COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Retired Judge Smith ∗ Argued by teleconference
ZACHARY BARTH HAMLETT MEMORANDUM OPINION ∗∗ BY v. Record No. 1903-02-3 JUDGE RUDOLPH BUMGARDNER, III
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY J. Samuel Johnston, Jr., Judge
Khalil A. Latif for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
During a jury trial, the trial court dismissed nine counts
of distribution of cocaine after which Zachary Barth Hamlett
pled guilty to two counts of distribution of cocaine. The trial
proceeded on the two remaining counts of possession of a firearm
while in possession of cocaine, Code § 18.2-308.4. The jury
convicted defendant of both counts. The defendant maintains the
evidence was insufficient to prove he possessed the firearms
∗ Retired Judge Charles H. Smith, Jr., took part in the consideration of this case by designation pursuant to Code § 17.1-400. ∗∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. when he possessed the cocaine and the court erred in finding him
guilty of two counts. 1 Finding no error, we affirm.
On appeal, we view the evidence and the reasonable
inferences therefrom in the light most favorable to the
Commonwealth. Commonwealth v. Taylor, 256 Va. 514, 516, 506
S.E.2d 312, 313 (1998). Around noon on June 7, 2001, Cynthia
Scott made a controlled buy of crack cocaine from the defendant
at his residence. She met the defendant in his living room.
After she asked to buy cocaine, the defendant "went down the
hallway" and returned a few minutes later with the drugs. The
same day, Barbara Jones purchased rock cocaine from the
defendant in the living room of his residence.
The police executed a search warrant for the defendant's
residence at 3:00 p.m. that day. In the defendant's bedroom at
the end of the hall, they found a loaded Intertech 9 mm gun near
the head of the bed. An open gun safe contained several
shotguns and rifles. In that room they also found crack
cocaine, marijuana, cell phones, and approximately $3,000 cash.
They recovered a gun from the defendant's shed and another one
1 Before trial, the defendant had pled guilty to drug charges including possession of a firearm while in possession of cocaine. He maintains that conviction bars his later trial for either of these charges. The record contains nothing from the earlier proceeding. With no record of the indictment, the evidence, or the final order, we do not address the argument.
- 2 - from his car. The defendant asked "if he would get his guns
back."
Beginning in 1999, Scott bought drugs from the defendant at
his residence. The defendant had displayed a handgun during
some of those drug purchases. He told her he carried a firearm
"for protection or [in case] somebody tried to stiff him."
The defendant maintains Cynthia Scott and Barbara Jones
were not credible witnesses and no direct evidence showed that
he possessed a firearm in his residence when he sold cocaine to
them. The evaluation of the credibility of any witness is a
function of the fact finder. "The fact finder, who has the
opportunity to see and hear the witnesses, has the sole
responsibility to determine their credibility, the weight to be
given their testimony, and the inferences to be drawn from
proven facts." Taylor, 256 Va. at 518, 506 S.E.2d at 314; Inge
v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567-68
(1976). Interestingly, the defendant conceded their credibility
at trial when, after they testified, he changed his plea to
guilty of distributing cocaine.
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 the character of the substance and that it
was subject to his dominion and control." Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). - 3 - Scott and Jones both testified they purchased drugs from the
defendant in his living room. When Scott asked for the cocaine,
the defendant went down the hallway, and returned with the
cocaine. Within three hours, police recovered firearms,
cocaine, marijuana, and a large amount of cash from his bedroom.
Scott had previously seen the defendant with a gun while selling
her drugs, and he had told her he carried a gun for protection
when trafficking in drugs. The jury was entitled to determine
if the witnesses were credible, and then it could reasonably
infer the defendant knowingly possessed the firearms at the same
time that he possessed and sold the cocaine. The jury could
reject the defendant's argument that the firearms recovered
during the search were not present during the earlier drug
transactions.
The defendant maintains he unlawfully received multiple
punishments because he possessed the same firearms and the same
drugs on the same day without any distinguishing incident. He
argues his firearm convictions arose out of "a single offense, a
'long transaction of illegal possession.'" If the defendant's
conduct constituted separate violations of the same offense,
then the trial court did not exceed its authority in imposing
multiple punishments. Jordan v. Commonwealth, 2 Va. App. 590,
594, 347 S.E.2d 152, 154 (1986); Stephens v. Commonwealth, 263
Va. 58, 61-63, 557 S.E.2d 227, 229-30 (2002) (affirming multiple
convictions of shooting because "separate, identifiable acts.") - 4 - In Kelsoe v. Commonwealth, 226 Va. 197, 308 S.E.2d 104
(1983), the defendant brandished the same firearm at three
people. The trial court convicted him of three violations of
Code § 18.2-282. The gravamen of the offense was the inducement
of fear in others. Id. at 199, 308 S.E.2d at 104. Therefore,
the legislature authorized multiple punishments for separate
violations, and the trial court did not err in imposing multiple
punishments.
In Jordan, 2 Va. App. at 596, 347 S.E.2d at 156, the
defendant argued that his two convictions for robbing two
individuals at the same time constituted a single robbery. This
Court held the number of people from whom property was taken
determined the "unit of prosecution" because robbery was the use
of violence against a person. Id. The legislature determined
the "unit of prosecution" and "set the penalty for separate
violations" of the same offense. Id. at 594, 347 S.E.2d at 154.
In Shears v. Commonwealth, 23 Va. App. 394, 477 S.E.2d 309
(1996), police found drugs on the defendant at a trailer and
stored in his residence. The defendant was convicted of two
counts of possession of cocaine with intent to distribute. This
Court rejected his argument that the two convictions arose from
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COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bumgardner and Retired Judge Smith ∗ Argued by teleconference
ZACHARY BARTH HAMLETT MEMORANDUM OPINION ∗∗ BY v. Record No. 1903-02-3 JUDGE RUDOLPH BUMGARDNER, III
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CAMPBELL COUNTY J. Samuel Johnston, Jr., Judge
Khalil A. Latif for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.
During a jury trial, the trial court dismissed nine counts
of distribution of cocaine after which Zachary Barth Hamlett
pled guilty to two counts of distribution of cocaine. The trial
proceeded on the two remaining counts of possession of a firearm
while in possession of cocaine, Code § 18.2-308.4. The jury
convicted defendant of both counts. The defendant maintains the
evidence was insufficient to prove he possessed the firearms
∗ Retired Judge Charles H. Smith, Jr., took part in the consideration of this case by designation pursuant to Code § 17.1-400. ∗∗ Pursuant to Code § 17.1-413, this opinion is not designated for publication. when he possessed the cocaine and the court erred in finding him
guilty of two counts. 1 Finding no error, we affirm.
On appeal, we view the evidence and the reasonable
inferences therefrom in the light most favorable to the
Commonwealth. Commonwealth v. Taylor, 256 Va. 514, 516, 506
S.E.2d 312, 313 (1998). Around noon on June 7, 2001, Cynthia
Scott made a controlled buy of crack cocaine from the defendant
at his residence. She met the defendant in his living room.
After she asked to buy cocaine, the defendant "went down the
hallway" and returned a few minutes later with the drugs. The
same day, Barbara Jones purchased rock cocaine from the
defendant in the living room of his residence.
The police executed a search warrant for the defendant's
residence at 3:00 p.m. that day. In the defendant's bedroom at
the end of the hall, they found a loaded Intertech 9 mm gun near
the head of the bed. An open gun safe contained several
shotguns and rifles. In that room they also found crack
cocaine, marijuana, cell phones, and approximately $3,000 cash.
They recovered a gun from the defendant's shed and another one
1 Before trial, the defendant had pled guilty to drug charges including possession of a firearm while in possession of cocaine. He maintains that conviction bars his later trial for either of these charges. The record contains nothing from the earlier proceeding. With no record of the indictment, the evidence, or the final order, we do not address the argument.
- 2 - from his car. The defendant asked "if he would get his guns
back."
Beginning in 1999, Scott bought drugs from the defendant at
his residence. The defendant had displayed a handgun during
some of those drug purchases. He told her he carried a firearm
"for protection or [in case] somebody tried to stiff him."
The defendant maintains Cynthia Scott and Barbara Jones
were not credible witnesses and no direct evidence showed that
he possessed a firearm in his residence when he sold cocaine to
them. The evaluation of the credibility of any witness is a
function of the fact finder. "The fact finder, who has the
opportunity to see and hear the witnesses, has the sole
responsibility to determine their credibility, the weight to be
given their testimony, and the inferences to be drawn from
proven facts." Taylor, 256 Va. at 518, 506 S.E.2d at 314; Inge
v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567-68
(1976). Interestingly, the defendant conceded their credibility
at trial when, after they testified, he changed his plea to
guilty of distributing cocaine.
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 the character of the substance and that it
was subject to his dominion and control." Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). - 3 - Scott and Jones both testified they purchased drugs from the
defendant in his living room. When Scott asked for the cocaine,
the defendant went down the hallway, and returned with the
cocaine. Within three hours, police recovered firearms,
cocaine, marijuana, and a large amount of cash from his bedroom.
Scott had previously seen the defendant with a gun while selling
her drugs, and he had told her he carried a gun for protection
when trafficking in drugs. The jury was entitled to determine
if the witnesses were credible, and then it could reasonably
infer the defendant knowingly possessed the firearms at the same
time that he possessed and sold the cocaine. The jury could
reject the defendant's argument that the firearms recovered
during the search were not present during the earlier drug
transactions.
The defendant maintains he unlawfully received multiple
punishments because he possessed the same firearms and the same
drugs on the same day without any distinguishing incident. He
argues his firearm convictions arose out of "a single offense, a
'long transaction of illegal possession.'" If the defendant's
conduct constituted separate violations of the same offense,
then the trial court did not exceed its authority in imposing
multiple punishments. Jordan v. Commonwealth, 2 Va. App. 590,
594, 347 S.E.2d 152, 154 (1986); Stephens v. Commonwealth, 263
Va. 58, 61-63, 557 S.E.2d 227, 229-30 (2002) (affirming multiple
convictions of shooting because "separate, identifiable acts.") - 4 - In Kelsoe v. Commonwealth, 226 Va. 197, 308 S.E.2d 104
(1983), the defendant brandished the same firearm at three
people. The trial court convicted him of three violations of
Code § 18.2-282. The gravamen of the offense was the inducement
of fear in others. Id. at 199, 308 S.E.2d at 104. Therefore,
the legislature authorized multiple punishments for separate
violations, and the trial court did not err in imposing multiple
punishments.
In Jordan, 2 Va. App. at 596, 347 S.E.2d at 156, the
defendant argued that his two convictions for robbing two
individuals at the same time constituted a single robbery. This
Court held the number of people from whom property was taken
determined the "unit of prosecution" because robbery was the use
of violence against a person. Id. The legislature determined
the "unit of prosecution" and "set the penalty for separate
violations" of the same offense. Id. at 594, 347 S.E.2d at 154.
In Shears v. Commonwealth, 23 Va. App. 394, 477 S.E.2d 309
(1996), police found drugs on the defendant at a trailer and
stored in his residence. The defendant was convicted of two
counts of possession of cocaine with intent to distribute. This
Court rejected his argument that the two convictions arose from
a single criminal enterprise. "The gravamen of the offense is
clearly possession of the specified drug with the requisite
intent." Id. at 401, 477 S.E.2d at 312. Each distinguishable
- 5 - possession "constitutes a 'unit of prosecution' for violation of
the statute." Id.
Code § 18.2-308.4 punishes possessing a firearm while
possessing cocaine. It states: "Violation of this section shall
constitute a separate and distinct felony;" punished separately
from "any punishment received for the commission of the primary
felony." Under the facts of this case, the gravamen of the
offense was possessing a firearm while selling cocaine. Each
separate, identifiable sale was a unit of prosecution.
The defendant sold drugs to Scott and Jones. During each
transaction, he took the order in his living room, then moved to
his bedroom where he stored the drugs and kept his guns. The
defendant obtained the quantity of cocaine ordered and returned
to the living room to complete the transfer. Each sale was a
separate and distinct event. During each sale, he had ready
access to the firearms while he retrieved the drugs he was
selling. The defendant's conduct did not constitute a single
transaction. The two sales were separate and distinguished;
they were multiple violations of the same offense and warranted
separate punishments. Accordingly, we affirm both convictions.
Affirmed.
- 6 -