Bernard E. Samuels, etc v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judge Annunziata and
Senior Judge Hodges
Argued at Richmond, Virginia
BERNARD E. SAMUELS, S/K/A
BERNARD EVERETT SAMUELS
v. Record No. 1364-94-2 MEMORANDUM OPINION * BY
JUDGE WILLIAM H. HODGES
COMMONWEALTH OF VIRGINIA AUGUST 1, 1995
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge
Cary B. Bowen (Bowen and Bowen, on brief), for
appellant.
Marla Lynn Graff, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
In a bench trial, appellant was convicted of simultaneously
possessing cocaine and a firearm in violation of Code
§ 18.2-308.4. On appeal, he argues that the evidence was
insufficient to support his conviction. We disagree and affirm.
"On appeal, we review the evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible therefrom." Martin v. Commonwealth,
4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987).
On January 15, 1994, the police executed a search warrant at
appellant's residence. Appellant was in the living room at the
time. In appellant's pocket, the police found a folded one
dollar bill and a tied plastic bag corner, both of which
contained cocaine. A smoking device and a bag containing cocaine
*
Pursuant to Code § 17-116.010, this opinion is not
designated for publication.
were on the floor near appellant. Also near appellant on the
floor was a nine millimeter firearm.
After the police arrested appellant and informed him he was
being charged with possessing cocaine and the firearm, appellant
said, "I have a gun; but that's not -- that one there is not
mine. . . . [T]he shotgun -- the long shotgun in the closet is
mine." The police recovered a shotgun from the closet in one of
the bedrooms down the hallway from the living room.
At trial, the Commonwealth proceeded under the theory that
appellant possessed the shotgun, not the nine millimeter firearm
found near him. Appellant concedes that he owned the shotgun and
that he possessed cocaine. 1 He argues, however, that the
Commonwealth did not show that he knowingly and simultaneously
possessed the shotgun and the cocaine as contemplated by Code
§ 18.2-308.4.
Pursuant to Code § 18.2-308.4, any person who unlawfully
possesses cocaine and "simultaneously with knowledge and intent
possesses any firearm" is guilty of a felony. We found in
Jefferson v. Commonwealth, 14 Va. App. 77, 80, 414 S.E.2d 860,
862 (1992), that "actual possession of both the firearm and the
controlled substance is not required by the wording of Code
§ 18.2-308.4. Constructive possession of either or both is
sufficient for conviction." Moreover, to sustain a conviction
1
Appellant, in fact, entered a guilty plea upon a charge of
cocaine possession arising from the same facts. His subsequent
conviction of the offense has not been challenged on appeal.
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under Code § 18.2-308.4, "[t]he Commonwealth need not prove that
[the defendant] had ready access to either the gun or the cocaine
to establish 'simultaneous possession.'" Jefferson, 14 Va. App.
at 81, 414 S.E.2d at 862.
As appellant concedes, the evidence proved that he possessed
cocaine when the police searched his home. Thus, to sustain
appellant's conviction, the Commonwealth need only have proven
that appellant simultaneously had constructive possession of the
shotgun in the closet.
"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.'" Logan v.
Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368-69 (1994)
(en banc) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316
S.E.2d 739, 740 (1984)). In determining whether constructive
possession of an item has been established, the ownership of the
premises where the item was found is a factor "that may be
considered together with other evidence tending to prove that the
owner . . . exercised dominion and control over" the item.
Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,
83 (1992).
Appellant was present when the police conducted the search
of his home. Appellant denied ownership of the firearm found
near him, but told the police he owned the shotgun in the closet.
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This statement revealed not only that appellant knew generally
of the presence of firearms in his house, but also that he knew
where his own firearm was located at that particular moment. The
police found the shotgun in a bedroom closet, just down the
hallway from appellant and as he described. From this evidence,
the trial judge could have concluded beyond a reasonable doubt
that appellant was aware of the presence and character of the
firearm, that it was subject to his dominion and control, and
that he constructively possessed it at a time when he also
possessed cocaine. See Davis v. Commonwealth, 12 Va. App. 728,
733, 406 S.E.2d 922, 924-25 (1991) (evidence sufficient to
support finding of constructive possession of marijuana where
defendant told police officers searching his house that marijuana
was in the basement, and officers found marijuana there).
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
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