Victor Carter v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: May 2, 2000
• Docket: 0378991
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Senior Judge Hodges Argued at Chesapeake, Virginia

VICTOR CARTER MEMORANDUM OPINION * BY v. Record No. 0378-99-1 JUDGE WILLIAM H. HODGES MAY 2, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON William C. Andrews, III, Judge

Stephen K. Smith for appellant.

Steven A. Witmer, Assistant Attorney General (Mark L. Earley, Attorney General; Donald E. Jeffrey, III, Assistant Attorney General, on brief), for appellee.

Appellant was convicted of possession of cocaine, possession

of a firearm while in possession of cocaine, and possession of a

concealed weapon. On appeal, he argues that the evidence was

insufficient to support the convictions because the Commonwealth

failed to prove that he possessed the cocaine or the firearm. We

disagree and affirm.

When the sufficiency of evidence is challenged on appeal,

"'we review the evidence in the light most favorable to the

Commonwealth, granting to it all reasonable inferences fairly

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. deducible therefrom.'" Archer v. Commonwealth, 26 Va. App. 1, 11,

492 S.E.2d 826, 831 (1997) (citation omitted).

The evidence showed that Officer Dudley responded to a report

of a carjacking within one minute of receiving the dispatch. The

victim informed the officer that a firearm was used in

consummation of the theft. Ten seconds into his conversation with

the police officer, the victim identified the vehicle involved

exiting a nearby apartment complex. Dudley pursued and stopped

the automobile in which the appellant was a passenger. Dudley

handcuffed the driver of the vehicle and then handcuffed

appellant. Dudley searched the vehicle and seized a firearm that

was between the front passenger seat and door, and a bag of crack

cocaine that was on the floorboard on the passenger side. Dudley

testified that the firearm was "on its edge" and almost fell out

of the vehicle when he opened the door. Dudley also testified

that the cocaine would have been by appellant's right foot.

Appellant testified that he was intoxicated and asleep while in

the vehicle and never saw the cocaine and the firearm.

Possession of the illegal drugs may be actual or

constructive. See Logan v. Commonwealth, 19 Va. App. 437, 444,

452 S.E.2d 364, 368 (1994) (en banc).

Constructive possession may be established by "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

-2- the character of the substance and that it was subject to his dominion and control."

Id. at 444, 452 S.E.2d at 368-69 (citation omitted). Possession

need not be exclusive, but may be shared. See Josephs v.

Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en

banc).

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 occupant exercised dominion and

control over the drugs in the vehicle. See Burchette v.

Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992)

(citation omitted). The principles applicable to constructive

possession of illegal drugs also apply to constructive

possession of a firearm. See Blake v. Commonwealth, 15 Va. App.

706, 708-09, 427 S.E.2d 219, 220-21 (1993).

When Dudley stopped the vehicle, appellant was seated in

the front passenger seat and did not show signs of intoxication.

The bag of cocaine was located on the floorboard of the front

passenger seat in plain view in the area where appellant's right

foot would have been. The trial judge was entitled to reject

the testimony of appellant, a convicted felon, as incredible,

and to conclude that he was lying to conceal his guilt. The

trial judge's factual finding that the evidence showed that

appellant exercised dominion and control over the cocaine was

-3- not plainly wrong or without evidence to support it. See Brown

v. Commonwealth, 5 Va. App. 489, 491-93, 364 S.E.2d 773, 774

(1988) (finding evidence sufficient to support conviction for

possession of cocaine that was located in plain view within

arm's reach of the accused, even though others were present).

Appellant was the last person removed from the vehicle and

after he was removed, the firearm was found between the seat and

the passenger door in an upright position. The firearm almost

fell out of the vehicle when Dudley opened the door. The victim

stated that a gun was used in the carjacking, and only one

firearm was found in the vehicle. The evidence supports the

trial judge's finding that appellant placed the firearm between

the passenger seat and the door before appellant left the

vehicle. Accordingly, we affirm the convictions.

Affirmed.

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