Present: Koontz, Kinser, Lemons, Goodwyn, and Millette, JJ.,
and Carrico and Russell, S.JJ.
WILLIAM S. SMALLWOOD
v. Record No. 082228 OPINION BY JUSTICE DONALD W. LEMONS
November 5, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Following a bench trial upon an indictment charging
possession of a firearm after having been convicted of a
felony in violation of Code § 18.2-308.2, William S. Smallwood
(“Smallwood”) was convicted and sentenced to five years’
imprisonment with three years suspended. In this appeal, we
consider whether the Commonwealth presented sufficient
evidence to support Smallwood’s conviction.
I. FACTS AND PROCEEDINGS BELOW
On or about July 27, 2007, Smallwood was driving a
vehicle in Cumberland County, accompanied in the front
passenger seat by Crystal B. Barnett (“Barnett”). At
approximately one o’clock in the morning, the vehicle was
stopped pursuant to a “road check.” Deputy Sheriff James F.
Lampkin (“Deputy Lampkin”) testified that he approached the
vehicle and “smelled a strong odor of alcohol coming from the
vehicle.” Deputy Lampkin had Smallwood pull over to the side
of the road for further investigation. Deputy Lampkin
determined that Barnett was the one that had been drinking
alcohol, and not Smallwood.
Deputy Sheriff Michael Boggs (“Deputy Boggs”) approached
the rear of the vehicle “for safety reasons.” Deputy Boggs
testified that he “shined [his] flashlight, and inside [he]
saw a weapon that was in the console.” It “[s]eemed to be a
.38 revolver.” Deputy Boggs described the vehicle as “small”
and he testified that the “weapon was . . . right there in
plain view.” After Deputy Boggs alerted Deputy Lampkin to the
weapon’s presence, Deputy Lampkin “got the weapon out, [and]
put it on top of the car.” Deputy Lampkin described the
weapon as a “small .38 silver revolver.”
Deputy Lampkin testified that the weapon was “in the
console, between the console right beside [Smallwood’s] right
leg.” He further described the vehicle as “small” and the
gun’s location as “an open console between the seats where you
could just lay something, like a little section. It was small
in between two bucket seats.” The firearm was not concealed.
At the scene, Deputy Lampkin asked Smallwood about the
firearm. Deputy Lampkin testified that:
[Smallwood] told me that he thought it was
fine. The gun was [Barnett’s] gun . . . and he
thought it was fine as long as she was in the
car, with the car; that it was her
responsibility to have the gun with her; that
it wouldn’t fall on him.
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Following the deputies’ testimony, the Commonwealth
introduced evidence of Smallwood’s two previous felony
convictions. The Commonwealth then rested its case and
Smallwood moved to strike the evidence, arguing that the
Commonwealth, in its proof of constructive possession, failed
to show that Smallwood “actually had dominion and control over
the weapon.” The trial court denied the motion to strike,
stating that “[w]hat the law requires is for a prima facie case
he was aware of the presence and the character of the firearm
and that it was subject to his dominion and control. It
doesn’t have to be exclusive possession.”
Barnett then testified that she owned both the car and the
firearm. Barnett and Smallwood had been in the car “[p]robably
around six, seven hours” and “[i]n that period of time the gun
was in the console in plain view on the console that entire
time.” Barnett testified that she had placed the firearm in
the console. During their time in the vehicle, Barnett and
Smallwood made stops and had gotten in and out of the vehicle.
She testified that she had been drinking that evening and
that was the reason why Smallwood was driving. She testified
that she did not tell Smallwood about the firearm and he did
not “ever use it or touch it . . . in any way.” The firearm
was “in the console and it stayed there the whole time.”
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Barnett testified that she normally kept the firearm in
plain view on the console because she had applied for a
concealed weapon permit but had not received one. She
testified that she has “always carried [the firearm] after
[she] got assaulted.” At the conclusion of Barnett’s
testimony, the defense rested and renewed its motion to strike.
The trial court again denied the motion.
The trial court found Smallwood guilty of felony
possession of a firearm after having been convicted of a felony
in violation of Code § 18.2-308.2 and sentenced him to five
years’ imprisonment with three years suspended. Smallwood
timely filed his notice of appeal. The Court of Appeals, per
curiam, denied his petition for appeal. Smallwood timely filed
his notice of appeal to this Court and we awarded an appeal on
the following assignment of error:
It was error for the Court of Appeals to fail
to overturn the trial court ruling and the
trial court erred in ruling that there was
sufficient evidence to convict the defendant of
one count of felony possession of a firearm
after having been previously convicted of a
felony.
II. ANALYSIS
A. Standard of Review
“Under well-settled principles of appellate review, we
consider the evidence presented at trial in the light most
favorable to the Commonwealth, the prevailing party below.”
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Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586
(2008). “We also accord the Commonwealth the benefit of all
inferences fairly deducible from the evidence.” Riner v.
Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004).
“When reviewing the sufficiency of the evidence to support a
conviction, the Court will affirm the judgment unless the
judgment is plainly wrong or without evidence to support it.”
Bolden, 275 Va. at 148, 654 S.E.2d at 586.
B. Constructive possession
In this appeal we consider whether the evidence was
sufficient to convict Smallwood under Code § 18.2-308.2.
Smallwood argues that the “Commonwealth has only proven that
Mr. Smallwood knew of the weapon’s presence and not that he
exercised dominion and control over the firearm.” However,
Smallwood misapprehends established principles of constructive
possession.
Code § 18.2-308.2 provides in relevant part that “[i]t
shall be unlawful for . . . any person who has been convicted
of a felony . . . to knowingly and intentionally possess . . .
any firearm.” We first held that constructive — rather than
actual — possession of contraband was sufficient to obtain a
criminal conviction in Ritter v. Commonwealth, 210 Va. 732,
741, 173 S.E.2d 799, 806 (1970). Ritter involved the delivery
to a mailbox “used by defendant and other members of his
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family” of a package containing marijuana, the contents of
which Ritter identified after the package was presented to
him. Id. “When asked if the marijuana were his, Ritter
responded: ‘It must be mine, it’s got my name on it.’ ” Id.
at 742, 173 S.E.2d at 806.
In Ritter, the Court outlined the guiding principles of
the doctrine of constructive possession. First, the Court
noted that “it generally is necessary to show that [the]
defendant was aware of the presence and character of the
particular substance.” Id. at 741, 173 S.E.2d at 805. Next,
the Court noted that possession may be joint: “the possession
need not always be exclusive. The defendant may share it with
one or more.” Id., 173 S.E.2d at 806. Finally, the Court
held that “[t]he defendant may be shown to have had
constructive possession by establishing that the drugs
involved were subject to his dominion and control.” Id.
We cautioned that “the issue [of what constitutes
constructive possession] is largely a factual one and must be
established by evidence of the acts, declarations and conduct
of the accused.” Id. at 743, 173 S.E.2d at 807. We held that
“[w]hen [the package containing marijuana was] delivered by
the postal authorities and deposited in the mailbox under the
joint use and control of defendant and his family, it had
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reached its destination, and defendant was then in
constructive possession.” Id. at 742, 173 S.E.2d at 807.
Much more recently, in Bolden we affirmed the principles
of constructive possession announced in Ritter.
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. 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. 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.
Bolden, 275 Va. at 148, 654 S.E.2d at 586 (citations and
quotations omitted).
When these principles are applied to the present case, it
is clear there was sufficient evidence to support Smallwood’s
conviction. Smallwood’s own statements establish that he was
aware of the presence and character of the firearm. And even
without his admission, it strains credulity that someone
entering and exiting a small vehicle over a period of six or
seven hours would fail to notice a “small .38 silver revolver”
that was “in plain view.”
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Smallwood argues that he “could not have exercised
dominion and control over the gun when the gun was under the
dominion and control of Ms. Barnett at all times.” Further,
Smallwood argues that “Barnett’s testimony excludes the
possibility of joint possession” because “Smallwood never
touched or manipulated the weapon in any way.”
As we noted in Ritter, the issue of constructive
possession “is largely a factual one and must be established
by evidence of the acts, declarations and conduct of the
accused.” 210 Va. at 743, 173 S.E.2d at 807. According the
Commonwealth the benefit of all inferences fairly deducible
from the evidence, Bolden, 275 Va. at 148, 654 S.E.2d at 586,
the record clearly supports the finding that the firearm in
Barnett’s car was “subject to” Smallwood’s dominion and
control.
Both deputies described the vehicle as small. Barnett
acknowledged that the firearm was “in plain view” during the
entire six or seven hours in which she and Smallwood occupied
the vehicle. The firearm rested on an open console “right
beside [Smallwood’s] right leg.” In an instant, Smallwood
could have had actual, exclusive possession of the firearm and
Smallwood’s access to the firearm was not restricted in any
way.
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While Barnett’s ownership of the firearm is relevant to
the inquiry, it is not dispositive. “Possession and not
ownership is the vital issue. Possession may be joint or
several. Two or more persons may be in possession where each
has the power of control and intends to exercise control
jointly.” Burnette v. Commonwealth, 194 Va. 785, 792, 75
S.E.2d 482, 487 (1953).
For the same reasons, Smallwood’s argument that the
Commonwealth failed to exclude “all reasonable hypotheses of
innocence” must fail. “The statement that circumstantial
evidence must exclude every reasonable theory of innocence is
simply another way of stating that the Commonwealth has the
burden of proof beyond a reasonable doubt.” Commonwealth v.
Hudson, 265 Va. 505, 513, 578 S.E.2d 781, 785 (2003).
In a joint constructive possession case, the focus is on
the “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.” Bolden, 275
Va. at 148, 654 S.E.2d 586 (emphasis added). As in Bolden,
here the contraband was “open and obvious to someone looking
in the vehicle, and it was located in immediate proximity to
where [the defendant] had been sitting.” Id. at 149, 654
S.E.2d at 586.
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III. CONCLUSION
Accordingly, we hold that the evidence was sufficient to
support Smallwood’s conviction under Code § 18.2-308.2 and we
will affirm the judgment of the Court of Appeals.
Affirmed.
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