Commonwealth, 65 Va. App. 312, 330, 777 S.E.2d 569, 578 (2015) (holding that
3 The out-of-state and federal cases cited by the appellant are not applicable here because they arose in the context of probable cause and reasonable suspicion determinations. See United States v. Alexander, 835 F.2d 1406, 1409 n.3 (11th Cir. 1988) (noting that the defendant’s refusal to consent to a search was not probative in determining whether the circumstances established probable cause to search); State v. Brown, 825 P.2d 282, 285 (Or. 1992) (holding that an individual’s assertion of his Fourth Amendment rights did not provide “reasonable grounds to search” his car); State v. Gressel, 554 P.2d 1014, 1016 (Or. 1976) (“[A] suspicion . . . aroused merely on the basis of an assertion of one’s constitutional rights[] can play no part in creating probable cause for a search.”); see also United States v. Wilson, 953 F.2d 116, 126 (4th Cir. 1991) (holding that the defendant’s refusal of the police request to search did not justify the investigative stop). 4 The appellant does not contend that the challenged statements were irrelevant, nor does he argue that they were inadmissible hearsay. -5- the probative value of the evidence of mail addressed to the defendant found “near the drugs and
other evidence of drug distribution” was not “substantially outweighed by any prejudice” to
him).
The appellant’s question why he was arrested was not prejudicial; it did not tend to
“inflame irrational emotions” or give rise to “impermissible inferences,” particularly in the
context of a bench trial.5 Thomas, 44 Va. App. at 758, 607 S.E.2d at 746. To the extent that the
appellant’s question of why he was “arrested” and his declaration that the police officers could
not search his car supported the inference that the appellant knew that he had contraband in the
car, that incidental prejudice was outweighed by the evidence’s probative value. See generally
Thomas, 44 Va. App. at 758, 607 S.E.2d at 746; Burchette v. Commonwealth, 15 Va. App. 432,
438, 425 S.E.2d 81, 85 (1992) (holding that the defendant’s refusal to give consent for police
officers to search the car was not sufficient to prove that he had constructive possession of the
contraband in the car). It is clear from the record that the trial court was aware of its
responsibility to weigh the probative value against the prejudicial effect of the evidence and did
so.
The Commonwealth sought to prove the sequence of events underlying the charge of
resisting arrest as well as the appellant’s connection to the car. The appellant’s question why he
was “arrest[ed]” was relevant to the charge of resisting arrest. In addition, his declaration that
the officers could not search “his” car was probative of his connection to the vehicle and
consequently relevant to the charges relating to possession of the contraband inside it. See
Burchette, 15 Va. App. at 435, 425 S.E.2d at 83 (noting that “[o]wnership or occupancy of a
5 “[A] judge, unlike a juror, is uniquely suited by training, experience and judicial discipline to disregard potentially prejudicial comments” in evidence. Smith v. Commonwealth, 280 Va. 178, 184, 694 S.E.2d 578, 581 (2010) (quoting Eckhart v. Commonwealth, 222 Va. 213, 216, 279 S.E.2d 155, 157 (1981)). -6- vehicle” where illicit materials are found is relevant to proving constructive possession). In light
of the probative value of the challenged evidence, the trial court reasonably concluded that the
probative value of the statements outweighed the danger of any incidental prejudice.6
Consequently, the trial court acted within its discretion by admitting the challenged testimony.
B. Sufficiency of the Evidence
The appellant argues that the evidence was insufficient to support his convictions because
the Commonwealth did not prove beyond a reasonable doubt that (1) he constructively possessed
the firearm or marijuana and (2) he concealed the firearm while maintaining its accessibility.
In the context of review of the sufficiency of the evidence, this Court upholds “the
conviction unless it is plainly wrong or without evidence to support it.” Shackleford v.
Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 906 (2001). In addition, we view the record
in the light most favorable to the Commonwealth, the prevailing party at trial. Sierra v.
Commonwealth, 59 Va. App. 770, 774, 722 S.E.2d 656, 657 (2012). To do so, we “discard the
evidence of the accused in conflict with that of the Commonwealth.” Dickerson v.
Commonwealth, 58 Va. App. 351, 357, 709 S.E.2d 717, 720 (2011) (quoting Cooper v.
Commonwealth, 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009)). The Court also accepts as
true all the credible evidence favorable to the prosecution as well as all fair inferences in support
of the conviction that may be drawn from the record. Id.
Further, if the evidence is sufficient to support the conviction, the reviewing appellate court
will not “substitute its own judgment for that of the trier of fact, even if its opinion might differ from
the conclusions reached by the [fact finder].” Jordan v. Commonwealth, 286 Va. 153, 156-57, 747
6 In light of this holding, we do not address whether the alleged error was harmless. See generally Blackman v. Commonwealth, 45 Va. App. 633, 639 n.1, 613 S.E.2d 460, 463 n.1 (2005) (noting that the affirmance of the appeal on the merits rendered analysis of the Commonwealth’s harmless error argument unnecessary). -7- S.E.2d 799, 800 (2013). The appellant was tried by the circuit court, sitting without a jury.
Consequently, that court was the fact finder, and its judgment is afforded the “same weight as a
jury verdict.” Goode v. Commonwealth, 52 Va. App. 380, 384, 663 S.E.2d 532, 534 (2008)
(quoting Saunders v. Commonwealth, 242 Va. 107, 113, 406 S.E.2d 39, 42 (1991)).
1. Constructive Possession
The Commonwealth may prove possession of contraband by showing either actual or
constructive possession. See Smallwood v. Commonwealth, 278 Va. 625, 629-30, 688 S.E.2d
154, 156 (2009). Constructive possession principles apply equally to considering possession of a
firearm and possession of illegal drugs. See id. “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.’” Watts v. Commonwealth, 57 Va. App. 217, 232-33,
700 S.E.2d 480, 488 (2010) (alteration in original) (quoting Powers v. Commonwealth, 227 Va.
474, 476, 316 S.E.2d 739, 740 (1984)). The Commonwealth is not required to prove that the
appellant’s possession was exclusive. Smallwood, 278 Va. at 630, 688 S.E.2d at 156.
The “issue [of what constitutes constructive possession] is largely a factual one and must
be established by evidence of the acts, declarations and conduct of the accused.” Id. (alteration
in original) (quoting Ritter v. Commonwealth, 210 Va. 732, 743, 173 S.E.2d 799, 807 (1970)).
In addition, “[o]wnership or occupancy of a vehicle . . . where illicit drugs are found is a
circumstance that may be considered together with other evidence tending to prove that the
owner or occupant exercised dominion and control over items in the vehicle.” Burchette, 15
Va. App. at 435, 425 S.E.2d at 83. Further, “proof that a person is in close proximity to
contraband is a relevant fact.” Id. It is also clear that “a ‘drug’s distinctive odor’ can be
circumstantial evidence to support a finding that a defendant knew of the nature and character of
the substance in his possession.” Ervin v. Commonwealth, 57 Va. App. 495, 507, 704 S.E.2d
-8- 135, 141 (2011) (en banc) (quoting Young v. Commonwealth, 275 Va. 587, 591, 659 S.E.2d
308, 310 (2008)).
The trial court found “as a matter of fact that there was a strong odor [of marijuana], that
the description of the defendant’s behavior was as described by the officers[,] and that he was
exercising dominion and control over that gun.” The judge also stated that although he did not
“know what [the appellant] was doing in the console, . . . based on his actions . . . he was
exercising dominion and control over both the firearm and the marijuana.”
The appellant was in the driver’s seat of a car that was emitting a strong odor of unburned
marijuana. He had his hands inside the center console in which the police found the firearm.
When confronted by police officers, the appellant removed his hands from the console, got out of
the vehicle, abruptly closed the door, appeared “very nervous,” tried to walk away, and then later
tried to run. Marijuana was found in a front center compartment of the car. This was in close
proximity to the areas of the vehicle that the appellant alone occupied and in which he had been
rummaging. The appellant claimed a possessory interest in the car that was emitting the odor of
marijuana. Further, after the officers confronted him with the fact that the car smelled like
marijuana, the appellant denied it and attempted to flee. See Ragland v. Commonwealth, 67
Va. App. 519, 533, 797 S.E.2d 437, 444 (2017) (“[A]ffirmative acts of falsehood or flight
immediately following the commission of a crime . . . tend to show a person’s guilty knowledge
of, and participation in, a criminal act.” (citing Jones v. Commonwealth, 279 Va. 52, 57-58, 688
S.E.2d 269, 272 (2010))). This evidence wholly supports the trial court’s findings.
When a conviction is based on circumstantial evidence, that evidence must exclude every
reasonable hypothesis of innocence. Blow v. Commonwealth, 52 Va. App. 533, 539, 665 S.E.2d
254, 257 (2008). However, the finder of fact’s rejection of a hypothesis of innocence is “binding
on appeal unless plainly wrong.” Taylor v. Commonwealth, 61 Va. App. 13, 30, 733 S.E.2d 129,
-9- 138 (2012) (quoting Archer v. Commonwealth, 26 Va. App. 1, 12-13, 492 S.E.2d 826, 832
(1997)). The appellant’s hypothesis of innocence at trial was that he did not know that the gun
or the marijuana was in the car with him. He based this claim in part on the facts that the vehicle
was registered to another person and someone else’s identification card was in the car.7 Based
on the record, the trial court’s rejection of the appellant’s hypothesis of innocence is not plainly
wrong.
Viewing the evidence in the light most favorable to the Commonwealth, the evidence
supports the trial court’s rejection of the notion that the appellant was not aware of the firearm in
the center console or the marijuana in the center compartment. The facts of this case were
sufficient to prove beyond a reasonable doubt that the appellant had knowledge of the nature and
character of the firearm and marijuana and that they were subject to his dominion and control.
Consequently, the evidence was sufficient to support the findings of constructive possession of
the gun and the drugs.
2. Accessibility of Firearm
Pursuant to Code § 18.2-308(A), it is unlawful to carry a firearm “about [the] person,
hidden from common observation,” unless a statutory exception exists. The appellant does not
claim an exception to the statute. Instead, he contends that the Commonwealth failed to prove
that the firearm was carried about his person based on the facts of the case.
In order for a firearm to be “about the person” as contemplated by the statute, it must be
“so accessible as to afford prompt and immediate use.” See Pruitt v. Commonwealth, 274 Va.
382, 388, 650 S.E.2d 684, 687 (2007) (quoting Sutherland v. Commonwealth, 109 Va. 834, 835,
7 We note that to prove constructive possession, the Commonwealth is not required to exclude the “possibility that someone else may have planted, discarded, abandoned or placed the [contraband].” Brown v. Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992) (en banc). Additionally, the Commonwealth need not prove that the appellant’s possession of the contraband was exclusive. Smallwood, 278 Va. at 630, 688 S.E.2d at 156. - 10 - 65 S.E. 15, 15 (1909)). Whether a firearm “is upon a person or is readily accessible are largely
questions of fact that must be left to reasonable inferences drawn by the fact finder from the facts
and circumstances of the case.” Leith v. Commonwealth, 17 Va. App. 620, 621, 440 S.E.2d 152,
153 (1994).8
The appellant relies on Pruitt, 274 Va. 382, 650 S.E.2d 684, in support of his argument.
In that case, the driver put the gun in the console “as he” exited the car. Id. at 387, 650 S.E.2d at
686. The Supreme Court held that the firearm was not both concealed and about the driver’s
person for “any appreciable length of time.” Id. at 388, 650 S.E.2d at 687. In contrast to Pruitt,
the appellant reached into the compartment with the firearm, so it was clearly accessible, at the
same time as it was hidden from view. Further, he did so from when Officer Parrish first saw
him and continued accessing the console during the span of time it took for Parrish to return to
the police car and tell his partner about the odor of marijuana, and for the officers to move the
car closer to the appellant’s vehicle and then to approach the appellant on foot.
The evidence, when viewed under the proper standard, supports the trial court’s factual
determinations and conclusion that the firearm was concealed “about” the appellant’s “person.”
Officer Parrish saw the appellant rummaging in the center console of the car. He continued to
8 In 2010, the General Assembly amended Code § 18.2-308, creating an exception for “[a]ny person who may lawfully possess a firearm and is carrying a handgun while in a personal, private motor vehicle or vessel and such handgun is secured in a container or compartment in the vehicle or vessel.” 2010 Va. Acts chs. 740, 841 (adding the exception as Code § 18.2-308(B)(10); see 2013 Va. Acts ch. 746 (moving the exceptions to Subsection (C)); see also 2016 Va. Acts ch. 257 (moving the motor vehicle exception to Subsection (C)(8)). Although the amendment in part abrogated Leith, 17 Va. App. 620, 440 S.E.2d 152, the reasoning in Leith remains applicable to a case such as this one where the defendant does not claim to qualify for the exception and the facts show that he was accessing the compartment. See generally Hodges v. Commonwealth, 64 Va. App. 687, 694, 771 S.E.2d 693, 696-97 (2015) (holding that based on the amendment to Code § 18.2-308, Leith was no longer applicable to a person lawfully permitted to possess a gun who was carrying one “secured” in a vehicle glove compartment or console); Doulgerakis v. Commonwealth, 61 Va. App. 417, 422, 737 S.E.2d 40, 42 (2013) (holding that the statutory exception does not require that a container be locked in order to be “secured”). - 11 - rummage in the console until the officers confronted him. At that point, with the officers
present, he quickly got out of the car and abruptly shut the door. The police found the firearm
just beneath the closed lid of the console. Viewing the record in the light most favorable to the
Commonwealth, these facts and circumstances were sufficient to prove beyond a reasonable
doubt that for an appreciable length of time the firearm was both hidden from common view and
about the appellant’s person accessible for his use and that he was guilty of violating Code
§ 18.2-308. See generally Leith, 17 Va. App. at 622-23, 440 S.E.2d at 154 (holding that the
firearm in the locked car console was hidden about the driver’s person for purposes of Code
§ 18.2-308).
III. CONCLUSION
The trial court did not abuse its discretion in admitting the challenged testimony about the
appellant’s question and statements to the officers. Further, the evidence proved that the
appellant had constructive possession of the firearm and marijuana. Finally, the evidence proved
that the firearm was accessible for the appellant’s immediate use. Accordingly, we affirm the
appellant’s convictions for possession of marijuana, possession of a firearm by a convicted felon,
and possession of a concealed weapon.
Affirmed.
- 12 -