Present: Keenan, Koontz, Kinser, Lemons, Goodwyn, and Millette,
JJ., and Lacy, S.J.
LAMONT D. WRIGHT
v. Record No. 090308 OPINION BY SENIOR JUSTICE
ELIZABETH B. LACY
COMMONWEALTH OF VIRGINIA NOVEMBER 5, 2009
FROM THE COURT OF APPEALS OF VIRGINIA
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
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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
1
Wright’s appeals to the Court of Appeals and this Court
included a challenge to the constitutionality of the search of
his person and house. Neither Court granted an appeal on this
issue.
3
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
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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
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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) (constructive possession of
drugs); Ritter v. Commonwealth, 210 Va. 732, 741, 173 S.E.2d
799, 805-06 (1970) (constructive possession of drugs). Nothing
in Code § 18.2-308.4(C) alters or suggests an intent to alter
this principle. Accordingly, in Bolden v. Commonwealth, 275 Va.
144, 654 S.E.2d 584 (2008), when considering a violation of
Subsection (C) of Code § 18.2-308.4 based on constructive
possession of a firearm we recited the well-established general
rule:
To establish constructive possession of the firearm
by a defendant, “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. at 148, 654 S.E.2d at 586 (quoting Rawls, 272 Va. at 349,
634 S.E.2d at 705).
Wright also argues that the trial court and the Court of
Appeals erred in concluding that sufficient evidence was
produced to show that he possessed the firearm while committing
the offense of possession of cocaine with the intent to
distribute or to show a nexus between the possession of the
firearm and the criminal act. Wright’s arguments are based
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primarily on his premise that the crime of possession of cocaine
with intent to distribute occurred while he was in or at his car
on Suburban Parkway and the police recovered some cocaine.
However, at Wright’s direction and in his presence, cocaine was
also found in his bedroom along with the firearm. The
indictment charging a violation of Code § 18.2-308.4(C) did not
limit the charge to Wright’s possession of cocaine with intent
to distribute while in his automobile on Suburban Parkway.
Trial testimony established that both the cocaine recovered from
Wright at the time of his initial arrest and “everything
combined,” which included the cocaine recovered at Wright’s
home, the gun, the packaging material, and the scale, along with
the absence of items to use cocaine, supported the conclusion
that the cocaine was not for personal use. Taking the evidence
in the light most favorable to the Commonwealth, the prevailing
party below, Riley v. Commonwealth, 277 Va. 467, 482-83, 675
S.E.2d 168, 177 (2009), we conclude that the evidence recovered
at Wright’s house was sufficient to establish that Wright
constructively possessed the firearm while constructively
possessing cocaine with the intent to distribute. 2
Finally, we need not address Wright’s arguments that the
evidence was insufficient to establish a nexus between the
2
Wright’s challenge is limited to the issue of possession
of the firearm. His conviction for possession of cocaine with
intent to distribute is not the subject of this appeal.
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possession of the firearm and the unlawful activity. The Court
of Appeals held that “the statute requires proof of a nexus
between the firearm and the drugs that the defendant actually or
constructively possesses.” Wright, 53 Va. App. at 282, 670
S.E.2d at 780. However, nothing in Code § 18.2-308.4(C)
contains such a requirement. 3 As stated above, the terms
“simultaneously” and “while” have a temporal meaning. Neither
of these words nor any other language used in the statute
carries with it the requirement that the firearm is in some way
being used in conjunction with the unlawful drug activity or to
further such activity. The General Assembly has criminalized
the possession of a firearm in conjunction with other
circumstances without regard to whether the firearm is utilized
for any purpose connected to such circumstances. See, e.g.,
Code § 18.2-308.1(B) (possession on school grounds); Code
§ 18.2-308.2 (possession by a felon); Code § 18.2-308.2:01
(possession by a non-citizen). In the absence of any statutory
language supporting the requirement of a “nexus” between the
possession of the firearm and the illegal activity, we cannot
impose such a requirement in prosecutions under this Code
section. Compare the very different language found in a federal
3
Although the record reflects that the Commonwealth
apparently “conceded” that the statute contained a nexus
requirement, the issue is a question of law which is not subject
to a concession binding on this Court. Tuggle v. Commonwealth,
230 Va. 99, 111 n.5, 334 S.E.2d 838, 846 n.5 (1985).
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provision, 18 U.S.C. § 924(c)(1)(A)(2006 & Supp. I 2007)(“any
person who, during and in relation to any . . . drug trafficking
crime . . . in furtherance of any such crime, possesses a
firearm” shall be sentenced to imprisonment in addition to the
sentence for the drug trafficking crime)(emphasis added).
Accordingly, for the reasons expressed in this opinion, we
will affirm the judgment of the Court of Appeals.
Affirmed.
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