Reginald David Vest v. Commonwealth of Virginia ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Salem, Virginia
REGINALD DAVID VEST
MEMORANDUM OPINION * BY
v. Record No. 0803-99-3 JUDGE LARRY G. ELDER
FEBRUARY 15, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Joseph A. Sanzone (Sanzone & Baker, P.C., on
brief), for appellant.
Jeffrey S. Shapiro, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Reginald David Vest (appellant) appeals from his bench trial
convictions for possession of a firearm while in possession of a
controlled substance and possession of a firearm while possessing,
with intent to distribute, more than one pound of marijuana
pursuant to Code § 18.2-308.4, subsections (A) and (B),
respectively. 1 On appeal, he contends the evidence was
insufficient to prove he constructively possessed the firearm he
told officers was in his bedroom dresser drawer. We hold that the
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
1
Appellant also was convicted for possession of marijuana
with intent to distribute and possession of cocaine. He does
not challenge those convictions on appeal.
only reasonable hypothesis flowing from the evidence--including
the location of the weapon and appellant's statement to officers
regarding its location--is that appellant constructively possessed
the weapon. Therefore, we affirm his convictions.
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. See Martin v. Commonwealth, 4 Va. App. 438, 443, 358
S.E.2d 415, 418 (1987). The credibility of a witness, the
weight accorded the testimony, and the inferences to be drawn
from proven facts are matters solely for the fact finder's
determination. See Long v. Commonwealth, 8 Va. App. 194, 199,
379 S.E.2d 473, 476 (1989).
The possession necessary to support a conviction for the
simultaneous possession of marijuana and a firearm pursuant to
Code § 18.2-308.4 may be actual or constructive. See, e.g.,
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368
(1994) (en banc). The principles applicable to determining
whether a defendant constructively possessed drugs are equally
applicable to determining whether he constructively possessed a
firearm. See Blake v. Commonwealth, 15 Va. App. 706, 708-09,
427 S.E.2d 219, 220-21 (1993). Those principles require proof
"that the defendant was aware of both the presence and character
of the [item] and that it was subject to his dominion and
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control." Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d
739, 740 (1984).
Circumstantial evidence of possession is sufficient to
support a conviction provided it excludes every reasonable
hypothesis of innocence flowing from the evidence. See Hamilton
v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
A person's ownership or occupancy of premises on which the
subject item is found, proximity to the item, and statements or
conduct concerning the location of the item are probative
factors to be considered in determining whether the totality of
the circumstances supports a finding of possession. See Archer
v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 831-32
(1997). Possession "need not always be exclusive. The
defendant may share it with one or more." Josephs v.
Commonwealth, 10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en
banc).
The only reasonable hypothesis flowing from the evidence in
this case is that appellant was aware of the presence of the .25
caliber semiautomatic pistol located in the dresser drawer in
the bedroom he shared with his girlfriend and that it was
subject to his dominion and control. When questioned by police
regarding whether any weapons were in the house, appellant
directed them to the pistol in the dresser and accurately
reported that the pistol was loaded. Although appellant said
the pistol belonged to his girlfriend, the trial court was
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entitled to reject the statement of appellant, who led police to
a small amount of marijuana in his living room but originally
lied about the presence of an additional two pounds of marijuana
in his home. See Pugliese v. Commonwealth, 16 Va. App. 82, 92,
428 S.E.2d 16, 24 (1993). It also was entitled to reject the
testimony of appellant's girlfriend that "he never messed with
the gun," which it did expressly in finding that her testimony
was not credible. See id. The remaining evidence, including
the presence of the firearm "in [appellant's] house," coupled
with his statement to "the police [that] they could find it in
the [dresser drawer], . . . was sufficient . . . to establish
that [appellant] had knowledge of the presence of the [firearm],
and that [it] was subject to his dominion and control." Davis
v. Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922, 924-25
(1991) (upholding conviction for possession of marijuana where
accused told police they would find it in his basement, despite
presence in house of accused's wife and a friend who claimed at
trial that the marijuana belonged to him rather than the
accused) (emphasis added). The only reasonable hypothesis
flowing from the evidence is that appellant exercised at least
joint possession of the weapon.
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We hold the evidence was sufficient to prove appellant
constructively possessed the pistol, and we affirm the
challenged convictions.
Affirmed.
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