Jefferson v. Com., 1251-90-2

• Decision Date: 10 March 1992
• Docket Number: No. 1251-90-2,1251-90-2
• Citation: 14 Va.App. 77,414 S.E.2d 860
• Parties: Gregory McCain JEFFERSON v. COMMONWEALTH of Virginia. Record
• Court: Virginia Court of Appeals

Page 860

414 S.E.2d 860

14 Va.App. 77

Gregory McCain JEFFERSON v. COMMONWEALTH of Virginia.

Record No. 1251-90-2.

Court of Appeals of Virginia.

March 10, 1992.

David L. Hauck, Richmond (Duane & Shannon, P.C., on brief), for appellant.

Marla Lynn Graff, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: KOONTZ, C.J., and BENTON and DUFF, JJ.

DUFF, Judge.

Gregory Jefferson appeals his felony conviction for possession of a firearm while in possession of a controlled substance, in violation of Code § 18.2-308.4. The sole issue raised on appeal is whether the evidence is sufficient to support Jefferson's conviction under the statute. Jefferson asserts that the legislative intent behind Code § 18.2-308.4 was to prohibit actual simultaneous possession of drugs and weapons, in order to deter drug warfare. He, therefore, argues that constructive possession of both items is insufficient to support his conviction. We find that the statute contains no such restriction. Accordingly, we find sufficient evidence to support Jefferson's conviction and affirm the decision of the trial court.

The record shows that a search warrant was executed at the home of Sally Greenwood on April 28, 1989. As the Chesterfield County police officers proceeded down a hallway to a back bedroom, they met Jefferson who was coming out of the master bedroom. The officers searched Jefferson and discovered $1,128 in his front pockets.

A search of the master bedroom revealed a number of items. In a drawer of the dresser, the police found a box of .32 caliber ammunition, a knife, and two boxes of clear plastic sandwich bags. On the floor of the master bedroom closet, the police found an ice bucket that held two baggies containing cocaine and seven corners of baggies containing cocaine, as well as rice. Officer Bromseth testified that rice is commonly used to keep cocaine from being destroyed by moisture. Next to the ice bucket, the police found a "Cobra-11" .9 mm. automatic weapon inside a clear plastic bag. According to all testimony, the "Cobra-11" weapon belonged to Jefferson's nephew.

On a shelf above the ice bucket, the police found a chrome-plated .32 caliber revolver in a shoulder holster. Jefferson acknowledged ownership of the .32 caliber revolver, but claimed that he had lent it to Ms. Greenwood for her protection. Ms. Greenwood, while testifying that the gun did, indeed, belong to Jefferson, claimed that she had never spoken to Jefferson about the gun or the reasons he owned it.

Under the bed, the police discovered a set of scales on a piece of glass and a metal lockbox containing $2,030. The money was intermingled with personal papers and paycheck stubs carrying Jefferson's name. Jefferson admitted ownership of the money, although he denied knowledge of when or how it was put into the lockbox.

During a consensual search of Jefferson's car, which was parked in Greenwood's driveway, the police found a .38 caliber Colt revolver and a .38 caliber "Titan Tiger" revolver. Jefferson acknowledged ownership of both of these weapons.

The trial court convicted Jefferson of two separate offenses: (1) possession of cocaine with intent to distribute; and (2) possession of a firearm while in possession of a controlled substance. Jefferson's appeal contests only the second conviction.

Code § 18.2-308.4(A) provides that "[a]ny person unlawfully in possession of ... cocaine ... who simultaneously with knowledge and intent possesses any firearm shall be guilty of a Class 6 felony." ¹ Jefferson contends that the evidence is insufficient to support a finding that he possessed any of the discovered firearms with intent and knowledge while simultaneously possessing the cocaine found on the closet floor. We disagree.

Jefferson refers to Code § 18.2-308 (the "Concealed Weapons Statute"), which requires proof that the weapon be "so connected with the person as to be readily accessible for use or surprise if desired." Schaaf v. Commonwealth, 220 Va. 429, 430-431, 258 S.E.2d 574, 575 (1979) (quoting Sutherland's Case, 109 Va. 834, 835, 65 S.E. 15, 15 (1909)). He argues that since the Commonwealth proved only constructive possession of a handgun, the weapon was not "readily accessible for use or surprise." Id. However, Jefferson's reliance upon legislative intent is misplaced. Code § 18.2-308.4 is not an extension of the Concealed Weapons Statute. The clear wording of Code § 18.2-308.4 prohibits unlawful possession of cocaine "simultaneously with" knowingly and intentionally possessing any firearm. No language in Code § 18.2-308.4 requires proof of concealment of weapons. Article 7 of Title 18.2 includes a variety of independent and unrelated illegal firearms offenses. See Code §§ 18.2-308 through 18.2-308.6. If the legislature had intended to require concealment of the weapon as an element of the offense at issue here, such language...