Davis v. Com., Record No. 2667-01-3.

• Citation: 570 S.E.2d 875,39 Va. App. 96
• Decision Date: 15 October 2002
• Docket Number: Record No. 2667-01-3.
• Court: Court of Appeals of Virginia
• Parties: Tracy Antonio DAVIS v. COMMONWEALTH of Virginia.

570 S.E.2d 875

39 Va. App. 96

Tracy Antonio DAVIS v. COMMONWEALTH of Virginia.

Record No. 2667-01-3.

Court of Appeals of Virginia, Salem.

October 15, 2002.

Joseph R. Winston, Special Appellate Counsel (Public Defender Commission, on briefs), for appellant. Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: ANNUNZIATA, BUMGARDNER and FRANK, JJ.

ANNUNZIATA, Judge.

The trial court convicted Tracy Antonio Davis of possession of cocaine and possession of a firearm while in possession of cocaine. The court sentenced him to two years and five years in prison respectively. The court also found that Davis had violated probation on a previously suspended sentence. It consequently revoked the six-year suspended sentence and re-suspended five years, giving him one year to serve. On appeal, Davis contends that: (1) the evidence was insufficient to prove that he possessed a firearm; and (2) the trial court erroneously revoked his previously suspended sentence because the court based the revocation on the conviction at issue on appeal. For the following reasons, we affirm the decision of the trial court.

Background

On appeal, we view the evidence in the light most favorable to the Commonwealth, the party prevailing below, together with all reasonable inferences that may be drawn. Ortega v. Commonwealth, 31 Va.App. 779, 786, 525 S.E.2d 623, 627 (2000) (citing Archer v. Commonwealth, 26 Va.App. 1, 11, 492 S.E.2d 826, 831 (1997)) (additional citation omitted). On January 16, 2001, Officers Haynes, Coleman and Shumate of the Martinsville Police Department found Davis standing about three feet into a roadway, making it necessary for vehicles to swerve to avoid hitting him. Haynes told Davis to move from the roadway. He told Davis he wanted to speak with him and planned to issue him a summons for a violation of Code § 46.2-928.

Davis "took off running." Officer Coleman pursued Davis on foot, and ultimately tackled him to the ground. As a result, Davis'"baggy jeans" slid down to his legs. Coleman handcuffed Davis and led him to the police car, where he was kept in custody by another officer. Upon searching the area where Davis had fallen, Coleman recovered a stainless steel semi-automatic Fire Star .45 caliber handgun, with a loaded magazine and one round in the chamber. Coleman had not seen any weapons in the area before or during the chase of Davis. Additionally, Coleman never lost sight of the unoccupied area after tackling and handcuffing Davis. At trial, Davis was found guilty of possession of cocaine found in the back seat of the car where he had been sitting.¹ Based on his past record, which also included two convictions for driving with a suspended license, and the new convictions, the court revoked Davis' six-year suspended sentence and resuspended five years.

Davis first contends that the evidence was insufficient to convict him of the firearm charge. He argues that the Commonwealth must present an unbroken chain of circumstantial evidence to sustain a conviction, citing Brown v. Commonwealth, 211 Va. 252, 254, 176 S.E.2d 813, 814 (1970).

Davis further asserts that the trial court erred in revoking his previously suspended sentence because the court based the revocation on his subsequent conviction, which is the basis of this appeal. He contends that we should reverse his underlying conviction and the consequent revocation order as well. See Resio v. Commonwealth, 29 Va.App. 616, 622, 513 S.E.2d 892, 895 (1999) (holding that if the Commonwealth relies solely upon a criminal conviction "to establish the reasonable cause necessary to revocation," the fate of the underlying conviction will determine the outcome of an appeal of a revocation order).

Analysis

When sufficiency of the evidence is challenged on appeal, we consider the evidence "in the light most favorable to the Commonwealth, the prevailing party, and grant to it all reasonable inferences fairly deducible therefrom." Hagy v. Commonwealth, 35 Va. App. 152, 157, 543 S.E.2d 614, 616 (2001) (citation omitted). Furthermore, "we presume the judgment of the trial court to be correct," Broom v. Broom, 15 Va.App. 497, 504, 425 S.E.2d 90, 94 (1992), and "will not set it aside unless it is plainly wrong or without evidence to support it." Dodge v. Dodge, 2 Va.App. 238, 242, 343 S.E.2d 363, 365 (1986).

Circumstantial evidence is sufficient to sustain a finding of guilt if it excludes those reasonable hypotheses of innocence that "flow from the evidence, not those that spring from the imagination of the defendant." Hamilton v. Commonwealth, 16 Va.App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether a hypothesis of innocence is reasonable is a finding of fact, binding on appeal, unless plainly wrong. See Glasco v. Commonwealth, 26 Va.App. 763, 774, 497 S.E.2d 150, 155 (1998), aff'd, 257 Va. 433, 513 S.E.2d 137 (1999).

[T]he possession necessary to support a conviction for the possession of a firearm may be actual or constructive." Grier v. Commonwealth, 35 Va.App. 560, 570, 546 S.E.2d 743, 747-48 (2001). Constructive possession may be established by evidence of acts, statements or conduct of the accused, or other circumstances that show the defendant was aware of the presence and character of the weapon and that he exerted control and dominion over it. Id.

For a conviction to rest properly on circumstantial evidence, an unbroken chain of circumstances proving the defendant's guilt must be established. See Gordon v. Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971). In Gordon, the police observed the defendant holding a manila envelope before a chase ensued. When the police caught the defendant, he no longer had the envelope. Police later recovered a manila envelope containing drug paraphernalia in the area where the chase occurred. The...