Turner v. Commonwealth

• Court: Virginia Court of Appeals
• Writing for the Court: MARLA GRAFF DECKER
• Decision Date: 24 June 2014
• Docket Number: Record No. 1675-13-1
• Citation: Turner v. Commonwealth, Record No. 1675-13-1 (Va. App. Jun 24, 2014)
• Parties: STEPHON JERMAIN TURNER v. COMMONWEALTH OF VIRGINIA

STEPHON JERMAIN TURNER v. COMMONWEALTH OF VIRGINIA

Record No. 1675-13-1

COURT OF APPEALS OF VIRGINIA

JUNE 24, 2014

UNPUBLISHED

Present: Judges Kelsey, Beales and Decker

Argued by teleconference

MEMORANDUM OPINION^* BY

JUDGE MARLA GRAFF DECKER

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS

Randolph T. West, Judge Designate

J. Ashton Wray, Jr. (Law Office of J. Ashton Wray, Jr., on briefs), for appellant.

David M. Uberman, Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Stephon Jermain Turner (the appellant) was convicted in a bench trial of carrying a concealed weapon in violation of Code § 18.2-308. On appeal, he argues that the evidence is insufficient to support the conviction. We hold that the evidence is sufficient and affirm the appellant's conviction.¹

I. BACKGROUND

In the early morning hours of March 10, 2012, while on an unrelated call for service, Sergeant Petrosky and other officers of the Newport News Police Department had a chance encounter with the appellant and his cousin, Anthony Curtis. Sergeant Petrosky, whileattempting to drive away from the area, was unable to do so because Curtis stepped into the street, blocking Petrosky from passing. Curtis eventually moved out of the street, went to a parked blue Chevrolet, and opened the driver's door. When Curtis continued to behave belligerently, an officer on the scene arrested him for being drunk in public. At that time, the appellant was sitting in the front passenger's seat of the same parked vehicle, and an unidentified man was in the rear passenger's seat on the driver's side.

Sergeant Petrosky approached the driver's side of the vehicle to speak with the back-seat passenger and radioed for assistance with the front-seat passenger. Detective Gibson responded to the location and approached the front passenger's side of the car where the appellant was sitting. Gibson saw a partial box of .45 caliber ammunition lying open in the back seat. He asked the appellant to get out of the car.

Once the appellant was out of the car, Detective Gibson saw a Taurus .45 caliber handgun on the front bench seat to the left of where the appellant had been seated. A photograph showed that the handgun was partially concealed by a plastic bottle and pack of cigarettes but that a portion of the trigger guard and the barrel were clearly visible. Gibson also saw a second firearm, a Makarov 9 millimeter handgun, on the passenger's floorboard "in the area where [the appellant's] feet were positioned." A photo showed, and Gibson confirmed, that the 9 millimeter weapon on the floorboard was "just beyond the cusp of where the seat sticks out." That photo also showed that when viewed from the open passenger door, the 9 millimeter handgun was not obscured by the seat or anything else on the floorboard, which was bare except for the floor mat that lay beneath the gun.² Both weapons were loaded, and each had a round in the chamber.

Underneath the front passenger's seat, Gibson found a black nylon holster with a slot for a spare magazine. Although the holster was in close proximity to the Makarov 9 millimeter handgun on the floorboard, it contained a loaded magazine for the Taurus .45 caliber handgun that was in the center of the front seat.³ Gibson also found five "loose" .45 caliber cartridges inside the "open compartment" of the front passenger's door where the appellant was seated.⁴

The appellant presented evidence on his behalf. His cousin Curtis testified that the guns that were found in his car belonged to him. He said that when he was leaving a nearby club, he was intoxicated and "got into it with the officer" as he was attempting to enter his car. According to Curtis, the appellant had just gotten into the car when he arrived. Curtis also suggested that the appellant was not aware that the guns were in the car. Further, he claimed that his car's interior light was "kind of messed up" and that the light did not come on when the door was opened.⁵ When asked about the holster beneath the passenger's seat, Curtis testified, "It goes to the .9 Makarov." On cross-examination, Curtis stated that he did not know the appellant was in his car and did not see him until he woke up in jail and saw him there. Curtis also testified that he was not aware that someone else was in the back seat of his car.

The appellant testified in his own defense. He told the court that he went to the club that night and when he was denied entrance into the establishment due to his age, he found his cousin's car, got into the vehicle, and waited for his cousin to return. He claimed that he wasdrunk at that time. According to the appellant, when he opened the front passenger's door to get into the car, the interior light did not work. He denied seeing either the gun on the front seat or the gun on the front passenger's floorboard. The appellant claimed that he did not know that the firearms were in the car. He also testified that he did not know that anyone was in the back seat of the car.

The appellant moved to strike the evidence at the close of the Commonwealth's case and renewed that motion at the end of trial. He argued that his mere proximity to the guns and his presence in the car did not prove beyond a reasonable doubt that he constructively possessed the firearms. The trial court denied the motions to strike, convicted the appellant of carrying a concealed weapon, and sentenced him to twelve months in jail, with six months suspended, and a $200 fine.

II. ANALYSIS

A. Standard of Review

The appellant challenges the sufficiency of the evidence to prove that he constructively possessed either weapon.⁶ The standard of review on appeal is well settled. This Court considers "the evidence presented at trial in the light most favorable to the Commonwealth, the prevailing party below." Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008). "Viewing the record through this evidentiary prism requires [this Court] to 'discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn [from that evidence].'" Cooper v. Commonwealth, 54 Va. App. 558, 562, 680 S.E.2d 361, 363 (2009) (quoting Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980)). We willaffirm the judgment of the trier of fact unless it is "plainly wrong or without evidence to support it." Bolden, 275 Va. at 148, 654 S.E.2d at 586.

Critical to our analysis is that this Court applies a very specific standard of review on appeal and does not substitute as the trier of fact, who was in the position to see and hear the witnesses as they testified, and to make credibility determinations. Consequently, decisions regarding the credibility of the witnesses and the weight of the evidence are matters left solely to the fact finder below. Redmond v. Commonwealth, 57 Va. App. 254, 265, 701 S.E.2d 81, 86 (2010). Further, "[i]t is firmly imbedded in the law of Virginia that the credibility of a witness who makes inconsistent statements on the stand is a question for the . . . trier of [fact] . . . ." Swanson v. Commonwealth, 8 Va. App. 376, 378-79, 382 S.E.2d 258, 259 (1989).

Additionally, when reviewing a case, this Court "does not 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'" Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d 384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Instead, the question is "'whether . . . 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) (emphasis added) (quoting Jackson, 443 U.S. at 319). Summarized succinctly, it is the trier of fact, not the appellate court, that resolves conflicts in testimony, weighs the evidence, and draws reasonable inferences "'from basic facts to ultimate facts.'" Id. at 257-58, 584 S.E.2d at 447 (quoting Jackson, 443 U.S. at 319).

Finally, when a conviction is based on circumstantial evidence, "'all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and [must] exclude every reasonable hypothesis of innocence.'" Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865, 867 (1982) (quoting Inge v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d563, 567 (1976)). Again, however, under longstanding appellate principles, whether an "alternative hypothesis of innocence is reasonable" is a question of fact that will be reversed on appeal only if plainly wrong. Stevens v. Commonwealth, 38 Va. App. 528, 535, 567 S.E.2d 537, 540 (2002). "Merely because [a] defendant's theory of the case differs from that taken by the Commonwealth does not mean that every reasonable hypothesis consistent with his innocence has not been excluded. What weight should be given evidence [remains] a matter for the [fact finder] to decide." Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964). The appellate court asks only whether a reasonable finder of fact could have rejected the defense theories and found the defendant guilty beyond a reasonable doubt. Jordan v. Commonwealth, 273 Va. 639, 646, 643 S.E.2d 166, 170 (2007).

B. Law of Constructive Possession

The appellant was convicted based on the conclusion that he constructively possessed at least one of the firearms found in Curtis' vehicle.⁷ "The principles that govern constructive possession of illegal drugs also apply to constructive possession of a firearm." Grier v. Commonwealth, 35 Va. App. 560, 570, 546 S.E.2d 743, 747 (2001). Thus, "[a] conviction for the unlawful possession of a firearm can be supported exclusively by evidence of constructive possession . . . ." Bolden, 275 Va. at 148, 654 S.E.2d at 586. Our Supreme Court has explained that "'the issue [of what constitutes constructive possession] is largely a...