Valeton Pratt v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia
VALETON PRATT
v. Record No. 0793-94-2 MEMORANDUM OPINION * BY
JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA OCTOBER 24, 1995
FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
Charles L. McCormick, III, Judge
Buddy A. Ward, Public Defender (Robert H.
Morrison, Assistant Public Defender; Office
of the Public Defender, on brief), for
appellant.
Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General;
Robert B. Condon, Assistant Attorney General,
on brief), for appellee.
Appellant appeals his conviction for possession of a firearm
after having been previously convicted of a felony on the ground
the evidence is not sufficient to support the conviction. For
the reasons stated below, the conviction is affirmed.
On November 14, 1993, officers of the South Hill Police
Department received a dispatch to investigate a report that a man
was holding "a gun or a knife on a female in a white vehicle"
located in the parking lot of a department store.
When they arrived at the lot, the officers saw only one
occupied, white car parked there. The passenger door was open.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Pratt was holding a baby and seated in the passenger's seat while
his wife, the owner of the car, occupied the driver's seat. When
the officers approached the vehicle, Pratt closed the passenger
door. The officers approached the car and asked Pratt "to put
the baby down."
As he exited the car, Pratt held the baby and the officers
again requested that he put the baby down and "put his hands up."
Officer Harris testified, "As [Pratt exited the car], we could
see there was no weapon in his hands and [Pratt] was advised to
put his hands on the trunk of the car. He refused, cursing and
telling us to shoot him."
The officers handcuffed Pratt, but he "kept trying to get to
the female stating that he just wanted to talk to his wife."
Appellant refused to get into the police car and had to be
restrained before he was transported to police headquarters.
Sergeant Sims testified that, "as a result of a witness'
statement at the scene," he went into the vehicle and found a .25
caliber gun on "the floorboard right where the passenger's seat
would have been where [Pratt] was sitting in the vehicle." The
gun "was under the front edge of the seat directly underneath
where the passenger would be sitting."
In reviewing the sufficiency of the evidence to support a
conviction, this Court's analysis is guided by well-established
principles.
On appeal, we review the evidence in the
light most favorable to the Commonwealth,
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granting to it all reasonable inferences
fairly deducible therefrom. The judgment of
a trial court sitting without a jury is
entitled to the same weight as a jury verdict
and will not be disturbed on appeal unless it
is plainly wrong or without evidence to
support it.
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987) (citations ommitted).
We, as an appellate court, must "discard the
evidence of the accused in conflict with that
of the Commonwealth, and regard as true all
the credible evidence favorable to the
Commonwealth and all fair inferences to be
drawn therefrom." "Additionally the
credibility of witnesses and the weight to be
given their testimony are questions
exclusively within the province" of the fact
finder.
May v. Commonwealth, 3 Va. App. 348, 355-56, 349 S.E.2d 428, 432
(1986) (citations ommitted).
The same legal principles involved in the constructive
possession of controlled substances are applicable here. Blake
v. Commonwealth, 15 Va. App. 706, 708, 427 S.E.2d 219, 220-21
(1993).
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."
Peterson v. Commonwealth, 5 Va. App. 389, 402, 363 S.E.2d 440,
448 (1987) (citations omitted).
In determining whether Pratt constructively possessed
a firearm, his proximity to the firearm and his occupancy and
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ownership of the vehicle may also be considered.
Ownership or occupancy of a vehicle or of
premises . . . may be considered together
with other evidence tending to prove that the
owner or occupant exercised dominion and
control over items in the vehicle or on the
premises in order to prove that the owner or
occupant constructively possessed the [item].
Furthermore, proof that a person is in close
proximity to the [item] is a relevant fact
that, depending on the circumstances, may
tend to show that, as an owner or occupant of
property or of a vehicle, the person
necessarily knows of the presence, nature and
character of [the item] that is found there.
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 369
(1994) (en banc) (citations omitted).
The evidence in this case supports the trial court's finding
that Pratt was aware of the presence and character of the firearm
in the vehicle and that he exercised sufficient dominion and
control over it to constitute constructive possession. The car
in which the gun was found belonged to his wife. He occupied the
car with her, sitting in close proximity to the gun, in an area
which placed the gun within his immediate control. Pratt's acts,
statements and conduct, when the police arrived on the scene,
together with his wife's demeanor, clearly related to the
reported abduction incident. From the evidence, and all the
reasonable inferences to which the Commonwealth's evidence is
entitled, it cannot be said that the trial court's conclusion
that Pratt was aware of the presence and nature of the firearm
and that he had exercised dominion and control over it was, as a
matter of law, plainly wrong. See Adkins v. Commonwealth, 217
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Va. 437, 438-39, 229 S.E.2d 869, 870 (1976). Appellant's
conviction is therefore affirmed.
Affirmed.
Benton, J., dissenting.
"The Due Process Clause protects the accused against
conviction except upon proof beyond a reasonable doubt of every
fact necessary to constitute the crime with which he is charged."
In re Winship, 397 U.S. 358, 364 (1970). The Supreme Court of
Virginia has consistently held that convictions may not be based
upon speculation, surmise, or conjecture.
It is, of course, a truism of the criminal
law that evidence is not sufficient to
support a conviction if it engenders only a
suspicion or even a probability of guilt.
Conviction cannot rest upon conjecture. The
evidence must be such that it excludes every
reasonable hypothesis of innocence.
Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533
(1951). See also Hyde v. Commonwealth, 217 Va. 950, 955, 234
S.E.2d 74, 78 (1977).
These principles leave no room to doubt that in a case such
as this prosecution, where the Commonwealth relies upon
circumstantial evidence to prove guilt, the evidence must not
merely "raise a strong suspicion of guilt, . . . it [must be]
. . . wholly inconsistent with the innocence of [the]
defendant." Foster v. Commonwealth, 209 Va. 326, 330, 163 S.E.2d
601, 604 (1968). In other words, to prove beyond a reasonable
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doubt that Pratt possessed the gun, the Commonwealth was required
to exclude every reasonable hypothesis that Pratt was unaware of
the presence of the gun.
The Commonwealth has failed to "point to evidence of acts,
statements, or conduct of [Pratt] or other facts or circumstances
which tend to show that [Pratt] was aware of . . . the presence
. . . of the [gun]." Powers v. Commonwealth, 227 Va. 474, 476,
316 S.E.2d 739, 740 (1984). No evidence proved that Pratt owned
the gun, possessed the gun, or knew that the gun was under the
seat of the vehicle. Pratt's wife owned the vehicle. Proof that
the gun was under the seat in his wife's vehicle merely
established proximity, which "is not enough to establish
possession." Id.
As the Supreme Court stated in Willson v. Commonwealth, 160
Va. 913, 917, 168 S.E. 344, 345 (1933), and as pertinent to this
case, "[i]f all of the testimony introduced by the Commonwealth
is believed and all the reasonable inferences deduced therefrom
are properly considered and allowed against the accused and if
all of the testimony introduced in his behalf is discarded, the
fact still remains that his guilt, as a matter of law, has not
been proven beyond a reasonable doubt." For these reasons, I
would reverse the conviction.
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