Hancock v. Com.
Decision Date | 29 December 1995 |
Docket Number | No. 1740-94-3,1740-94-3 |
Citation | 465 S.E.2d 138,21 Va.App. 466 |
Court | Virginia Court of Appeals |
Parties | Winfred L. HANCOCK, s/k/a Winfred Lee Hancock, v. COMMONWEALTH of Virginia. Record |
John P. Varney (Office of the Public Defender, on brief), Roanoke, for appellant.
Marla Graff Decker, Assistant Attorney General (James S. Gilmore, III, Attorney General; Robert B. Condon, Assistant Attorney General, on brief), for appellee.
Present: BAKER, BENTON and OVERTON, JJ.
Winfred L. Hancock was convicted of possession of a firearm after having been convicted of a felony in violation of Code § 18.2-308.2. He contends the evidence was insufficient to prove that he possessed the firearm. For the reasons that follow, we reverse the conviction.
On April 11, 1994, Officer K.O. Hubbard was dispatched to respond to a call concerning shots fired from a vehicle. Hubbard stopped a vehicle that matched the description given by the dispatcher. Two men sat in the front seat and three men were in the back seat. After Hubbard learned that the driver did not have a license, he asked the driver and the passengers to exit the vehicle one at a time.
When Sergeant M.A. Lee arrived, Hancock was seated behind the driver's seat. Another passenger was sitting beside the right passenger door. The other three men were outside the vehicle. Lee asked Hancock to leave the vehicle. As Hancock picked up his feet and exited, Lee observed a revolver on the floorboard under the driver's seat. Lee testified that he could not see the firearm until Hancock "stepped out and his feet were on top of it."
Lee removed the firearm, inspected it, and replaced it in the vehicle. Hubbard then recovered the firearm and noticed that it had fresh mud on it and two of the three shells had been fired. He also noted that Hancock's shoes were wet. Clothes and a towel were found under the driver's seat, between the gun and the front of the car.
From these facts, the trial judge found that Hancock possessed the weapon. He sentenced Hancock to three years imprisonment. On this appeal, Hancock claims the evidence was insufficient to support such a finding.
A conviction for knowingly and intentionally possessing a firearm after having been convicted of a felony, see Code § 18.2-308.2, requires proof beyond a reasonable doubt of either actual or constructive possession of the firearm. See Blake v. Commonwealth, 15 Va.App. 706, 708, 427 S.E.2d 219, 220 (1993). Hancock did not have actual possession of the firearm. Indeed, the trial judge based the conviction upon his finding that Hancock had constructive possession of the firearm.
In rendering his verdict, the trial judge made the following findings:
Possession, of course, take[s] the form of actual possession on the person or constructive possession and control. It appears to the Court that Mr. Hancock may not have had actual physical possession but that he had constructive possession. He knew that the gun was there or should have known. It was under his feet.
The trial judge erred in concluding that guilt could be established by proving that Hancock "should have known" the firearm was below his feet. Liability under Code § 18.2-308.2 requires proof that the accused "knowingly and intentionally possess[ed] ... any firearm." Thus, the Commonwealth must prove a defendant's actual knowledge of the firearm. See Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 (1977); Burton v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 759 (1975); Buono v. Commonwealth, 213 Va. 475, 476, 193 S.E.2d 798, 798-99 (1973). The trial judge misunderstood the requisite mental state when he ruled that "should have known" was sufficient. We can affirm this appeal only if the Commonwealth proved beyond a reasonable doubt that Hancock had actual knowledge of the presence of the firearm, i.e. "knowingly and intentionally possess[ed]" the firearm. Code § 18.2-308.2. See also Staples v. United States, 511 U.S. 600, ----, 114 S.Ct. 1793, 1806, 128 L.Ed.2d 608 (1994)(Ginsburg, J., concurring)(" 'Knowingly possessed' logically means 'possessed and knew that he possessed' ").
To support a conviction based upon constructive possession "the Commonwealth must point to evidence of acts, statements, or conduct of the accused or other facts or circumstances which tend to show that the [accused] 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). Proof that the firearm "was found in ... a vehicle ... occupied by the [accused] is insufficient, standing alone, to prove constructive possession." Id.
Hubbard testified that the stop occurred at night and that after Hancock had exited the automobile, a street light illuminated the interior, enabling Hubbard to see the firearm. The firearm was on the floor of the vehicle under the driver's seat. When Hubbard was watching the passengers exit the automobile, he was unable to see the firearm. The legs of the passengers prevented him from seeing the floorboard. He testified that if a person entering the automobile did not look at the floorboard, that person would not necessarily have seen the firearm.
Lee caused Hancock to exit the vehicle. When Lee asked Hancock to step from the vehicle, Lee did not see the firearm. Lee testified that when Hancock picked up his feet and started to step out, he then "noticed a blue steel revolver underneath ... his feet which was stuck underneath the back side of the driver['s] seat." Lee did not recall whether the automobile had an interior light.
The Commonwealth offered no other evidence to establish Hancock's constructive possession of the firearm. No fingerprint evidence was offered. No witnesses testified as to when Hancock entered the vehicle. Hancock made no statement concerning the firearm. The evidence does not exclude the hypothesis that another individual in the vehicle may have possessed the gun. See LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316 (1950)(circumstantial evidence requires the Commonwealth to exclude every reasonable hypothesis of innocence).
The evidence in this case proved circumstances analogous to the proof in Crisman v. Commonwealth, 197 Va. 17, 87 S.E.2d 796 (1955). In that case, a driver and four passengers were stopped one morning in a vehicle. The police found a packet of cocaine on the floor in front of the rear seat and charged two of the passengers with possession of the substance. In reversing the convictions, the Supreme Court ruled as follows:
There were five men in the automobile, any one of whom could have dropped the [item] on the floor. Or it could have been placed there by some unknown party. There is no proof of the ownership of the [item] or who placed it on the floor of the car.
The Commonwealth contends that Adkins v. Commonwealth, 217 Va. 437, 229 S.E.2d 869 (1976) and State v. Washington, 605 So.2d 720 (La.Ct.App.1992) require that we affirm the conviction. We disagree. In Adkins, the...
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