Timothy Lamont Booth, Jr. v. Commonwealth of Virginia ( 2020 )

COURT OF APPEALS OF VIRGINIA
Present: Judges O’Brien, Russell and Senior Judge Clements
Argued at Richmond, Virginia
UNPUBLISHED
TIMOTHY LAMONT BOOTH, JR.
MEMORANDUM OPINION* BY
v. Record No. 0532-19-2 JUDGE MARY GRACE O’BRIEN
FEBRUARY 4, 2020
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Lynn S. Brice, Judge
C. David Sands, III (Winslow & McCurry, PLLC, on briefs),
for appellant.
Timothy J. Huffstutter, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Following a bench trial, the court convicted Timothy Lamont Booth, Jr. (“appellant”) of
possessing ammunition as a convicted felon, in violation of Code § 18.2-308.2. Appellant contends
the evidence was insufficient to prove that he constructively possessed the ammunition. We agree
and reverse appellant’s conviction.
BACKGROUND
On April 3, 2018, Chesterfield County police officers executed a search warrant on the
residence of Tekeiron Booth (“Tekeiron”). Three people were present: Tekeiron, who was on the
lease and is not related to appellant, appellant’s mother, and his brother. Appellant was not present
at the residence when police executed the warrant.
Officer Christopher D. Murphy found two plastic grocery bags on the floor of a bedroom
furnished with two beds, a nightstand, and a dresser. The bags, partially concealed under one of the
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
beds, contained .380 and .40 caliber bullets. The officer also located two boxes of .22 caliber long
rifle ammunition in the same area of the bedroom.
In addition, Officer Murphy found an empty gun holster in the nightstand, as well as a wallet
containing appellant’s 2012-13 school photo identification card and a debit card expiring in March
2019. The Commonwealth presented testimony that officers observed a bill in the bedroom with
appellant’s name on it; however, the Commonwealth did not introduce the bill itself into evidence
or any information concerning its date or address. An officer also testified about finding a paper
bag containing prescription medication bearing appellant’s name on top of the dresser. The officer
could not recall the date of the medication, which was not admitted into evidence, but testified that
“[i]t was a lot more recent than the [date] of the photo ID.”
Tekeiron told the officers that he resided in the bedroom where they found the ammunition.
He also inquired about an Xbox and a Game Station that the officers seized from the bedroom.
Appellant did not testify at trial but presented evidence from his ex-girlfriend who stated that she
and appellant “sometimes” lived together. Appellant’s girlfriend did not live at Tekeiron’s
residence. The parties stipulated that appellant was a convicted felon.
The court found it significant that appellant’s expired school identification card and valid
debit card were near the ammunition, as well as the fact that appellant’s “more recent” medication
was on top of the dresser. The court convicted appellant, and this appeal followed.
ANALYSIS
In reviewing a challenge to the sufficiency of the evidence, we afford the “highest degree of
appellate deference” to the court’s factual findings. Bowman v. Commonwealth, 290 Va. 492, 496
(2015). In accordance with this deference, we presume the court’s findings were correct, and we
will not disturb the judgment unless it was “plainly wrong or without evidence to support it.” Code
§ 8.01-680. “An appellate court does not ‘ask itself whether it believes that the evidence at the trial
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established guilt beyond a reasonable doubt.’” Williams v. Commonwealth, 278 Va. 190, 193
(2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “‘Rather, the relevant question
is,’ upon review of the evidence in the light most favorable to the prosecution, ‘whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Pijor
v. Commonwealth, 294 Va. 502, 512 (2017) (quoting Dietz v. Commonwealth, 294 Va. 123, 132
(2017)).
Code § 18.2-308.2 prohibits a convicted felon from “knowingly and intentionally
possess[ing] . . . any . . . ammunition for a firearm.” Code § 18.2-308.2(A). The Commonwealth is
not required to prove that a defendant physically possessed the ammunition; possession may be
actual or constructive. See Bolden v. Commonwealth, 275 Va. 144, 148 (2008). Constructive
possession requires “facts and circumstances proving that the defendant was aware of the presence
and character of the [contraband] and that [it] was subject to his dominion and control.” Rawls v.
Commonwealth, 272 Va. 334, 349 (2006). A court may consider “ownership or occupancy of the
premises where the [contraband] is found” as factors probative of constructive possession. Id. at
350.
This case is controlled by Cordon v. Commonwealth, 280 Va. 691 (2010). In Cordon, the
Supreme Court reversed a defendant’s conviction for constructive possession of cocaine found in a
cooler located in a bedroom. Id. at 693. The bedroom also contained checks and documents with
the defendant’s name and a business card that a police officer had given the defendant two days
earlier, when the officer was investigating a burglary at the house. Id. At that time, the defendant
advised the officer that the house belonged to his uncle, but the bedroom was his. Id. Later, when
police told him that drugs were seized from the bedroom, the defendant denied living at the house.
Id. at 694. In finding the evidence insufficient to prove the defendant exercised dominion and
control over the drugs found in the cooler, the Supreme Court noted that the cooler was “a very
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portable item.” Id. at 696. Further, the Supreme Court found it significant that the defendant was
not present when the drugs were seized and “no evidence placed [the defendant] at the house at any
time between the day [he identified the room as his] and the day the search warrant was executed.”
Id.
Similarly, here, appellant was not present when the search warrant was executed at
Tekeiron’s residence. Despite officers finding prescription medication, a valid debit card, and an
expired school identification card – each item bearing appellant’s name – in the bedroom, nothing
established that appellant was ever present in the bedroom simultaneously with the seized
contraband. See id.
Other cases also indicate that a constructive possession conviction requires sufficient
evidence of simultaneity between a defendant’s presence in the searched premises and the seized
contraband. See, e.g., Hall v. Commonwealth, 69 Va. App. 437, 448-50 (2018); Shurbaji v.
Commonwealth, 18 Va. App. 415, 424 (1994). In Hall, we found the evidence sufficient where
officers located numerous items that connected the defendant to a bedroom containing contraband,
including several pieces of mail, bills listing the address of the searched residence, titles to vehicles
naming the defendant as the owner, and medication for the defendant and her child. 69 Va. App. at
448-49. Additionally, officers saw the defendant leaving the residence on the morning the search
was executed. Id. at 448. In Shurbaji, we affirmed a conviction for constructive possession based
on evidence that the defendant paid the mortgage of the home where the contraband was found. 18
Va. App. at 424. The defendant arrived during execution of the search warrant but “turned around
and drove hurriedly away” when he noticed the police. Id. Additionally, the officers observed,
“[i]nterspersed among the cocaine and paraphernalia,” the defendant’s United States and Syrian
passports, his wallet containing credit and bank cards, personal checks signed by the defendant, and
“current personal papers and envelopes addressed to him at the searched residence.” Id.
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In this case, however, appellant was never seen at the residence, and no testimony or
documentary evidence was introduced establishing that he was ever present in the bedroom when
the ammunition was there. Further, in Cordon, the defendant’s admission and subsequent denial
concerning ownership of the bedroom gave rise to an inference that he was lying to conceal guilt.
280 Va. at 696. Nevertheless, this inference along with the remaining evidence still failed to
establish constructive possession of contraband found in the bedroom. Id. Here, appellant did not
give conflicting statements, nor any statements at all, regarding any ownership interest in the
bedroom or that he was aware of the ammunition. The ammunition was discovered in two plastic
grocery bags and two boxes which, like the cooler in Cordon, were easily portable. See id.
Although the circumstantial evidence in this case may appear suspicious, to establish
constructive possession, “[t]he evidence must rise beyond ‘the realm of probability and
supposition’” that appellant exercised dominion and control over the contraband. Hancock v.
Commonwealth, 21 Va. App. 466, 472 (1995) (quoting Hall v. Commonwealth, 225 Va. 533, 537
(1983)). Because the evidence failed to establish beyond a reasonable doubt that appellant actually
or constructively possessed the ammunition, we reverse his conviction.
Reversed and dismissed.
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