COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judges Elder and Kelsey
Argued at Richmond, Virginia
DERMAINE TRYELLE SHELTON
MEMORANDUM OPINION* BY
v. Record No. 3012-03-2 JUDGE LARRY G. ELDER
MARCH 1, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Michael C. Allen, Judge
Todd M. Ritter (Daniels & Morgan, on brief), for appellant.
Josephine F. Whalen, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
Dermaine Tryelle Shelton (appellant) appeals from his convictions for possession of
cocaine, possession of a firearm while in possession of cocaine, possession of a firearm by a
convicted felon, identity theft, and driving after having been declared an habitual offender. On
appeal, he contends the seizure and search that yielded evidence of these offenses violated the
Fourth Amendment and, thus, that the court erroneously denied his motion to suppress. He also
contends the evidence was insufficient to support the convictions involving firearms possession
because the evidence failed to show he constructively possessed the firearm protruding from
beneath the seat of the vehicle he was driving. We hold the evidence supported the trial court’s
denial of appellant’s motion to suppress and its conviction of him for the challenged firearms
offenses. Thus, we affirm.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
I.
A.
MOTION TO SUPPRESS BASED ON STOP OF VEHICLE
At a hearing on a defendant’s motion to suppress, the Commonwealth has the burden of
proving that a warrantless search or seizure did not violate the defendant’s Fourth Amendment
rights. Simmons v. Commonwealth, 238 Va. 200, 204, 380 S.E.2d 656, 659 (1989). On appeal,
we view the evidence in the light most favorable to the prevailing party, granting to it all
reasonable inferences fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991). “We are bound by the trial court’s findings of historical
fact unless ‘plainly wrong’ or without evidence to support them[,] and we give due weight to the
inferences drawn from those facts by resident judges and local law enforcement officers.”
McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing
Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911 (1996)).
However, we review de novo the trial court’s application of defined legal standards to the
particular facts of the case. Shears v. Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309,
311 (1996); see Ornelas, 517 U.S. at 699, 116 S. Ct. at 1663.
A police officer may conduct an investigatory stop of a motor vehicle if he has
“articulable and reasonable suspicion” that the operator is unlicensed, the vehicle is unregistered,
or the vehicle or an occupant is otherwise subject to seizure for violating the law. Murphy v.
Commonwealth, 9 Va. App. 139, 143, 384 S.E.2d 125, 127 (1989) (citing Delaware v. Prouse,
440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660 (1979)). “Motor vehicles operating on
the highways of this State are required to comply with the statutes relating to lighting equipment
in effect at the time of their operation.” Hall v. Hockaday, 206 Va. 792, 798, 146 S.E.2d 215,
219 (1966). Therefore, a police officer who has “articulable and reasonable suspicion” that the
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lighting equipment on a particular vehicle does not comply with relevant statutes may conduct an
investigatory stop of that motor vehicle and its driver in order to confirm or dispel his suspicion.
To determine whether an officer has articulated a reasonable basis
to suspect criminal activity, a court must consider the totality of the
circumstances, including the officer’s knowledge, training, and
experience. “[A] trained law enforcement officer may [be able to]
identify criminal behavior which would appear innocent to an
untrained observer.”
Freeman v. Commonwealth, 20 Va. App. 658, 661, 460 S.E.2d 261, 262 (1995) (quoting Taylor
v. Commonwealth, 6 Va. App. 384, 388, 369 S.E.2d 423, 425 (1988)) (citation omitted).
Code § 46.2-1020 provides in relevant part as follows:
Any motor vehicle may be equipped with one or two fog
lights, one or two auxiliary driving lights if so equipped by the
manufacturer, two daytime running lights, two side lights of not
more than six candlepower, an interior light or lights of not more
than 15 candlepower each, and signal lights.
* * * * * * *
Unless such lighting device is both covered and unlit, no
motor vehicle which is equipped with any lighting device other
than lights required or permitted in this article, required or
approved by the Superintendent, or required by the federal
Department of Transportation shall be operated on any highway in
the Commonwealth. Nothing in this section shall permit any
vehicle, not otherwise authorized, to be equipped with colored
emergency lights, whether blinking or steady-burning.
(Emphasis added).
Here, appellant contends he was seized when State Trooper R.T. Hankins raised his hand
toward appellant when he first crossed in front of appellant’s vehicle and that the trooper’s
observation of the lights on his front bumper was insufficient to permit the stop because the
lights were fog lights permitted by the statute. We disagree.
We assume without deciding that a seizure occurred when Trooper Hankins crossed in
front of appellant’s vehicle while appellant was stopped and waiting to pay his toll, at which time
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Trooper Hankins may have raised his hand to warn appellant of his intent to cross and his desire
to do so safely before appellant proceeded through the toll plaza. Nevertheless, the evidence,
viewed in the light most favorable to the Commonwealth, supports a finding that Trooper
Hankins had reasonable suspicion to detain appellant to investigate whether the lights on the
vehicle’s front bumper violated Code § 46.2-1020. Trooper Hankins testified that the lights he
observed on the front bumper appeared to be blue in violation of Code § 46.2-1020. He said the
lights were “unique,” which was what brought the vehicle to his attention in the first place, and
that they appeared to be “after-market” lights, i.e., lights added after purchase rather than lights
with which the vehicle had been equipped by the manufacturer. He agreed that fog lights
equipped with halogen bulbs that “illuminat[e] . . . a cool blue” would not necessarily violate the
statute but that “[e]ach vehicle has to be taken on a case-by-case basis.”
The trial court examined photographs of the lights admitted into evidence and agreed
that, although
the lights have a clear lens, . . . it appears they [also] have
something blue . . . presumably a blue bulb or some kind of blue
material inside the clear plastic lens . . . . The bottom half of it at
least, is what it looks like to me -- within the lens.
As a result, it concluded
the blue appearance of the fog lights as depicted in
Commonwealth’s Exhibits 1 and 2, because the blue lights
constitute the color of emergency lights not permitted by law, does
provide sufficient suspicion for the trooper to act as he did.
Appellant did not dispute that if the lights were, in fact, blue, Code § 46.2-1020 prohibited him
from operating the vehicle with those lights on its bumper, even if they were “unlit,” unless those
lights were also “covered.” Because the evidence supported the trial court’s finding that Trooper
Hankins had reasonable suspicion to believe appellant’s operating the vehicle without covering
the lights at issue violated Code § 46.2-1020, we hold the denial of the motion to suppress was
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not error.1 That Trooper Hankins could not determine the color of the lights when appellant
illuminated them for him during the stop and chose not to issue appellant a citation for violating
Code § 46.2-1020 does not require a different result.
B.
SUFFICIENCY OF EVIDENCE TO PROVE POSSESSION OF FIREARM
Under familiar principles of appellate review, we examine the evidence in the light most
favorable to the Commonwealth, granting to the evidence all reasonable inferences fairly
deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). Circumstantial evidence is sufficient to support a conviction provided it excludes every
reasonable hypothesis of innocence flowing from the evidence. Hamilton v. Commonwealth, 16
Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
The possession necessary to support convictions for the possession of a firearm while in
possession of cocaine and possession of a firearm by a convicted felon may be actual or
constructive. See, e.g., Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368
(1994) (en banc). Establishing constructive possession requires proof “that the defendant was
aware of both the presence and character of the [item] and that it was subject to his dominion and
control.” Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). A person’s
ownership or occupancy of premises on which the subject item is found, proximity to the item,
and statements or conduct concerning the location of the item are probative factors to be
considered in determining whether the totality of the circumstances supports a finding of
possession. Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 831-32 (1997).
1
Because we hold the evidence regarding the fog lights provided reasonable suspicion
for the stop, we need not consider the impact of the broken marker light on the existence of
reasonable suspicion for the stop.
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Possession “need not always be exclusive. The defendant may share it with one or more.”
Josephs v. Commonwealth, 10 Va. App. 87, 89, 390 S.E.2d 491, 497 (1990) (en banc).
The only reasonable hypothesis flowing from the evidence in this case, viewed in the
light most favorable to the Commonwealth, is that appellant was aware of the presence of the
firearm protruding from beneath the front seat of the vehicle he was driving and that it was
subject to his dominion and control. The evidence, so viewed, established that appellant was
traveling alone in the vehicle and gave Trooper Hankins a false name “when [Hankins] first
stopped him.” When Hankins began to search the vehicle, he opened the driver’s side door of
the car appellant had just been driving, and he “immediately saw [a] handgun under the driver’s
seat.” “[A] good portion of the butt of the weapon was visible” to Hankins, and he testified that
he could see it “from looking down over the seat.” On the vehicle’s center console, immediately
adjacent to the driver’s seat, Hankins found a neatly folded dollar bill containing cocaine that
appellant admitted was his. Immediately behind the gearshift and beneath the hand brake,
Hankins found a bullet of the same caliber as the weapon.
Elsewhere in the car, Hankins found an identification card bearing appellant’s name and
photograph. Although Hankins confronted appellant with the i.d. card, appellant continued to
deny his true identity and admitted he was Dermaine Shelton only after fingerprinting
affirmatively established his identity. When Trooper Hankins asked appellant why he had
provided a false name, he said he did so “because of the mother fucking gun.” Although
appellant was an habitual offender and had an outstanding capias for his arrest in another
jurisdiction, he mentioned only the presence of the firearm as the reason he gave a false name.
Although appellant denied knowing the firearm was in the car before Trooper Hankins
found it, his giving Trooper Hankins a false name before the firearm was discovered and his later
admitting that he did so “because of the . . . gun”--coupled with the location of the gun in plain
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view beneath his feet and a bullet of the same caliber in plain view beside him on the center
console, in close proximity to cocaine he admitted was his--established that he knowingly and
intentionally exercised at least joint possession of the loaded firearm and that it was subject to his
dominion and control.
II.
For these reasons, we hold the evidence supported the trial court’s denial of appellant’s
motion to suppress and its conviction of him for the challenged firearms offenses. Thus, we
affirm all challenged convictions.
Affirmed.
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