Thomas v. Commonwealth

Decision Date02 October 2018
Docket NumberRecord No. 1322-17-1
CourtVirginia Court of Appeals
PartiesKEVIN ANTOINE THOMAS v. COMMONWEALTH OF VIRGINIA

UNPUBLISHED

Present: Judges Humphreys, Malveaux and Senior Judge Annunziata

Argued at Norfolk, Virginia

MEMORANDUM OPINION* BY JUDGE MARY BENNETT MALVEAUX

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON

Christopher W. Hutton, Judge

David W. Anderson, II, Assistant Public Defender, for appellant.

John I. Jones, IV, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Kevin Antoine Thomas ("appellant") was convicted of possession of a firearm after having been previously adjudicated delinquent as a juvenile, in violation of Code § 18.2-308.2(A). He argues the trial court erred in denying his motion to strike because the evidence was insufficient to prove that he possessed the firearm. Appellant further argues the trial court erred in limiting his cross-examination of a witness. For the reasons that follow, we affirm.

I. BACKGROUND

"Under familiar principles of appellate review, we will state 'the evidence in the light most favorable to the Commonwealth, the prevailing party in the trial court, and will accord the Commonwealth the benefit of all reasonable inferences fairly deducible from that evidence.'" Sidney v. Commonwealth, 280 Va. 517, 520, 702 S.E.2d 124, 126 (2010) (quoting Murphy v. Commonwealth, 264 Va. 568, 570, 570 S.E.2d 836, 837 (2002)).

On the evening of September 12, 2016, Officer Matthew Grant of the Hampton University Police Department stopped a car that did not have its license plates properly displayed. Appellant was driving the car. When Grant asked appellant for his driver's license, he replied that he did not have one and admitted that his license had been suspended.

Grant smelled a faint odor of marijuana coming from the car and asked appellant if there were any drugs or weapons inside the vehicle. Appellant stated that there was a small amount of marijuana in the center console, and "attempted to reach for the center console to open [it]." Grant told appellant not to reach for the console and instructed him to place his hands on the steering wheel. He again asked appellant if there were any weapons in the car, and appellant replied, "I'm not sure."

After placing appellant in investigative detention, Grant searched the car. He first searched the center console where appellant had indicated there was marijuana. The console had a latch but no lock and consisted of a top level and a bottom level. In the top level, Grant found a round of ammunition. In the bottom level, he found an unloaded firearm. In the floorboard on the driver's side, Grant discovered a magazine containing ammunition. The magazine was in plain view and "would have been right between [appellant's] feet while he was driving the vehicle." Grant found no marijuana in the center console, but did find small amounts of the drug in the car's cup holder and in the floorboard on the passenger's side.

The Virginia Department of Forensic Science analyzed the firearm, magazine, and ammunition and determined that the weapon was a nine-millimeter Luger pistol. The magazine was successfully used to test-fire the gun. Appellant was indicted for possession of a firearmafter having been previously adjudicated delinquent as a juvenile, in violation of Code § 18.2-308.2(A).1

During cross-examination at trial, appellant's counsel questioned Officer Grant about the car appellant was driving. Grant testified that, after the traffic stop, he released the car to Shaminece Hawkins. When counsel asked Grant if Hawkins was the car's owner, the Commonwealth objected on hearsay grounds. The trial court sustained the objection with respect to the question of ownership, but allowed counsel to ask Grant why he released the car to Hawkins. When counsel later asked Grant, "The vehicle didn't belong to [appellant]?" the Commonwealth renewed its hearsay objection. Appellant's counsel argued that the identity of the car's owner was not an out-of-court statement, but rather "a fact that the officer can be aware of." The Commonwealth responded that ownership of the car was "something that [Grant] could not know unless he was told by a separate party; therefore, it is speculation. And anything he [was] told is based on hearsay."

Outside the presence of the jury, Grant was further questioned by appellant's counsel and the trial court. Counsel asked Grant whether he would release a vehicle to its owner after a traffic stop if the individual who had been driving it was not the owner. Grant replied that "[i]t varies case by case." He also stated that in such situations he would typically verify the identity of the vehicle's owner, but that in the present case he did not recall doing so. Grant confirmed that he had completed a police report which indicated he had verified the owner's identity. He testified that, according to his report, appellant was not the car's owner. When the court asked,"[y]our report indicates that somehow you verified that Ms. Hawkins was the owner?" Grant stated, "[t]hat would be correct. Somehow, some way, either through a third party or through a registration. I do not recall a registration being given." Grant clarified that by a "third party," he meant "[a] dispatcher." The trial court sustained the Commonwealth's objection, ruling that Grant could not be cross-examined to authenticate or verify the car owner's identity because Grant's testimony "would quite possibly be not only speculative, but hearsay."

At the close of the Commonwealth's evidence, appellant moved to strike. The trial court denied the motion. Appellant's renewed motion to strike was also denied. The jury convicted appellant, and this appeal followed.

II. ANALYSIS

Appellant argues the trial court erred in denying his motion to strike, because the evidence was insufficient to prove that he possessed the firearm in question. He further argues the trial court erred in sustaining the Commonwealth's objection and preventing him from cross-examining Grant about the car's ownership. We address these arguments in turn.

A. Motion to Strike

Appellant argues the trial court erred in denying his motion to strike, because there was no evidence that he actually possessed the firearm found in the car and the evidence of constructive possession was insufficient. He contends the Commonwealth presented only circumstantial evidence of constructive possession, which failed to exclude his reasonable hypothesis of innocence that he did not know the firearm was in the car.

"A motion to strike challenges whether the evidence is sufficient to submit the case to the jury." Lawlor v. Commonwealth, 285 Va. 187, 223, 738 S.E.2d 847, 868 (2013). What elements must be proved to convict for an offense "is a question of law that we review de novo. Whether the evidence adduced is sufficient to prove each of those elements is a factual finding,which will not be set aside on appeal unless it is plainly wrong." Id. at 223-24, 738 S.E.2d at 868. In conducting our review of the trial court's factual finding, we view the evidence in the light most favorable to the Commonwealth and give it the benefit of all reasonable inferences fairly deducible from the evidence. Id. at 224, 738 S.E.2d at 868. The question then is "whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (quoting McNeal v. Commonwealth, 282 Va. 16, 20, 710 S.E.2d 733, 735 (2011)). If there is evidence to support the conviction, we are not permitted to substitute our judgment, "even if [our] view of the evidence might differ from the conclusions reached by the finder of fact at the trial." Id.

Code § 18.2-308.2(A)(iii) provides, in pertinent part, that it shall be unlawful for "any person under the age of 29 who was adjudicated delinquent as a juvenile . . . to knowingly and intentionally possess or transport any firearm." A conviction for the unlawful possession of a firearm "can be supported exclusively by evidence of constructive possession; evidence of actual possession is not necessary." Smallwood v. Commonwealth, 278 Va. 625, 630, 688 S.E.2d 154, 156 (2009) (quoting Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). To prove constructive possession, "the Commonwealth must present evidence of acts, statements, or conduct by the defendant or other facts and circumstances proving that the defendant was aware of the presence and character of the firearm and that the firearm was subject to his dominion and control." Id. "While the Commonwealth does not meet its burden of proof simply by showing the defendant's proximity to the firearm, it is a circumstance probative of possession and may be considered as a factor in determining whether the defendant possessed the firearm." Id. at 630-31, 688 S.E.2d at 156-57. Further, ownership or occupancy of a vehicle in which the firearm is found "is a circumstance that may be considered together with other evidence tending to prove that the owner or occupant exercised dominion and control overitems" in the vehicle, "in order to prove that the owner or occupant constructively possessed the [firearm]." Redmond v. Commonwealth, 57 Va. App. 254, 264-65, 701 S.E.2d 81, 86 (2010) (quoting Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81, 83 (1992)). To support the inference that the vehicle's owner or occupant constructively possessed the firearm, "the owner or occupant must be shown to have exercised dominion and control over the [vehicle] and to have known of the [firearm's] presence, nature and character . . . at the time of such ownership or occupancy." Id. at 265, 701 S.E.2d at 86 (quoting Burchette, 57 Va. App. at 435, 425 S.E.2d at 84). The question of what constitutes constructive possession "is largely a factual one." Smallwood, 278 Va. at 630, 688 S.E.2d at 156 (quoting Ritter v. Commonwealth, 210 Va. 732, 743, 173 S.E.2d 806, 807 (1970)). "While no single piece of...

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