Blake v. Com., 1551-91-1

• Decision Date: 16 February 1993
• Docket Number: No. 1551-91-1,1551-91-1
• Citation: 427 S.E.2d 219,15 Va.App. 706
• Parties: Robert Marshall BLAKE v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 219

427 S.E.2d 219

15 Va.App. 706

Robert Marshall BLAKE v. COMMONWEALTH of Virginia.

Record No. 1551-91-1.

Court of Appeals of Virginia.

Feb. 16, 1993.

Gregory K. Matthews, Portsmouth (Marcus, Santoro & Kozak, on brief), for appellant.

Oliver L. Norrell, III, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BRAY, ELDER and WILLIS, JJ.

ELDER, Judge.

Robert Marshall Blake appeals from his conviction for possession of a firearm after having been convicted of a felony. He argues that the evidence--which showed that his companion had actual possession of a firearm during the robbery in which both men took part--was insufficient to support his conviction. For the reasons that follow, we affirm appellant's conviction.

The evidence introduced at trial revealed the following: At about 6:30 p.m. on April 5, 1991, the robbery victim, Thomas Mayo, heard a knock at the door of his residence in Portsmouth. When Mayo opened the door, he saw appellant, who asked if he wanted to buy some jewelry. When Mayo declined, appellant asked if he would "be interested in a gun." At that point, another person appeared and pressed a gun into Mayo's ribs. Appellant grabbed Mayo's elbow and forced him into the house and up the stairs. The man with the gun held Mayo at gunpoint while appellant and another man searched the house. When the gunman became distracted, Mayo tried to escape. During the ensuing struggle to subdue Mayo, the gun discharged. The gunman held the gun in Mayo's face, but appellant said, "Don't kill him yet. Don't kill him now." The men demanded to know where Mayo's money was. After he told them, they took it and left. At no time did Mayo see a gun in appellant's possession.

At trial, after the Commonwealth's case-in-chief, appellant moved to strike based on the insufficiency of the evidence as to possession. The court overruled his motion. Appellant moved to strike again after presenting his own case, but this motion was also overruled. The judge found appellant guilty as charged.

On appeal of the trial court's ruling,

we review the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.

Martin v. Commonwealth, 4 Va.App. 438, 443, 358 S.E.2d 415, 418 (1987) (citing Code § 8.01-680).

Even when viewed in the light most favorable to the Commonwealth, the record gives no indication that appellant ever had actual possession of the firearm. The issue is whether constructive possession of a firearm by a convicted felon is sufficient to support a conviction. This issue presents a question of first impression in this jurisdiction. For guidance, we look to principles concerning constructive possession of controlled substances in Virginia and constructive possession of firearms in other jurisdictions.

To prove constructive possession of drugs, the Commonwealth must show that the defendant was "aware of both the presence and character of the substance and that it was subject to his dominion and control." Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). "[M]ere proximity to a controlled drug is not sufficient to establish dominion and control." Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986). However, 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) (quoting Gillis v. Commonwealth, 215 Va. 298, 301-02, 208 S.E.2d 768, 771 (1974)).

Applying these principles in Hamilton v. State, 179 Ga.App. 434, 346 S.E.2d 881, 883 (19...