Victor Carter v. Commonwealth of Virginia ( 2000 )

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
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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
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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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