Jamie Allen Seamster v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Russell, AtLee and Senior Judge Haley
Argued by videoconference
JAMIE ALLEN SEAMSTER
MEMORANDUM OPINION* BY
v. Record No. 1193-19-2 JUDGE JAMES. W. HALEY, JR.
JULY 13, 2021
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
Kimberley S. White, Judge
Heath L. Sabin (Sabin Law Office, P.C., on brief), for appellant.
Timothy J. Huffstutter, Assistant Attorney General (Mark R.
Herring, Attorney General, on brief), for appellee.
Following a bench trial, the trial court convicted Jamie Allen Seamster of receiving or
buying stolen goods, possession of a firearm after having been convicted of a felony, obtaining
money by false pretenses, selling stolen property valued at under $200, possession of
ammunition for a firearm after having been convicted of a felony, possession of a firearm while
possessing a Schedule II controlled substance, and possession of cocaine. On appeal, Seamster
argues that the trial court erred in convicting him of both possession of a firearm by a felon and
possession of ammunition by a felon in violation of the double jeopardy clause where the two
charges “arose out of the same occurrence, and factual pattern, and were not separate incidents of
possession.” He also argues that the trial court erred in finding the evidence sufficient to convict
him of possession of a firearm by a felon “and/or” possession of ammunition by a felon where he
did not have possession, either actual or constructive, of any
firearm or ammunition, had no knowledge of a firearm and/or
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
ammunition being on the premises, and another person was person
[sic]; and not all of firearms recovered were testified to have been
designed to expel a projectile by means of an explosion.
Finally, Seamster contends that the trial court erred in finding that the evidence was
sufficient to prove that he possessed a firearm while in possession of a Schedule I or II controlled
substance “when the evidence did not establish that [he] was in possession of a controlled
substance and did not establish[] that he possessed a firearm.” Finding that the convictions for
both possession of a firearm after having been convicted of a felony and possession of
ammunition after having been convicted of a felony violate the double jeopardy clause, we
reverse and remand the case to the trial court for reconsideration of the convictions and sentences
for possession of a firearm and possession of ammunition in a manner consistent with this
opinion. See Groffel v. Commonwealth, 70 Va. App. 681, 685 (2019), aff’d, 299 Va. 271(2020). Because on remand, the Commonwealth must elect one conviction and sentence for
Seamster’s violation of Code § 18.2-308.2, for the reasons stated below, we consider the
sufficiency of the evidence and find that the evidence was sufficient to support both convictions.
We also find that the evidence was sufficient to prove that Seamster possessed a firearm while in
possession of cocaine.
Background
“In accordance with familiar principles of appellate review, the facts will be stated in the
light most favorable to the Commonwealth, the prevailing party at trial.” McGowan v.
Commonwealth, 72 Va. App. 513, 516 (2020) (quoting Gerald v. Commonwealth, 295 Va. 469,
472 (2018)). “In doing so, we discard any of appellant’s conflicting evidence, and regard as true
all credible evidence favorable to the Commonwealth and all inferences that may reasonably be
drawn from that evidence.” Id. (quoting Gerald, 295 Va. at 473).
-2-
In October and November 2017, Lawrence Bradshaw (Lawrence) was staying
temporarily at a rehabilitation facility. While he was there, his daughters, Scottie Bradshaw
(Scottie) and Kelly Bradshaw (Kelly) maintained their father’s house in South Boston. On
November 2, 2017, the family saw that a basement window was broken at the house, and a small
oil lamp was near the window. Scottie and Kelly walked through the house with Halifax County
Sheriff’s Investigator Sam Edmonds. They pointed out items that were missing from the house,
including bank bags containing paper money, coins, and “old money” Lawrence’s grandfather
had given him. Also missing were Crown Royal Bags containing coins, a television, a small
“saloon gun,” and five rifles — three “30/30” Winchester rifles, one .22 Winchester rifle, and a
.22 caliber Henry rifle. Three of the Winchester rifles were commemorative. In addition, an
“[H]ombre” six-shooter pistol was taken. Further, a National Rifle Association (NRA)
backpack, assorted jewelry — including watches, rings, necklaces, and bracelets — collectible
swords, and .22 caliber ammunition were missing. Scottie and Kelly testified that no one else
had permission to enter the house or remove any items from the residence. Scottie stated that she
knew Seamster and he dated her former good friend, Karen Conner.
Edmonds learned that someone had used “old money” for a purchase at a gas station. On
November 3, 2017, he reviewed the surveillance video from the gas station and recognized
Seamster as the person who passed the old currency. Edmonds also identified Seamster’s
vehicle in the video. Seamster had left a business card at the gas station that Edmonds
recognized as a business associated with Seamster. Edmonds obtained the old currency from the
gas station and showed it to Lawrence, who stated that it looked like money that was in his
collection. Edmonds also determined that on October 31, 2017, Seamster had pawned a gold
bracelet with a charm or medallion at a local pawn shop. Edmonds confiscated the items, which
Lawrence identified as belonging to him.
-3-
On November 9, 2017, at 7:24 a.m., Edmonds and other officers executed a search
warrant at Seamster’s residence. At the time of the search, Chris Anderson (Chris), Seamster’s
cousin, was in the basement of the residence. Edmonds told Seamster that a house in the county
had been burglarized, and he determined that Seamster had passed currency that was consistent
with some of the money stolen in the burglary. He also told Seamster that he recovered some of
the burglary victim’s stolen jewelry that Seamster had pawned. Edmonds advised Seamster that
they were searching for stolen items, some of which were as small as a buffalo nickel and
included weapons. He asked Seamster if he could direct them to any stolen or possibly stolen
items in his house. Edmonds testified that Seamster cooperated and identified “things that he
believed possibly could have been what [they] w[ere] looking for.”
Seamster first directed Edmonds to a bag labeled “NRA” that was on the living room
floor, which Seamster said Chris had brought to the residence and could “possibly” have been
stolen. The NRA bag contained a small revolver pistol that matched the description of one of the
firearms that Lawrence had reported as stolen and Crown Royal bags containing old coins.
Edmonds told Seamster that the items were similar to some of the stolen items and asked
Seamster if there was anything else in the house that was possibly stolen. Seamster led Edmonds
to a guest bedroom closet and pointed to a blanket wrapped in tape and told Edmonds that there
were “weapons inside that blanket.”1 Edmonds also saw in plain view in the closet another rifle
beside the blanket, and a sword. Inside the blanket were commemorative rifles that belonged to
Lawrence and some loose ammunition. In a subsequent interview, Seamster told Edmonds that
he had helped wrap the rifles in the blanket.
1
On cross-examination, when asked if Seamster said weapons were “actually inside” the
blanket, Edmonds testified that if he “recalled correctly,” Seamster indicated that he “knew
weapons were in that blanket,” and he “helped wrap . . . that blanket up.” Edmonds also stated
that he “could be wrong” and “could have forgotten.”
-4-
Seamster led Edmonds to what he identified as his bedroom. There, he told Edmonds
that a weapon was inside his dresser that “possibly could have been stolen.” In the second
dresser drawer, Edmonds found a loaded SCCY Cobra .380 caliber pistol and a small gun that
Lawrence later identified as his “saloon gun,” that was smaller than a Derringer. An expert in
the operation of firearms and ammunition testified that the .380 Cobra handgun was operable and
capable of creating an explosion and expelling a projectile out of the end of the barrel.2 Seamster
claimed that the .380 handgun belonged to Chris but told Edmonds that he knew it was in his
dresser drawer. Seamster did not indicate that he knew about the presence of the saloon gun in
the drawer.
When Edmonds stated that he was also looking for jewelry, Seamster invoked his
Miranda3 rights, and officers arrested him and removed him from the property. The officers
continued to search Seamster’s house, and under his bed they found two safes. Next to the bed
was a set of keys that opened one safe. This safe contained Seamster’s social security card, birth
certificate, and a Crown Royal bag with jewelry that Lawrence later identified as belonging to
him. Edmonds found a gun box containing ammunition on an “end table” in Seamster’s
bedroom.4
In the kitchen, officers found two driver’s licenses, one of which was voided, containing
Seamster’s name, his address, and business cards like the one Seamster had left at the gas station.
2
This expert also examined .22 caliber rifles, several “pre-1958” 30-30 caliber rifles,
30-30 ammunition, and .22 long rifle ammunition recovered in the case. He stated that 30-30
rifles operated by putting a round into a magazine along the bottom of the barrel, and racking the
lever, thereby loading a round and expelling an empty cartridge. He also testified that the 30-30
ammunition contained primer that sparked when the firing pin struck it, creating combustion, and
expelling a projectile.
3
See Miranda v. Arizona, 384 U.S. 436 (1966).
4
Officers found other items in Seamster’s bedroom that Lawrence identified as his.
-5-
The voided driver’s license was the one Seamster had provided to complete the pawn transaction
on October 31, 2017.
A few days after the search of his home, Seamster asked to speak with law enforcement.
During his interview with Edmonds, Seamster claimed that Chris stayed at his house “off and
on,” and Chris also sometimes stayed at the “bullpen” near an auto mechanic shop. Seamster
told Edmonds that Chris gave him “all of the things that [officers] found in his house,” and “they
had brought them from the bullpen over to his house.” Seamster stated that he asked Chris
where the items came from and Chris said he “had hit a lick” or had “done a lick,” meaning that
he had broken into a house. Seamster denied that he broke into Lawrence’s house, but he
admitted that he helped Chris move items from the bullpen to his house. Seamster also told
Edmonds that Chis owed him money and paid Seamster in “old currency,” and he bought some
old currency from Chris.
Chris told Edmonds that he did not break into Lawrence’s house or move anything into
Seamster’s house. He claimed that he happened to be at Seamster’s house on the date of the
search.
Based on items seen during the search of Seamster’s house, Halifax County Sheriff’s
Sergeant Thomas Lewis, a special officer with the Virginia State Police assigned to the South
Boston Regional Narcotic and Gang Task Force, obtained a search warrant for marijuana,
cocaine, drug paraphernalia, packaging materials, and items “used to conceal drug activity.”
Lewis found suspected marijuana and scales on the kitchen counter in the house. He also found
a baggie of suspected cocaine in the kitchen trash can. The dishwasher contained smoking
devices, straws, and different items that appeared to be used for marijuana smoking. In the
microwave located on the kitchen counter, Lewis found a plate with suspected cocaine residue, a
cigarette pack containing a bag of cocaine, a straw, a $1 bill, and a credit card in Seamster’s
-6-
name. Lewis testified that dollar bills are sometimes used as a straw to sniff cocaine and the
credit card could be used to cut the cocaine. Laboratory analysis showed that the cigarette pack
contained 0.7984 gram of cocaine.
Seamster, a convicted felon, testified in his defense and admitted that he sold the jewelry
at the pawn shop, claiming that Chris gave him the jewelry because Chris owed him money.
Seamster stated that in October 2017, Chris had been staying at his house for three or four
months, but Chris was also sometimes living at the “bullpen” where he worked. According to
Seamster, Chris often brought “stuff” in and out of his house as he moved around. Seamster
denied helping Chris move anything, stating that Chris put items in Seamster’s truck and
Seamster drove the truck to his house.
Seamster also testified that he had “never seen any guns in the closet” although he had
“seen a sword in the closet.” He claimed that he did not help Chris wrap the rifles in the blanket
and denied telling Edmonds that he had done so. Seamster testified that he told Edmonds he did
not see any guns in the house and Edmonds tried to “trick” him into admitting that there were
guns in his home. Seamster denied that he knew the gun was in the dresser drawer or that he told
Edmonds there was a gun in his bedroom. He testified that officers went into the room, exited it
with the gun, and asked him, “What is this?” Seamster stated that he told the officers the gun
belonged to Chris, and he had “seen it before,” but had never seen it in his house. Seamster also
claimed that Chris liked to hide things.
Seamster stated that he saw Chris with “some coins and stuff,” and he asked Chris where
he got the items. He testified that Chris replied that he had “hit a lick,” but Seamster believed
Chris was joking because he had seen old coins and money at Chris’s mother’s house where
Chris once lived. Seamster also stated that Chris gave him the “old” money that he spent at the
gas station. Seamster testified that he had no idea that the items he directed Edmonds to during
-7-
the search or the jewelry he pawned belonged to Lawrence. He claimed that he did not have a
credit card and denied any knowledge of the items found in the microwave. Seamster admitted
that he put “some weed bowls and some weed” in the dishwasher but denied any knowledge of
the cocaine.
On cross-examination, Seamster testified that he sometimes stayed with his girlfriend at
another residence and Chris slept in Seamster’s bedroom at his house. He acknowledged that
this house was his main residence where he received his mail and kept his dogs and other items
such as his safes and forms of identification.
Conner, Seamster’s girlfriend of almost ten years, testified that Seamster sometimes
stayed with her at her residence and that Chris was staying at Seamster’s house around the time
of October and November 2017. She testified that Seamster had owned his house for about four
years. Conner stated that on November 6, 2017, she saw Chris hooking up a “big” flat screen
television that looked “brand new.” Conner also testified that Chris collected “old currency.”
Kathy Spangler, Chris’s mother, and Jennifer Anderson Moore, Chris’s sister, both
testified that Chris does not collect coins or old currency. Moore also stated that she had never
seen Chris with a firearm.
The trial court expressly found Seamster’s trial testimony incredible, noting it was not
corroborated by other evidence in the case. Further, the trial court credited Edmonds’s testimony
concerning the statements Seamster made implicating himself in the case. The trial court also
noted that when Edmonds told Seamster he had the search warrant and asked Seamster if he
wanted to show him anything, appellant pointed out the NRA bag, which contained a firearm, the
guest room closet containing firearms, and his dresser where firearms were located. Officers
found the safe under Seamster’s bed containing Seamster’s identifying documents and some of
-8-
Lawrence’s jewelry. The trial court found appellant guilty of all the charges. Seamster appeals
the case to this Court.
Double Jeopardy
The Commonwealth concedes that Seamster may not be convicted of both possession of
a firearm by a convicted felon and possession of ammunition by a convicted felon, stemming
from the same instance of possession, pursuant to Groffel. Under settled principles, an appellate
court may not accept even formal concessions of law without independently confirming their
correctness. Logan v. Commonwealth, 47 Va. App. 168, 172 (2005) (en banc).
“We review de novo whether ‘multiple punishments have been imposed for the same
offense in violation of the double jeopardy clause.’” Groffel, 70 Va. App. at 687 (quoting
Commonwealth v. Gregg, 295 Va. 293, 298 (2018)). In Groffel, the defendant, who had a prior
felony conviction, possessed a cabinet containing “an AK-47 assault rifle,” a shotgun,
ammunition for the two firearms, and ammunition for a “30-30 rifle.” Id. at 685. The trial court
convicted him of two counts of possessing a firearm or ammunition after conviction for a felony,
noting that the “separate charge for possession of ammunition was based on ammunition that did
not match the types of firearms found with it.” Id. at 686. This Court concluded that the trial
court erred in imposing separate convictions for possession of a firearm and possession of
ammunition, holding that “Code § 18.2-308.2 does not separately penalize the appellant’s
possession of firearms and ammunition at the same time in the shed.” Id. at 694. Further,
merely because “some of the ammunition in the appellant’s possession did not pair with the
firearms found with it does not justify separate convictions for simultaneous possession under
the statute[.]” Id. at 695. We held that “the appellant should have been subject to only one
punishment under Code § 18.2-308.2 for the firearms and ammunition[.]” Id.
-9-
Here, the Commonwealth charged Seamster with possession of a firearm by a convicted
felon and possession of ammunition by a convicted felon. The evidence showed that during the
search, officers found in Seamster’s residence multiple firearms and ammunition in several
locations. As in Groffel, we hold that the trial court erred in imposing both convictions and
sentences for each under Code § 18.2-308.2 for simultaneous possession of a firearm and
possession of ammunition because doing so is a violation of the double jeopardy clause. See id.
Consequently, we reverse and remand this case to the trial court to allow the Commonwealth to
elect one conviction and sentence for the violation of Code § 18.2-308.2. See id.
Sufficiency of the Evidence
Because upon remand, the Commonwealth must elect one conviction and sentence for
Seamster’s violation of Code § 18.2-308.2, we consider his assignments of error challenging the
sufficiency of the evidence for those convictions. We also address his argument that the
evidence failed to prove that he possessed a firearm simultaneously with cocaine.
“When reviewing the sufficiency of the evidence, ‘[t]he judgment of the trial court is
presumed correct and will not be disturbed unless it is plainly wrong or without evidence to
support it.’” Yoder v. Commonwealth, 298 Va. 180, 181-82 (2019) (quoting Smith v.
Commonwealth, 296 Va. 450, 460 (2018)). “In such cases, ‘[t]he Court does not ask itself
whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’”
Secret v. Commonwealth, 296 Va. 204, 228 (2018) (quoting Pijor v. Commonwealth, 294 Va.
502, 512 (2017)). “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.” Id. (quoting Pijor, 294 Va. at 512). “If there
is evidentiary support for the conviction, ‘the reviewing court is not permitted to substitute its
own judgment, even if its opinion might differ from the conclusions reached by the finder of fact
- 10 -
at the trial.’” Chavez v. Commonwealth, 69 Va. App. 149, 161 (2018) (quoting Banks v.
Commonwealth, 67 Va. App. 273, 288 (2017)).
“It shall be unlawful for . . . any person who has been convicted of a felony . . . to
knowingly and intentionally possess or transport any firearm or ammunition for a firearm[.]”
Code § 18.2-308.2(A).
Seamster argues that no evidence showed he was aware of the gun in the NRA bag; there
was reasonable doubt as to whether he knew of the nature and character of the firearms or
ammunition found in the blanket; the weapon that was in plain sight in the closet was not
determined to have been designed, made, and intended to expel a projectile by means of an
explosion; and the evidence failed to show he knew that the .380 pistol and saloon gun were in
the dresser drawer. He further contends that the evidence failed to establish that he knew of the
weapons or ammunition on the premises. Seamster asserts that even assuming he knew the
firearms and ammunition were at his residence, “[h]e did not exercise dominion and control”
over them.
“The sufficiency ‘inquiry does not distinguish between direct and circumstantial
evidence, as the fact finder . . . “is entitled to consider all of the evidence, without distinction, in
reaching its determination.”’” Rams v. Commonwealth, 70 Va. App. 12, 27 (2019) (quoting
Commonwealth v. Moseley, 293 Va. 455, 463 (2017)). “When circumstantial evidence is
involved, the evidence as a whole must be ‘sufficiently convincing to exclude every reasonable
hypothesis except that of guilt.’” Id. (quoting Dowden v. Commonwealth, 260 Va. 459, 468
(2000)).
“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 the character of the [firearm] and that it was subject to his dominion and
- 11 -
control.’” Hall v. Commonwealth, 69 Va. App. 437, 448 (2018) (quoting Logan v.
Commonwealth, 19 Va. App. 437, 444 (1994) (en banc)). “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.” Id. (quoting Wright v.
Commonwealth, 53 Va. App. 266, 274 (2009)). “Possession and not ownership is the vital issue.
Possession may be joint or several. Two or more persons may be in possession where each has
the power of control and intends to exercise control jointly.” Atkins v. Commonwealth, 57
Va. App. 2, 23 (2010) (quoting Burnette v. Commonwealth, 194 Va. 785, 792 (1953)).
“Ultimately, ‘the issue [of what constitutes constructive possession] is largely a factual one’ left
to the trier of fact, not the appellate court.” Bagley v. Commonwealth, 73 Va. App. 1, 28 (2021).
Here, the evidence showed that the firearms and ammunition were found in Seamster’s
residence. He testified that the house was where he received his mail and kept his dogs, safes,
and items of identification. Seamster’s girlfriend acknowledged that although Seamster
sometimes stayed with her at her residence, the house where the firearms and ammunition were
located had been Seamster’s residence for about four years. In addition, when Seamster led
Edmonds around the house, he identified one of the bedrooms as his own bedroom. Under the
bed in Seamster’s bedroom, officers found the safe containing Seamster’s birth certificate, social
security card, and some of Lawrence’s stolen jewelry. The keys to this safe were next to the bed.
See Shears v. Commonwealth, 23 Va. App. 394, 402-03 (1996) (evidence of personal documents
in same room as drugs and firearms is a circumstance to consider in finding constructive
possession of drugs).
Edmonds told Seamster that they were looking for stolen items, including weapons, and
he asked Seamster if he could direct them to any stolen or possibly stolen items in the house.
- 12 -
Seamster then pointed to the NRA bag on the living room floor, stating that it could possibly be
stolen. A small revolver pistol consistent with one of the guns Lawrence reported as stolen was
inside the bag. Seamster then led Edmonds to the guest bedroom closet and pointed to the
blanket wrapped in tape. Edmonds testified that Seamster told him there were “weapons” inside
the blanket and that he had helped wrap them in the blanket. Although at trial, Seamster denied
admitting that he knew the firearms were in the blanket or that he helped wrap them inside the
blanket, the trial court expressly credited Edmonds’s testimony concerning Seamster’s
incriminating statements. “When ‘credibility issues have been resolved by the [fact finder] in
favor of the Commonwealth, those findings will not be disturbed on appeal unless plainly
wrong.’” Towler v. Commonwealth, 59 Va. App. 284, 291 (2011) (quoting Corvin v.
Commonwealth, 13 Va. App. 296, 299 (1991)). “The fact finder, who has the opportunity to see
and hear the witnesses, has the sole responsibility to determine their credibility, the weight to be
given their testimony, and the inferences to be drawn from proven facts.” Rams, 70 Va. App. at
26-27 (quoting Hamilton v. Commonwealth, 279 Va. 94, 105 (2010)).
The blanket contained four rifles and loose ammunition. A rifle was also in plain view in
the same closet.5 Considering that, in response to Edmonds’s statement that he was looking for
weapons and stolen items, Seamster pointed to the NRA bag containing a firearm and led
Edmonds to the location of the firearms in the blanket, later stating that he had helped wrap the
rifles in the blanket, the trial court could conclude that appellant was aware of the presence and
5
Seamster argues that the evidence failed to show that the rifle in plain view in the closet
was designed, made, and intended to expel a projectile by means of an explosion. However,
even assuming that this argument is correct, it is of no consequence because the evidence showed
that Seamster constructively possessed numerous other firearms in the case. “As we have often
said, ‘the doctrine of judicial restraint dictates that we decide cases “on the best and narrowest
grounds available.”’” Butcher v. Commonwealth, 298 Va. 392, 396 (2020) (quoting
Commonwealth v. White, 293 Va. 411, 419 (2017) (alteration omitted)).
- 13 -
character of these firearms and the ammunition in the blanket, and they were subject to his
dominion and control.
Seamster argues that the evidence failed to prove he had knowledge of the .380 pistol and
saloon gun found in the dresser drawer of his bedroom. Not only did Seamster identify this
bedroom as his own bedroom, he led Edmonds to the bedroom, pointed to the dresser, and
indicated that there was a weapon inside the dresser that “possibly could have been stolen.”
Clearly, Seamster’s statement and his conduct in directing Edmonds to the dresser showed that
Seamster was aware of the presence and character of the firearms found in the dresser drawer.
Further, when Edmonds recovered the loaded .380 pistol, Seamster claimed that the gun
belonged to Chris, indicating that he was aware of the nature and character of the gun.
Possession may be joint and several and it mattered not whether Chris was the gun’s owner. See
Atkins, 57 Va. App. at 23. Seamster still could have jointly possessed a gun owned by Chris that
Seamster knew was in his dresser drawer.
Although Seamster denied having any knowledge of the saloon gun, the trial court found
that Seamster’s trial testimony was incredible. “In its role of judging witness credibility, the fact
finder is entitled to disbelieve the self-serving testimony of the accused and to conclude that the
accused is lying to conceal his guilt.” Speller v. Commonwealth, 69 Va. App. 378, 388 (2018).
Further, Lawrence identified the recovered saloon gun as one of his stolen firearms. Officers
also found in Seamster’s bedroom a box of ammunition on an end table. From the evidence of
appellant’s conduct and statements, the trial court could conclude that Seamster was aware of the
nature and character of the firearms in the dresser drawer and the box of ammunition in his
bedroom.6 The Commonwealth’s evidence was competent, was not inherently incredible, and
6
Seamster argues that the evidence failed to prove he exercised dominion and control
over the ammunition and firearms located in his bedroom. However, at oral argument, he
- 14 -
was sufficient to prove beyond a reasonable doubt that appellant was guilty of possession of a
firearm or possession of ammunition after having been convicted of a felony.
“It shall be unlawful for any person unlawfully in possession of [cocaine] . . . to
simultaneously with knowledge and intent possess any firearm.” Code § 18.2-308.4(A).
Seamster concedes that this Court held in a one-judge order that the evidence was sufficient to
prove that he possessed cocaine on the date of the search.7 Officers found the cocaine in the
kitchen on the same date that they located the firearms in Seamster’s residence. As addressed
above, the evidence was sufficient to prove that Seamster possessed the firearms. Therefore, the
evidence was sufficient to prove that he possessed cocaine simultaneously with his possession of
the firearms. Although Seamster asserts that the cocaine was found in a “separate room” from
the firearms, the fact that the cocaine was recovered in the kitchen and the firearms were found
elsewhere in the house is of no moment because the Commonwealth was required to prove only
simultaneous possession of both the cocaine and firearms. Cf. Jefferson v. Commonwealth, 14
Va. App. 77, 80-81 (1992) (“The Commonwealth need not prove that [appellant] had ready
access to either the gun or the [drugs] to establish ‘simultaneous possession.’”).
Conclusion
For the foregoing reasons, we hold that the evidence was sufficient to prove that
Seamster possessed a firearm in violation of Code § 18.2-308.2 and possessed ammunition in
conceded that he had dominion and control over the items found in his bedroom. Therefore, this
argument is of no moment.
7
On December 15, 2020, in a one-judge order, the Court granted the three assignments of
error addressed herein and denied Seamster’s assignment of error contending that the evidence
was insufficient to prove that he possessed cocaine. Seamster v. Commonwealth, No. 1193-19-2
(Va. Ct. App. Dec. 15, 2020). Seamster sought a three-judge review of the denied possession of
cocaine assignment of error, and a three-judge panel of this Court affirmed the conviction for
that charge for the reasons stated in the December 15, 2020 order. Seamster v. Commonwealth,
No. 1193-20-2 (Va. Ct. App. Feb. 5, 2021).
- 15 -
violation of this statute. However, the trial court erred in imposing two sentences under Code
§ 18.2-308.2 for simultaneous possession of a firearm and ammunition. Accordingly, we remand
this case to the trial court to allow the Commonwealth to elect one conviction and sentence for
Seamster’s violation of Code § 18.2-308.2. See Groffel, 70 Va. App. at 695-96. See also
Andrews v. Commonwealth, 280 Va. 231, 288 (2010) (“In a typical case where a defendant has
been subject to impermissible multiple punishments, ‘the only remedy consistent with [the
legislature’s] intent is for the [trial court], where the sentencing responsibility resides, . . . to
vacate one of the underlying convictions.’” (first and second alterations in original) (quoting Ball
v. United States, 470 U.S. 856, 864 (1985))). Cf. Gregg, 295 Va. at 301 (holding that
convictions for involuntary manslaughter under Code § 18.2-154 and common law involuntary
manslaughter violated the double jeopardy clause, and, on remand, the Commonwealth must
elect between the two sentences then, following election, the trial court shall vacate the other
sentence). “Thereafter, the [trial] court shall vacate the other conviction and sentence under”
Code § 18.2-308.2. Groffel, 70 Va. App. at 696; see Gregg, 295 Va. at 301.
Affirmed in part and reversed and remanded in part.
- 16 -