Hunter v. Com.

• Decision Date: 30 March 2010
• Docket Number: Record No. 2989-08-2.
• Citation: 690 S.E.2d 792,56 Va. App. 50
• Court: Virginia Court of Appeals
• Parties: Delacy Deon HUNTER v. COMMONWEALTH of Virginia.

690 S.E.2d 792

56 Va. App. 50

Delacy Deon HUNTER v. COMMONWEALTH of Virginia.

Record No. 2989-08-2.

Court of Appeals of Virginia, Richmond.

March 30, 2010.

Ronald J. Hur, Assistant Public Defender (Sarah Abernathy, Assistant Public Defender; Office of the Public Defender, on brief), for appellant.

John W. Blanton, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: FRANK, HUMPHREYS and PETTY, JJ.

PETTY, Judge.

On September 17, 2008, Delacy Deon Hunter, appellant, was convicted of possession of a Schedule I controlled substance in violation of Code § 18.2-250, possession of a controlled substance while simultaneously in possession of a firearm on or about his person in violation of Code § 18.2-308.4(B), and carrying a concealed weapon in violation of Code § 18.2-308(A). On appeal, Hunter argues that the evidence was insufficient to prove that (1) he possessed a firearm on or about his person under Code § 18.2-308.4(B) and (2) he carried a concealed weapon about his person under Code § 18.2-308(A).¹ For the following reasons, we reverse Hunter's conviction under Code § 18.2-308.4(B) but we remand the case to the trial court for a new trial on the lesser-included offense under Code § 18.2-308.4(A), see Britt v. Commonwealth, 276 Va. 569, 576, 667 S.E.2d 763, 766-67 (2008), and we reverse and dismiss Hunter's conviction under Code § 18.2-308(A).

I. BACKGROUND

On April 10, 2008, Delacy Hunter was one of two passengers in a car driven by Rodney Quinn. Hunter sat in the front passenger seat, and the other passenger sat in the back seat. Deputy T.D. Onderko, of the Spotsylvania Sheriff's Department, stopped the car because it did not have "tag lights." Deputy Onderko asked Quinn if he could search the car, and Quinn consented.

The driver and the two passengers got out of the car and went behind the car to wait while Deputy Onderko performed his search. When they were walking to the back of the car, Hunter asked Quinn what he was doing. Quinn responded, "Don't worry, it's locked. The box is locked. I have the keys." Sometime before walking behind the car, Hunter walked toward the front of the car, stopped, and walked to the back of the car.

After performing a search of the car, Deputy Onderko discovered a bag of marijuana under the driver floor mat. Deputy Onderko attempted to search the glove compartment directly in front of the front passenger seat but the compartment was locked. Deputy Onderko asked Quinn for the key to unlock the glove compartment, and when Quinn refused,² Onderko arrested Quinn for possession of marijuana, obtained the keys for the glove compartment, and searched it.

After finding a handgun in the glove compartment, Deputy Onderko placed the two passengers in handcuffs and read them their Miranda rights. Hunter stated that "the firearm was his and he was going to take the charge."

Deputy Onderko continued his search of the vehicle and, on top of the front passenger tire he found a bottle of Motrin that contained twelve pills that looked like ecstasy. Onderko testified that Hunter was the only person to walk to the front of the car, stop, and walk back. A video of the traffic stop, which the Commonwealth introduced into evidence, supported this statement. The certificate of analysis produced by the Department of Forensic Science confirmed that some of the pills were ecstasy. While at the magistrate's office, Hunter told Deputy Onderko that he "bought the gun and ecstasy in North Carolina and that he paid eighty bucks for the gun." Hunter referred to the pills in the Motrin bottle as "X."

At trial, Hunter made a motion to strike the Commonwealth's evidence arguing that the evidence was insufficient to support convictions for possession of the firearm or possession of a firearm while in possession of a controlled substance. The trial court denied Hunter's motion to strike and convicted him of all three charges. This appeal followed.

II. ANALYSIS

Hunter contends on appeal that the evidence was insufficient to prove beyond a reasonable doubt (1) that he possessed a controlled substance and simultaneously with knowledge and intent possessed a firearm on or about his person in violation of Code § 18.2-308.4(B) and (2) that he carried a concealed firearm about his person in violation of Code § 18.2-308(A). When considering the sufficiency of the evidence below, "we grant the judgment of the trial court sitting without a jury the same weight as a jury verdict and will not disturb that judgment on appeal unless it is plainly wrong or without evidence to support it." Ellis v. Commonwealth, 29 Va.App. 548, 554-55, 513 S.E.2d 453, 456 (1999) (citing Myrick v. Commonwealth, 13 Va.App. 333, 339, 412 S.E.2d 176, 179 (1991)). For the following reasons, we reverse Hunter's convictions.

A. Possession of a Firearm while in Possession of Certain Controlled Substances

In 2003, our General Assembly amended Code § 18.2-308.4 by adding subsection (B). The statute now requires that the accused knowingly and intentionally possess the firearm "on or about his person" while simultaneously in possession of a controlled substance. Hunter argues that the phrase "on or about his person" requires the Commonwealth to prove actual possession of the firearm. The Commonwealth disagrees and argues that the legislature clearly intended to authorize a heightened penalty for a defendant who either actually or constructively possesses a firearm that is readily accessible for prompt and immediate use. Hunter argues in the alternative that even if the statute is construed to apply to the constructive possession of a firearm, there was no evidence presented that proved the firearm was readily accessible for prompt and immediate use and thus "on or about his person."

"Under principles of statutory construction, we must consider the ordinary and plain meaning of statutory terms." Winborne v. Virginia State Lottery, 278 Va. 142, 148, 677 S.E.2d 304, 306 (2009). When interpreting a statute, our objective is to interpret the statute "in accordance with the intent of the legislature." Id. (citing Virginia Cellular LLC v. Virginia Dep't of Taxation, 276 Va. 486, 490, 666 S.E.2d 374, 376 (2008)). We typically deduce the intent of the legislature "`from the words contained in the statute.'" Baker v. Commonwealth, 278 Va. 656, 660, 685 S.E.2d 661, 663 (2009) (quoting Elliott v. Commonwealth, 277 Va. 457, 463, 675 S.E.2d 178, 182 (2009)). "Additionally, `in accordance with principles of statutory construction of penal statutes, a court must not add to the words of the statute nor ignore the words of the statute and must strictly construe the statute and limit its application to cases falling clearly within the statute.'" Id. at 660-61, 685 S.E.2d at 663 (quoting Farrakhan v. Commonwealth, 273 Va. 177, 181-82, 639 S.E.2d 227, 230 (2007)). This means that we must construe the statute "strictly against the State and favorably to the liberty of the citizen" so as to ensure that "no man incurs a penalty unless the act which subjects him to it is clearly within the spirit and letter of the statute which imposes such penalty." Sutherland v. Commonwealth, 109 Va. 834, 835, 65 S.E. 15, 15 (1909).

Code § 18.2-308.4 has been amended since we first addressed the type of possession required in Jefferson v. Commonwealth, 14 Va.App. 77, 414 S.E.2d 860 (1992). Prior to 2003, the pertinent portion of the statute simply prohibited any possession of a firearm while in simultaneous possession of a Schedule I or II controlled substance. In 2003, the General Assembly amended the statute to carve out a new offense. Now, subsection (A) prohibits the possession of a firearm while in simultaneous possession of certain controlled substances. Subsection (B), which imposes a mandatory two-year sentence, makes it illegal for any person who is unlawfully in possession of a controlled substance "to simultaneously with knowledge and intent possess any firearm on or about his person." (Emphasis added). Subsection (C), which was not changed by the 2003 amendment, prohibits the simultaneous possession of a firearm while in possession of a controlled substance with the intent to distribute it. Wright v. Commonwealth, 278 Va. 754, 759, 685 S.E.2d 655, 657 (2009). "There can be no dispute that the purpose of the legislation was to establish three categories of crimes relating to the possession of controlled substances and firearms at the same time." Id. The only dispute here is whether the elements required by subsection (B) have been proven.

1. The Element of Possession of a Firearm

Subsection (B) begins by prohibiting the possession of a firearm in certain circumstances. Where the General Assembly uses the word "possess," Virginia courts have typically held that proof of actual or constructive possession are both permissible. Smallwood v. Commonwealth, 278 Va. 625, 630, 688 S.E.2d 154, 156 (2009); Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). Indeed our Supreme Court has stated that "a well-settled principle of our jurisprudence is that a conviction for unlawful possession of a firearm or controlled substance may be based solely on evidence of constructive possession." Wright, 278 Va. at 759, 685 S.E.2d at 657 (citing Rawls v. Commonwealth, 272 Va. 334, 349-50, 634 S.E.2d 697, 705 (2006) (constructive possession of firearm); Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 872 (1998) (constructive possession of drugs); Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d 799, 805-06 (1970) (constructive possession of drugs)).

In 1992, we interpreted the 1987 version of Code § 18.2-308.4 and held that constructive possession of either the controlled substance or the firearm, or both, was sufficient to support a conviction. Jefferson, 14 Va.App. at 80, 414 S.E.2d at 862. That conclusion did not change with the amendments in 1992, 1993, or 1999. See Wright v. Commonwealth, 53 Va.App....