COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Frank
Argued at Salem, Virginia
TRACY ANTONIO DAVIS
OPINION BY
v. Record No. 2667-01-3 JUDGE ROSEMARIE ANNUNZIATA
OCTOBER 15, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE
Charles M. Stone, Judge
Joseph R. Winston, Special Appellate Counsel
(Public Defender Commission, on briefs) for
appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
The trial court convicted Tracy Antonio Davis of possession
of cocaine and possession of a firearm while in possession of
cocaine. The court sentenced him to two years and five years in
prison respectively. The court also found that Davis had
violated probation on a previously suspended sentence. It
consequently revoked the six-year suspended sentence and
re-suspended five years, giving him one year to serve. On
appeal, Davis contends that: (1) the evidence was insufficient
to prove that he possessed a firearm; and (2) the trial court
erroneously revoked his previously suspended sentence because
the court based the revocation on the conviction at issue on
appeal. For the following reasons, we affirm the decision of
the trial court.
Background
On appeal, we view the evidence in the light most favorable
to the Commonwealth, the party prevailing below, together with
all reasonable inferences that may be drawn. Ortega v.
Commonwealth, 31 Va. App. 779, 786, 525 S.E.2d 623, 627 (2000)
(citing Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d
826, 831 (1997)) (additional citation omitted). On January 16,
2001, Officers Haynes, Coleman and Shumate of the Martinsville
Police Department found Davis standing about three feet into a
roadway, making it necessary for vehicles to swerve to avoid
hitting him. Haynes told Davis to move from the roadway. He
told Davis he wanted to speak with him and planned to issue him
a summons for a violation of Code § 46.2-928.
Davis "took off running." Officer Coleman pursued Davis on
foot, and ultimately tackled him to the ground. As a result,
Davis' "baggy jeans" slid down to his legs. Coleman handcuffed
Davis and led him to the police car, where he was kept in
custody by another officer. Upon searching the area where Davis
had fallen, Coleman recovered a stainless steel semi-automatic
Fire Star .45 caliber handgun, with a loaded magazine and one
round in the chamber. Coleman had not seen any weapons in the
area before or during the chase of Davis. Additionally, Coleman
never lost sight of the unoccupied area after tackling and
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handcuffing Davis. At trial, Davis was found guilty of
possession of cocaine found in the back seat of the car where he
had been sitting. 1 Based on his past record, which also included
two convictions for driving with a suspended license, and the
new convictions, the court revoked Davis' six-year suspended
sentence and re-suspended five years.
Davis first contends that the evidence was insufficient to
convict him of the firearm charge. He argues that the
Commonwealth must present an unbroken chain of circumstantial
evidence to sustain a conviction, citing Brown v. Commonwealth,
211 Va. 252, 254, 176 S.E.2d 813, 814 (1970).
Davis further asserts that the trial court erred in
revoking his previously suspended sentence because the court
based the revocation on his subsequent conviction, which is the
basis of this appeal. He contends that we should reverse his
underlying conviction and the consequent revocation order as
well. See Resio v. Commonwealth, 29 Va. App. 616, 622, 513
S.E.2d 892, 895 (1999) (holding that if the Commonwealth relies
solely upon a criminal conviction "to establish the reasonable
cause necessary to revocation," the fate of the underlying
conviction will determine the outcome of an appeal of a
revocation order).
1
We denied Davis' petition for appeal with regard to his
conviction of possession of cocaine.
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Analysis
When sufficiency of the evidence is challenged on appeal,
we consider the evidence "in the light most favorable to the
Commonwealth, the prevailing party, and grant to it all
reasonable inferences fairly deducible therefrom." Hagy v.
Commonwealth, 35 Va. App. 152, 157, 543 S.E.2d 614, 616 (2001)
(citation omitted). Furthermore, "we presume the judgment of
the trial court to be correct," Broom v. Broom, 15 Va. App. 497,
504, 425 S.E.2d 90, 94 (1992), and "will not set it aside unless
it is plainly wrong or without evidence to support it." Dodge
v. Dodge, 2 Va. App. 238, 242, 343 S.E.2d 363, 365 (1986).
Circumstantial evidence is sufficient to sustain a finding
of guilt if it excludes those reasonable hypotheses of innocence
that "flow from the evidence, not those that spring from the
imagination of the defendant." Hamilton v. Commonwealth, 16
Va. App. 751, 755, 433 S.E.2d 27, 29 (1993). Whether a
hypothesis of innocence is reasonable is a finding of fact,
binding on appeal, unless plainly wrong. See Glasco v.
Commonwealth, 26 Va. App. 763, 774, 497 S.E.2d 150, 155 (1998),
aff'd, 257 Va. 433, 513 S.E.2d 137 (1999).
"[T]he possession necessary to support a conviction for
the possession of a firearm may be actual or constructive."
Grier v. Commonwealth, 35 Va. App. 560, 570, 546 S.E.2d 743,
747-48 (2001). Constructive possession may be established by
evidence of acts, statements or conduct of the accused, or other
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circumstances that show the defendant was aware of the presence
and character of the weapon and that he exerted control and
dominion over it. Id.
For a conviction to rest properly on circumstantial
evidence, an unbroken chain of circumstances proving the
defendant's guilt must be established. See Gordon v.
Commonwealth, 212 Va. 298, 300, 183 S.E.2d 735, 737 (1971). In
Gordon, the police observed the defendant holding a manila
envelope before a chase ensued. When the police caught the
defendant, he no longer had the envelope. Police later
recovered a manila envelope containing drug paraphernalia in the
area where the chase occurred. The Supreme Court held the
evidence insufficient to prove possession. A "fatal gap in
circumstantial evidence" arose in Gordon because no one observed
the defendant dispose of the envelope during the chase, and the
police recovered it near a "fairly busy" street after a period
of time had elapsed. See id. at 300-01, 183 S.E.2d at 737.
The holding in Gordon is distinguishable and is not
dispositive of the issue presented in this appeal. First, the
police in Gordon discovered the drugs near a "fairly busy"
street, while in the instant case, Haynes found the firearm in a
relatively private area where no other individuals were seen
prior to the time Davis was tackled to the ground. Davis
conceded at oral argument that the gun was not placed in the
area after his struggle with the police. Additionally, the
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chase in Gordon occurred at approximately 2:15 p.m. in the
afternoon. In the case at bar, the police chased and arrested
Davis after 10:00 p.m. See Johnson v. Commonwealth, 12 Va. App.
150, 153, 402 S.E.2d 502, 504 (1991) (finding no break in the
chain of circumstances, partly distinguishing Gordon on the
grounds that the drugs were found in a "relatively private
area").
Second, the officer found the firearm at the exact location
where he tackled Davis and where Davis' "baggy jeans" fell
around his legs. No firearm was present in the area before or
during Coleman's pursuit of Davis, and Coleman never lost sight
of the area after he tackled Davis. These facts support the
inference that Davis had the firearm on his person and that it
fell from his pants when he was tackled. See Powell v.
Commonwealth, 27 Va. App. 173, 178-79, 497 S.E.2d 899, 901
(1998) (holding that the fact the drugs were found precisely
where the appellant would have dropped an object supports the
inference that he possessed the drugs and discarded them behind
his back). Conversely, in Gordon, the police lost sight of the
defendant twice during their pursuit, had not observed him
discard the envelope, and did not find the envelope near the
defendant when they arrested him.
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Accordingly, we find the evidence was sufficient to support
Davis' conviction beyond a reasonable doubt. 2
Affirmed.
2
Having found the trial court did not err in convicting
Davis of possession of a firearm while in possession of cocaine,
we also find that Davis' claim that the trial court erroneously
considered the conviction in revoking Davis' suspended sentence
is without merit.
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