Derrick Lamont Colbert v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Chafin, Russell and AtLee
Argued at Richmond, Virginia
UNPUBLISHED
DERRICK LAMONT COLBERT
MEMORANDUM OPINION* BY
v. Record No. 0292-17-2 JUDGE RICHARD Y. ATLEE, JR.
FEBRUARY 20, 2018
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ORANGE COUNTY
Daniel R. Bouton, Judge
Richard T. Harry, Jr., for appellant.
Benjamin H. Katz, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Following a bench trial, a judge of the Circuit Court of Orange County (“trial court”)
found appellant Derrick Lamont Colbert guilty of carrying a concealed weapon.1 It sentenced
him to three years in prison, with all but nine months suspended. On appeal, Colbert argues that
the evidence before the trial court was insufficient to prove the weapon was on or about his
person as required by Code § 18.2-308(A). For the following reasons, we affirm.
I. BACKGROUND
When examining the sufficiency of the evidence supporting a conviction, “we view the
evidence, and all inferences reasonably drawn from it, in the light most favorable to the
Commonwealth. ‘It is our duty to affirm the trial court’s judgment unless that judgment is
plainly wrong or without evidence to support it.’” Reid v. Commonwealth, 65 Va. App. 745,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
1
Colbert was also convicted of additional crimes that are not at issue in this appeal.
753, 781 S.E.2d 373, 377 (2016) (citation omitted) (quoting Muhammad v. Commonwealth, 269
Va. 451, 536, 619 S.E.2d 16, 65 (2005)). So viewed, the evidence was that the Town of Orange
Police Department was investigating a possible extortion case. The victim reported that Colbert
had stolen her and her son’s social security cards, and was refusing to return them unless the
victim paid him. Colbert arranged a place and time to meet with the victim to exchange the
cards for payment. As part of the extortion investigation, law enforcement went to the
designated location at the agreed-upon time. They found Colbert in the rear driver’s-side seat of
a vehicle. Colbert was the only occupant of the vehicle. A search of Colbert revealed he had the
social security cards in his possession. Law enforcement arrested Colbert and put him in the rear
of the police cruiser.
After Colbert’s arrest, officers conducted a search of Colbert’s vehicle. During this
search, a canine unit alerted to a canvas bag “located next to where Mr. Colbert was seated,” or
more precisely, “[s]itting to the right side of where Mr. Colbert was sitting.” The gun was
“tucked in[to]” some clothes in the bag; the grip of the gun was protruding from a “gray sheath
like holster.”2 The top of the bag was open. Colbert admitted to law enforcement that the gun
belonged to him.
II. ANALYSIS
Colbert argues the evidence failed to show the gun was “about his person” as required by
the concealed weapons statute, Code § 18.2-308(A). To satisfy this requirement, the evidence
had to establish Colbert “actually possessed the firearm ‘on . . . his person’; or that the defendant
was aware of both the presence and character of the firearm, that the firearm was within the
accused’s dominion and control, and that the firearm was readily accessible for prompt and
immediate use.” Hunter v. Commonwealth, 56 Va. App. 50, 64-65, 690 S.E.2d 792, 799 (2010).
2
The fact that the gun was concealed is not at issue on appeal.
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Colbert reasons that because the officers did not see the bag containing the gun until after
Colbert was removed from the vehicle, and he was no longer sitting next to it at the time the
police dog alerted and the gun was discovered, the trial court erred in finding the Commonwealth
proved the gun was on or about his person. We disagree.
As a preliminary matter, the evidence clearly established that Colbert was “aware of both
the presence and character” of the gun. Id. at 64, 690 S.E.2d at 799. The grip was visible from
the top of the bag, and he was seated directly beside it in the vehicle. He was in the process of
attempted criminal extortion, so the gun’s proximity and accessibility suggest that it may have
had some contemplated purpose and utility. Finally, and most crucially, Colbert admitted the
gun belonged to him. Together, this evidence was sufficient for the trial court to conclude that
Colbert was aware of the gun’s presence and character.
The evidence was also sufficient to prove that the gun was “readily accessible for prompt
and immediate use” and was “within [Colbert]’s dominion and control.” Id. at 65, 690 S.E.2d at
799. The gun was directly beside where Colbert was seated while he was in the vehicle, and
would have been readily accessible to him. In Leith v. Commonwealth, 17 Va. App. 620, 440
S.E.2d 152 (1994),3 this Court concluded that a weapon in a vehicle’s locked center console,
which Leith had the key to, was readily accessible to him; thus, it was about Leith’s person while
he was in the driver’s seat. Here, the bag was (at furthest) in the center of the back seat of the
vehicle, directly to the right of Colbert. With its holster protruding from the top of an open bag,
3
In 2010, the General Assembly amended Code § 18.2-308, creating an exception so that
it is no longer criminal to lawfully possess a firearm that is “secured in a container or
compartment” in a “personal, private motor vehicle or vessel.” Code § 18.2-308(C)(8). This
Court has concluded that, “[f]rom the words chosen, it is clear that the General Assembly’s
intention in enacting the new exception in 2010 was to supersede Leith and similar cases.”
Hodges v. Commonwealth, 64 Va. App. 687, 696, 771 S.E.2d 693, 697 (2015). Although the
amendment abrogated Leith in part, it does not affect Leith’s vitality regarding ready
accessibility and, thus, the application of Leith to this case. See id. at 694, 771 S.E.2d at 696-97.
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it was far more accessible than the locked center console in Leith. It would have been readily
accessible to Colbert while seated beside it, and subject to his control. Even if law enforcement
did not notice the bag until after removing Colbert from the vehicle, the most, if not only,
reasonable inference is that the gun remained in the same place it was while Colbert was still in
the vehicle. Colbert’s hypothesis of innocence, that a gun — by his own admission, belonging to
him — was placed there after he was removed from the vehicle, finds no support in the record,
and was properly rejected. See Vasquez v. Commonwealth, 291 Va. 232, 250, 781 S.E.2d 920,
930 (2016) (“When examining an alternate hypothesis of innocence, the question is not whether
‘some evidence’ supports the hypothesis, but whether a rational fact[-]finder could have found
that the incriminating evidence renders the hypothesis of innocence unreasonable.”).
Moreover, regardless of where Colbert was situated at the time the gun was discovered,
he was sitting immediately next to it when the police first encountered him. A panel of this
Court addressed a similar set of facts in Johnson v. Commonwealth, No. 0877-10-3, 2010
Va. App. LEXIS 475 (Va. Ct. App. Dec. 14, 2010).4 In Johnson, “the officer saw appellant
inside the car, who was in close proximity to the concealed weapon. At that point in time, the
weapon was ‘about the person.’” Id. at *8-9. This Court explained:
The relevant inquiry is when did the offense occur, inside or
outside the vehicle? We conclude that when appellant sat in the
back seat of the vehicle, in close proximity to the concealed
weapon, the offense was complete. There are only two
explanations regarding when the gun was concealed, namely,
either before appellant exited the car, or afterwards. [An officer]
testified that when he searched the vehicle, he observed a shirt
concealing the gun. He also stated that after the four occupants
exited the car, no one returned to the vehicle. Therefore, the only
explanation is that the weapon was concealed prior to appellant
leaving the back seat.
4
“Unpublished opinions of this Court, while having no precedential value, are
nevertheless persuasive authority.” Otey v. Commonwealth, 61 Va. App. 346, 351 n.3, 735
S.E.2d 255, 258 n.3 (2012).
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Id. at *9. That is directly analogous to what took place here. Law enforcement observed Colbert
sitting directly next to the spot where the bag, containing the gun, was soon found. It is
irrelevant that Colbert was no longer next to the gun when the police found it, as the offense was
already complete. Although in Johnson, there was affirmative testimony that no one returned to
the vehicle, there were also several people in the vehicle aside from Johnson. By contrast, there
is no evidence that anyone but Colbert was in the vehicle, and there is no reason to infer that
anyone moved or placed the gun there after Colbert was removed and put in the police cruiser.
Accordingly, viewing the evidence in the light most favorable to the Commonwealth, and
drawing reasonable inferences from it, we find the evidence was sufficient to prove beyond a
reasonable doubt that Colbert was carrying a concealed weapon “about his person” in violation
of Code § 18.2-308(A).
III. CONCLUSION
The trial court did not err in finding the evidence showed the gun was on or about
Colbert’s person; therefore, it did not err in convicting him for carrying a concealed weapon.
Affirmed.
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