Bolden v. Com.

• Decision Date: 11 January 2008
• Docket Number: Record No. 070816.
• Citation: 654 S.E.2d 584
• Parties: Baraka BOLDEN, s/k/a Baraka S. Bolden v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

654 S.E.2d 584

Baraka BOLDEN, s/k/a Baraka S. Bolden v. COMMONWEALTH of Virginia.

Record No. 070816.

Supreme Court of Virginia.

January 11, 2008.

Ben Pavek, Chief Deputy Public Defender, for appellant.

Benjamin H. Katz, Assistant Attorney General (Robert D. McDonnell, Attorney General, on brief), for appellee.

Present: All the Justices.

OPINION BY Justice S. BERNARD GOODWYN.

In this appeal from a judgment of the Court of Appeals, we consider whether the evidence was sufficient to establish that the defendant possessed a firearm.

Baraka Bolden was tried, without a jury, in the Circuit Court of the City of Hampton on October 19, 2005, upon indictments charging possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, possession of a firearm while in possession of cocaine, possession of a concealed weapon, and possession of a firearm by a convicted felon. Bolden was convicted on all charges and sentenced to a total of 22 years' imprisonment with 12 years suspended.

The Court of Appeals, in a published opinion, Bolden v. Commonwealth, 49 Va.App. 285, 640 S.E.2d 526 (2007), affirmed the trial court's judgment, holding, in relevant part, that the trial court did not err in finding the evidence sufficient to sustain Bolden's convictions.

This Court granted Bolden an appeal limited to the issues of: whether sufficient evidence existed to find that Bolden possessed a firearm or weapon; and whether the Court of Appeals erred when, in determining the sufficiency of the evidence, the Court considered evidence admitted at trial and contained in the record, even though that evidence was never argued to, nor commented upon by, the trial court.

On February 10, 2005, Officer Eric R. Bjune encountered a vehicle not parked within the parallel lines in a hotel parking lot. A man later identified as Bolden was sitting in the driver's seat and a woman was sitting in the front passenger seat. As Bjune approached the vehicle, both occupants exited the vehicle. Bolden closed the vehicle door and walked toward Bjune. When Bolden was within several feet of the officer, Bolden dropped some brown rolling paper and a "blue Ziploc bag" that appeared to contain cocaine. Bjune immediately placed Bolden into custody and searched him, finding several bags of marijuana hidden in Bolden's groin area and $590 in cash on Bolden's person.

When Bjune looked in the vehicle, he saw a blue plastic grocery bag in plain view in the driver's seat against the armrest. Bjune opened the bag and found a loaded .32 caliber handgun inside the bag. Regarding the location of the bag, Bjune testified that "it was right beside Mr. Bolden or he was sitting on it." Officer Bjune admitted that he could not determine that a firearm was in the blue bag until he "picked up the bag and looked inside."

Bjune also found an open knapsack in the vehicle. It contained a box of sandwich baggies and additional small bags consistent with the one containing the cocaine that Bolden had dropped. Additionally, the knapsack contained marijuana and a digital scale. Bjune testified that he did not know how long Bolden was in the vehicle prior to Bjune's arrival. Detective Christopher Hake, an expert in narcotics manufacturing, distribution, and packaging, testified that the narcotics possessed by Bolden were inconsistent with personal use. Hake based his opinion upon the combined findings of: the packaging of the narcotics, the presence of additional packaging materials in the vehicle, the $590 in cash seized from Bolden's person, the scales, and the firearm with ammunition found in the vehicle. Hake testified that a drug dealer would carry a firearm "so he can protect his interests — his cocaine, his money."

Bolden challenges the sufficiency of the evidence to prove beyond a reasonable doubt that he possessed the firearm in question. He also contends that an appellate court determining the sufficiency of the evidence may not consider evidence admitted at trial, but not mentioned by the Commonwealth in its trial arguments or by the trial court in its ruling. Specifically, Bolden asserts that the Commonwealth's theory of constructive possession argued at trial did not mention the connection between drug distribution and possession of a firearm, and the trial court did not comment on any such connection in its ruling.

When a defendant challenges on appeal the sufficiency of the evidence to sustain his conviction, the appellate court has a duty to examine all the evidence that tends to support the conviction. Coles v. Commonwealth, 270 Va. 585, 587, 621 S.E.2d 109, 110 (2005); Commonwealth v. Presley, 256 Va. 465, 466, 507 S.E.2d 72, 72 (1998); Commonwealth v. Jenkins, 255 Va. 516, 520, 499 S.E.2d 263, 265 (1998). Contrary to Bolden's assertion, this examination is not limited to the evidence mentioned by a party in trial argument or by the trial court in its ruling. In...