Wright v. Com.

• Decision Date: 05 November 2009
• Docket Number: Record No. 090308.
• Parties: Lamont D. WRIGHT v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

685 S.E.2d 655

278 Va. 754

Lamont D. WRIGHT v. COMMONWEALTH of Virginia.

Record No. 090308.

Supreme Court of Virginia.

November 5, 2009.

Joseph A. Sadighian, Senior Assistant Appellate Defender, for appellant.

Joshua M. Didlake, Assistant Attorney General (William C. Mims, Attorney General, on brief), for appellee.

Present: KEENAN, KOONTZ, KINSER, LEMONS, GOODWYN, and MILLETTE, JJ., and LACY, S.J.

OPINION BY Senior Justice ELIZABETH B. LACY.

In this appeal we consider whether a conviction under Code § 18.2-308.4(C) for possession of a firearm while possessing a controlled substance with the intent to distribute, requires proof of actual, simultaneous possession of the firearm and controlled substance, or if a conviction can be sustained by proving constructive possession of the firearm and drugs.

FACTS AND PROCEEDINGS

Detective G.B. Smith of the Portsmouth Police Department received a tip from a confidential informant that Lamont D. Wright was distributing cocaine from his black Beretta vehicle on Suburban Parkway in Portsmouth. Smith located and confronted Wright, told him about the informant's information and advised him of his Miranda rights. Because Smith had encountered Wright in possession of a firearm two days earlier, Smith asked Wright if he had the firearm. Wright told Smith that the firearm was at his house. In answer to Smith's questions, Wright denied that he had any cocaine. When Smith searched Wright, he found two small bags that contained a total of five grams of cocaine.

While transporting Wright to his office, Smith asked Wright to cooperate, told Wright that they would have to go back to his house and retrieve his gun, and asked Wright if he had any additional cocaine or a scale. Wright admitted that he had another bag of cocaine in his shoe, which the police retrieved. That bag contained approximately two grams of cocaine. Wright also told Smith that his gun was near the rail of his bed in his bedroom, that a scale was in a dresser drawer, and that about 125 grams of crack cocaine were in the room.

Smith took Wright to his house, which was approximately five miles from the location of the original stop. In Wright's room, police located the gun near the bed, the scales in a dresser drawer, and, at Wright's direction, approximately 117 grams of cocaine in a pocket of his clothing hanging in a closet. Some plastic bags "with corners missing" and ammunition were also found in the room.

Wright was indicted for one count of possession of a controlled substance with the intent to distribute, a violation of Code § 18.2-248, and one count of possession of a firearm while in possession of a controlled substance with the intent to distribute, a violation of Code § 18.2-308.4(C). At trial a police officer expert testified that the amount of cocaine found on Wright's person was inconsistent with personal use and that "everything combined" was inconsistent with personal use. The expert stated that the gun was something "that you normally find with people that are doing something other than using drugs." The trial court convicted Wright on both charges, sentenced Wright to five years for each charge, and suspended five years of the sentence.

In Wright's appeal to the Court of Appeals, he argued, as relevant here, that a conviction under Code § 18.2-308.4(C) requires the Commonwealth to prove actual, simultaneous possession of both the drugs and the firearm.¹ The Court of Appeals rejected this argument, holding that constructive possession of either or both the drugs and the firearm was sufficient but that "the statute requires proof of a nexus between the firearm and the drugs that the defendant actually or constructively possesses." Wright v. Commonwealth, 53 Va.App. 266, 282, 670 S.E.2d 772, 780 (2009). The Court of Appeals concluded that the evidence was sufficient to satisfy this standard and affirmed Wright's conviction. Id. at 282-87, 670 S.E.2d at 780-82. Wright timely appealed to this Court.

DISCUSSION

Wright argues here, as he did in the Court of Appeals, that Code § 18.2-308.4(C) requires actual, simultaneous possession of the firearm and the controlled substance with the intent to distribute. According to Wright, when he was stopped by Officer Smith and arrested for possession of cocaine with intent to distribute, the firearm was not in his possession but miles away at his house and, therefore, the trial court and Court of Appeals erred in basing his conviction on constructive possession of the firearm.

Code § 18.2-308.4 provides in relevant part:

A. It shall be unlawful for any person unlawfully in possession of a controlled substance classified in Schedule I or II of the Drug Control Act (§ 54.1-3400 et seq.) of Title 54.1 to simultaneously with knowledge and intent possess any firearm....

B. It shall be unlawful for any person unlawfully in possession of a controlled substance classified in Schedule I or II of the Drug Control Act (§ 54.1-3400 et seq.) to simultaneously with knowledge and intent possess any firearm on or about his person....

C. It shall be unlawful for any person to possess, use, or attempt to use any pistol, shotgun, rifle, or other firearm or display such weapon in a threatening manner while committing or attempting to commit the illegal manufacture, sale, distribution, or the possession with the intent to manufacture, sell, or distribute a controlled substance classified in Schedule I or Schedule II of the Drug Control Act (§ 54.1-3400 et seq.) of Title 54.1 or more than one pound of marijuana....

(Emphasis added.)

Wright argues that the use of the word "while" in Subsection (C) rather than "simultaneously" which is used in Subsections (A) and (B) shows a legislative intent to treat the simple possession of drugs differently than possession with the intent to distribute. That difference, according to Wright, is to limit the use of constructive possession of a firearm to circumstances in which the defendant possesses the firearm and the drugs he intended to distribute at the same time and place.

Statutory interpretation is a question of law which we review de novo, and we determine the legislative intent from the words used in the statute, applying the plain meaning of the words unless they are ambiguous or would lead to an absurd result. Washington v. Commonwealth, 272 Va. 449, 455, 634 S.E.2d 310, 313-14 (2006). Nothing in Code § 18.2-308.4 suggests the construction advanced by Wright. There can be no dispute that the purpose of the legislation was to establish three categories of crimes relating to possession of controlled substances and firearms at the same time. Although the General Assembly chose to use the word "while" in Subsection (C) rather than "simultaneously" which it used in Subsections (A) and (B), there is no meaningful difference between the two words. "While" is defined as "during the time that," and "simultaneous" is defined as "existing or occurring at the same time." Webster's Third New International Dictionary 2604, 2122 (1993). Thus, both have the temporal meaning of "at the same time."

Furthermore, 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. See, e.g., 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) (...