Edward T Pitchford v. Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Hodges
Argued at Chesapeake, Virginia
EDWARD T. PITCHFORD
MEMORANDUM OPINION * BY
v. Record No. 1582-01-1 JUDGE LARRY G. ELDER
SEPTEMBER 24, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
D. Arthur Kelsey, Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on briefs), for
appellant.
Linwood T. Wells, Jr., Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Edward T. Pitchford (appellant) appeals from his bench
trial convictions for possession of cocaine with intent to
distribute, possession of a firearm while in possession of
cocaine with intent to distribute, and possession of a firearm
after having been convicted of a felony. 1 On appeal, he contends
the evidence was insufficient to prove his constructive
possession of the firearm and cocaine found in the residence.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
1
Appellant pleaded guilty to possession of hashish and
misdemeanor possession of marijuana. He does not challenge
those convictions on appeal.
We hold that appellant preserved this argument for appeal, but
we conclude the evidence was sufficient to prove appellant
resided in the house in which the firearm and cocaine were
found. Thus, we affirm the challenged convictions.
I.
PRESERVATION OF ISSUES FOR APPEAL
The Commonwealth contends appellant failed to preserve for
appeal his claim that the evidence was insufficient to prove he
constructively possessed the cocaine found inside the residence
at 103 Hawk Lane. We disagree and hold that appellant's
post-trial motion, made orally at the sentencing hearing, was
sufficient under Rule 5A:18 to preserve this issue for appeal.
In argument on appellant's post-trial motion, appellant
emphasized that "the only thing he had on him was a very small
amount of drugs," that his wife was found guilty of possessing
cocaine with intent to distribute based on her own admission,
and that no evidence proved he had access to the premises in
which the gun and larger quantity of drugs were found. The
trial court considered the motion in the context of both the
firearms convictions and the cocaine possession conviction,
noting "the law is settled that joint possession is sufficient
for the convictions of both [appellant and his wife,] . . .
[w]hich is what I held [on the charge of possession of cocaine
with intent to distribute], and likewise with the weapon." When
appellant again focused the court's attention on the lack of
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evidence that appellant had access to the residence, he did so
in the context of the firearms charges, but the court clearly
reconsidered in the context of all the charges, noting that it
had "found [appellant] guilty . . . of cocaine possession and
. . . having a weapon while being in . . . constructive
possession of cocaine."
The primary purpose of Rule 5A:18 is to give the trial
court the opportunity to correct its errors in order to avoid
unnecessary appeals and reversals. See, e.g., Robinson v.
Commonwealth, 13 Va. App. 574, 576-77, 413 S.E.2d 885, 886-87
(1992). Because the record establishes the trial court had that
opportunity here in regard to the sufficiency of the evidence to
prove constructive possession of the cocaine and firearm found
inside the residence, we hold Rule 5A:18 has been satisfied, and
we reach the merits of this issue.
II.
SUFFICIENCY OF THE EVIDENCE
Under familiar principles of appellate review, we examine
the evidence in the light most favorable to the Commonwealth,
granting to the evidence all reasonable inferences fairly
deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438,
443, 358 S.E.2d 415, 418 (1987). Circumstantial evidence is
sufficient to support a conviction provided it excludes every
reasonable hypothesis of innocence flowing from the evidence.
Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27,
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29 (1993). The only reasonable hypothesis flowing from the
evidence in this case is that appellant resided at 103 Hawk Lane
and was aware of the presence of the firearm under the mattress,
as well as the large quantity of cocaine and distribution
paraphernalia in plain view nearby, and that both the gun and
the drugs were subject to his dominion and control.
A.
APPELLANT'S RESIDENCE
Despite appellant's argument to the contrary, his counsel
stipulated, and the evidence proved, that he resided at 103 Hawk
Lane. While the officers were at 103 Hawk Lane to execute the
warrant, appellant departed his nearby place of employment and
arrived at the residence to sell a car to three men he had
arranged to meet there. When Officer Sandra Gilluly was asked
at trial to identify the location at which appellant stopped his
vehicle, she said she would have to refer to her notes.
Appellant's counsel said, "We would stipulate that it was the
defendant's -- 103 --," and Officer Gilluly then said, "103
Hawk[] Lane." The Commonwealth's attorney responded, "I'll move
along then."
Evidence in addition to this stipulation proved that 103
Hawk Lane was appellant's residence. Investigator Joseph
Coleman identified the residence as appellant's. A Virginia
Power bill found in appellant's car bore his name and the 103
Hawk Lane address, as did a W-2 Form for the immediately
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preceding tax year of 1998, which was found in the living room
of the residence during the February 5, 1999 search. Finally,
when Officer C.S. Patterson asked appellant whether they would
find any firearms in the residence, appellant responded that
"only one" firearm was in the house, that it was under the
mattress in the back bedroom, and that his wife used it "for her
protection when he was gone." Therefore, in addition to the
circumstantial evidence that appellant resided at 103 Hawk Lane,
appellant's express statement that he was aware of the number of
firearms in the house and that his wife kept a gun beneath the
mattress because he sometimes "was gone" from the residence
constituted an admission that he resided there with his wife.
The record also belies appellant's argument that the trial
court improperly shifted the burden of proof on this issue to
him. Although the court asked during appellant's post-trial
argument, "Was there any proffer made at trial that [103 Hawk
Lane] was not his residence?", the court's subsequent statements
made clear that it required the Commonwealth to prove
appellant's "guilt beyond a reasonable doubt." Noting
appellant's arrival at the residence while the officers were
there to execute the warrant, appellant's admitted awareness of
the gun beneath the mattress, 2 and "the information on the bills
2
The trial court erroneously characterized the evidence as
proving "[appellant] [had] bought [the gun] for his wife." In
fact, the evidence established only that appellant said his wife
kept the weapon beneath the mattress and that it was for her
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. . . [and] other invoice-like information suggest[ing] it was
his residence," the court said that it "[gave] every reasonable
hypothesis of innocence to [appellant]" and that "[it] just
[could not] fathom that [appellant's counsel] [did not] think
the circumstantial evidence was sufficient for a finding of
guilt beyond a reasonable doubt."
B.
CONSTRUCTIVE POSSESSION
The evidence also proved appellant was aware of the
presence and character of the cocaine and firearm in the house
and that both were subject to his dominion and control.
The possession necessary to support convictions for the
possession of cocaine pursuant to Code § 18.2-248 and the
simultaneous possession of cocaine and a firearm pursuant to
protection when he was gone; it did not establish who purchased
the weapon. However, appellant failed to bring this error to
the trial court's attention, see Rule 5A:18, and in any event,
the trial court's erroneous belief was harmless error.
As appellant conceded on brief, his supposed prior actual
possession of the firearm on an unknown date was insufficient to
prove either that he possessed the firearm after having been
convicted of a felony or that he possessed the firearm while he
possessed cocaine. Further, as discussed infra in the text, the
evidence was sufficient to prove appellant constructively
possessed the firearm on the date he told police it was beneath
the mattress. Based on the presumption that the trial court
knows and has properly applied the law to the facts, in the
absence of evidence to the contrary, see Yarborough v.
Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977), we
conclude "'beyond a reasonable doubt that the error complained
of did not contribute to the verdict obtained,'" Williams v.
Commonwealth, 32 Va. App. 395, 399, 528 S.E.2d 166, 168 (2000)
(en banc) (quoting Chapman v. California, 386 U.S. 18, 24, 87
S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967)).
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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
(en banc). Establishing constructive possession requires proof
"that the defendant was aware of both the presence and character
of the [item] and that it was subject to his dominion and
control." Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d
739, 740 (1984). 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.
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, 89, 390 S.E.2d 491, 497 (1990) (en
banc).
Appellant admitted that a firearm was located beneath the
mattress in the back bedroom. When the police searched that
bedroom, they found that firearm beneath the mattress and box
springs of a double or queen-sized bed, precisely where
appellant said it would be. The presence of the firearm "in
[appellant's] house," coupled with his statement to "the police
[that] they could find it [beneath the mattress in the back
bedroom], . . . was sufficient . . . to establish that
[appellant] had knowledge of the presence of the [firearm], and
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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) (emphasis added) (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 to the accused). Although appellant, a convicted
felon, said the weapon belonged to his wife, the trial court was
entitled to reject this statement. The only reasonable
hypothesis flowing from the remaining evidence is that appellant
exercised at least joint possession of the weapon.
The evidence also proved appellant was aware of the
presence and character of the cocaine in the house and that it
was subject to his dominion and control. The police found a
large quantity of cocaine, marijuana, scales bearing white
residue, and one-inch plastic baggies in plain view in the same
bedroom in which appellant told them they would find the
firearm. The fact that police found cocaine on appellant's
person and cocaine and marijuana in his vehicle established his
familiarity with those substances and indicated his awareness of
the nature and character of the cocaine and marijuana in plain
view in the bedroom, as well.
For these reasons, we hold the evidence was sufficient to
prove that appellant constructively possessed both the firearm
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and the cocaine in the bedroom. Thus, we affirm the challenged
convictions.
Affirmed.
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