Lamb v. Commonwealth Of Va.
| Decision Date | 08 February 2011 |
| Docket Number | Record No. 2832-09-1 |
| Parties | STEVEN PREVONCE LAMB v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
Present: Judges Elder, Petty and Beales
Argued at Richmond, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
James O. Broccoletti (Zoby & Broccoletti, P.C., on brief), for appellant.
Craig W. Stallard, Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Steven Prevonce Lamb (appellant) challenges the sufficiency of the evidence supporting his conviction for possession of a firearm by a convicted felon, a violation of Code § 18.2-308.2(A)(i). Specifically, appellant contends the trial court erred in finding that he constructively possessed the firearm that was found in the vehicle that appellant was driving. Given the standard of review in this case, we find that a rational factfinder could conclude that the evidence was sufficient to prove beyond a reasonable doubt that appellant was guilty of possession of the firearm. Therefore, we affirm his conviction.
When the sufficiency of the evidence supporting a conviction is challenged on appeal, we must affirm the trial court's judgment if "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). "'The judgment of a trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be set aside unless it appears from the evidence that the judgment is plainly wrong or without evidence to support it.'" Wilkins v. Commonwealth, 18 Va. App. 293, 295, 443 S.E.2d 440, 442 (1994) (en banc) (quoting Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987)). In such cases, this Court views the evidence in the light most favorable to the party who prevailed before the trial court, here, the Commonwealth. Dunbar v. Commonwealth, 29 Va. App. 387, 393, 512 S.E.2d 823, 826 (1999). We "must discard all evidence of the accused that conflicts with that of the Commonwealth and regard as true all credible evidence favorable to the Commonwealth and all fair inferences reasonably deducible therefrom." Lea v. Commonwealth, 16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993). "The credibility of the witnesses and the weight accorded the evidence are matters solely for the fact finder who has the opportunity to see and hear that evidence as it is presented." Sandoval v. Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).
"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." Hancock v. Commonwealth, 21 Va. App. 466, 468, 465 S.E.2d 138, 140 (1995); see Rawls v. Commonwealth, 272 Va. 334, 349, 634 S.E.2d 697, 705 (2006). 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 defendant was aware of both the presence and character of the substance and that it was subject to his dominion and control.'" Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v. Commonwealth. 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). While sufficient evidence of guilt is proven neither by mere proximity to the firearm nor by mere "occupancy of the premises" where a firearm is found, both proximity and occupancy are relevant factors that a factfinder can consider in determining guilt. Rawls, 272 Va. at 350, 634 S.E.2d at 705.
"[W]here, as here, a conviction is based on circumstantial evidence, 'all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and exclude every reasonable hypothesis of innocence.'" Garland v. Commonwealth, 225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982)). However, Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964). "The Commonwealth is not required to prove that there is no possibility that someone else may have planted, discarded, abandoned or placed the [contraband]." Brown v. Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 877, 883 (1992). Rather, the evidence must support a finding that the accused "had actual knowledge" that the firearm was present, Hancock, 21 Va. App. at 469, 465 S.E.2d at 140, and that the accused had sufficient access to the firearm to bring it under his dominion and control, Smallwood v. Commonwealth, 278 Va. 625, 631, 688 S.E.2d 154, 157 (2009).
Here, Officer Michael Cusumano stopped appellant because he was driving a car with a malfunctioning rear tag light, and appellant provided his driver's license, but claimed that he could not find his registration. Because the officer had smelled marijuana while talking with appellant, the officer asked appellant to get out of the car. The officer turned appellant over to Officer Spruill and then returned to appellant's car to search it. Officer Cusumano opened thedriver's side door. He testified that he "immediately looked down" towards the floorboard and saw "the black grip of a pistol sticking out from underneath the front driver's seat" while he was standing beside the car. The barrel of the gun was pointed toward the back seat. At trial, the officer demonstrated for the trial court how the nine-millimeter firearm was lying on the floorboard. Officer Cusumano did not see the gun while appellant was in the car because the officer was more concerned about watching appellant's hands than about looking at the floorboard, and because the gun's position was apparently underneath appellant's legs as he sat in the driver's seat. Appellant-the only person in the car-was arrested after the officer saw the gun. Officer Cusumano later discovered that the firearm had been stolen a year earlier from its owner in Norfolk.
After his arrest, appellant told the officer that the vehicle belonged to his cousin, but Officer Cusumano was never able to confirm that assertion. In fact, his inquiries at the Department of Motor Vehicles indicated that the car belonged either to a dealership or to someone other than appellant's cousin. The officer was "unable to get" any information about his cousin from appellant, who claimed that he did not know his cousin's address or phone number. Appellant also told the officer that he did not know that the gun was there.
In this case, the firearm was clearly visible to anyone opening the driver's side door.1 See Redmond v. Commonwealth, 57 Va. App. 254, 266, 701 S.E.2d 81, 87 (2010) (). In addition, the firearm was within appellant's easy reach, with the grip of the gun easily accessible to him as he sat in the car.
Although appellant claims that someone else could have left the gun under the seat, the evidence in this record does not indicate that anyone else had access to the gun to the exclusion of appellant. See Smallwood, 278 Va. at 631-32, 688 S.E.2d at 157 (). Appellant's contention that he got the car from his cousin is not supported by the evidence, especially as Officer Cusumano's inquiries at DMV were not able to confirm that his cousin ever owned the car. In addition, there is no evidence in this record that appellant slammed on his brakes when stopped by the officer, which might have caused the gun to move forward from an obscured position under the seat. Therefore, the totality of the circumstantial evidence in this case supports the trial court's finding that appellant knew that the firearm was present and that he had sufficient access to the firearm to bring it under his dominion and control.
Appellant contends that Coward v. Commonwealth, 48 Va. App. 653, 659, 633 S.E.2d 752, 754 (2006), where we reversed a conviction for cocaine possession, should control here. However, in that case the Commonwealth was required to prove that Coward knew the small item in the clear plastic baggie on the car's console was cocaine, but the evidence did not prove that Coward was familiar with cocaine. Id. at 659-60, 633 S.E.2d at 754-55. In other words, the Commonwealth did not prove Coward was aware of the nature of the substance in the baggie. Here, in contrast, the nature of the item under the seat (i.e., that it was a firearm) was not in question. The item that was visible upon entering the vehicle was obviously a grip to a firearm. Appellant had prior convictions for possessing a concealed weapon, so he clearly could not argue, and did not argue, that he was not familiar with firearms.
In addition, appellant made statements to the officer contending that the car did not belong to him-statements made only after the firearm was discovered-clearly attempting to conceal his connection to the weapon. In contrast, Coward neither did nor said anything suspicious either before or after the cocaine was discovered. Also, Coward was not in control of the car in which the officer observed the cocaine. Instead, he was a passenger in a car that actually belonged to the driver's mother. Id. at 656, 633 S.E.2d at 753. Here, in contrast, when Officer Cusumano stopped the car, appellant was in absolute control of the vehicle. He was the driver and the only...
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