COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Benton, and Overton
Argued at Salem, Virginia
WINFRED L. HANCOCK, S/K/A
WINFRED LEE HANCOCK
OPINION BY
v. Record No. 1740-94-3 JUDGE JAMES W. BENTON, JR.
DECEMBER 29, 1995
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Richard C. Pattisall, Judge
John P. Varney (Office of the Public Defender,
on brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General; Robert B. Condon, Assistant Attorney
General, on brief), for appellee.
Winfred L. Hancock was convicted of possession of a firearm
after having been convicted of a felony in violation of Code
§ 18.2-308.2. He contends the evidence was insufficient to prove
that he possessed the firearm. For the reasons that follow, we
reverse the conviction.
On April 11, 1994, Officer K. O. Hubbard was dispatched to
respond to a call concerning shots fired from a vehicle. Hubbard
stopped a vehicle that matched the description given by the
dispatcher. Two men sat in the front seat and three men were in
the back seat. After Hubbard learned that the driver did not
have a license, he asked the driver and the passengers to exit
the vehicle one at a time.
When Sergeant M. A. Lee arrived, Hancock was seated behind
the driver's seat. Another passenger was sitting beside the
right passenger door. The other three men were outside the
vehicle. Lee asked Hancock to leave the vehicle. As Hancock
picked up his feet and exited, Lee observed a revolver on the
floorboard under the driver's seat. Lee testified that he could
not see the firearm until Hancock "stepped out and his feet were
on top of it."
Lee removed the firearm, inspected it, and replaced it in
the vehicle. Hubbard then recovered the firearm and noticed that
it had fresh mud on it and two of the three shells had been
fired. He also noted that Hancock's shoes were wet. Clothes and
a towel were found under the driver's seat, between the gun and
the front of the car.
From these facts, the trial judge found that Hancock
possessed the weapon. He sentenced Hancock to three years
imprisonment. On this appeal, Hancock claims the evidence was
insufficient to support such a finding.
A conviction for knowingly and intentionally possessing a
firearm after having been convicted of a felony, see Code
§ 18.2-308.2, requires proof beyond a reasonable doubt of either
actual or constructive possession of the firearm. See Blake v.
Commonwealth, 15 Va. App. 706, 708, 427 S.E.2d 219, 220 (1993).
Hancock did not have actual possession of the firearm. Indeed,
the trial judge based the conviction upon his finding that
Hancock had constructive possession of the firearm.
In rendering his verdict, the trial judge made the following
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findings:
Possession, of course, take[s] the form of
actual possession on the person or
constructive possession and control. It
appears to the Court that Mr. Hancock may not
have had actual physical possession but that
he had constructive possession. He knew that
the gun was there or should have known. It
was under his feet.
The trial judge erred in concluding that guilt could be
established by proving that Hancock "should have known" the
firearm was below his feet. Liability under Code § 18.2-308.2
requires proof that the accused "knowingly and intentionally
possess[ed] . . . any firearm." Thus, the Commonwealth must
prove a defendant's actual knowledge of the firearm. See
Clodfelter v. Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822
(1977); Burton v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757,
759 (1975); Buono v. Commonwealth, 213 Va. 475, 476, 193 S.E.2d
798, 798-99 (1973). The trial judge misunderstood the requisite
mental state when he ruled that "should have known" was
sufficient. We can affirm this appeal only if the Commonwealth
proved beyond a reasonable doubt that Hancock had actual
knowledge of the presence of the firearm, i.e. "knowingly and
intentionally possess[ed]" the firearm. Code § 18.2-308.2. See
also Staples v. United States, ___ U.S. ___, ___, 114 S. Ct.
1793, 1806 (1994)(Ginsburg, J., concurring)("'Knowingly
possessed' logically means 'possessed and knew that he
possessed'").
To support a conviction based upon constructive possession
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"the Commonwealth must point to evidence of acts, statements, or
conduct of the accused or other facts or circumstances which tend
to show that the [accused] 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). Proof that the firearm "was found in
. . . a vehicle . . . occupied by the [accused] is insufficient,
standing alone, to prove constructive possession." Id.
Hubbard testified that the stop occurred at night and that
after Hancock had exited the automobile, a street light
illuminated the interior, enabling Hubbard to see the firearm.
The firearm was on the floor of the vehicle under the driver's
seat. When Hubbard was watching the passengers exit the
automobile, he was unable to see the firearm. The legs of the
passengers prevented him from seeing the floorboard. He
testified that if a person entering the automobile did not look
at the floorboard, that person would not necessarily have seen
the firearm.
Lee caused Hancock to exit the vehicle. When Lee asked
Hancock to step from the vehicle, Lee did not see the firearm.
Lee testified that when Hancock picked up his feet and started to
step out, he then "noticed a blue steel revolver underneath . . .
his feet which was stuck underneath the back side of the
driver['s] seat." Lee did not recall whether the automobile had
an interior light.
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The Commonwealth offered no other evidence to establish
Hancock's constructive possession of the firearm. No fingerprint
evidence was offered. No witnesses testified as to when Hancock
entered the vehicle. Hancock made no statement concerning the
firearm. The evidence does not exclude the hypothesis that
another individual in the vehicle may have possessed the gun.
See LaPrade v. Commonwealth, 191 Va. 410, 418, 61 S.E.2d 313, 316
(1950)(circumstantial evidence requires the Commonwealth to
exclude every reasonable hypothesis of innocence).
The evidence in this case proved circumstances analogous to
the proof in Crisman v. Commonwealth, 197 Va. 17, 87 S.E.2d 796
(1955). In that case, a driver and four passengers were stopped
one morning in a vehicle. The police found a packet of cocaine
on the floor in front of the rear seat and charged two of the
passengers with possession of the substance. In reversing the
convictions, the Supreme Court ruled as follows:
There were five men in the automobile, any
one of whom could have dropped the [item] on
the floor. Or it could have been placed
there by some unknown party. There is no
proof of the ownership of the [item] or who
placed it on the floor of the car.
Id. at 20, 87 S.E.2d at 798.
The Commonwealth contends that Adkins v. Commonwealth, 217
Va. 437, 229 S.E.2d 869 (1976) and State v. Washington, 605 So.
2d 720 (La. Ct. App. 1992) require that we affirm the conviction.
We disagree. In Adkins, the evidence proved that the police
received a tip that the defendant would be transporting drugs at
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a future specified time from one city to another. A police
officer saw the defendant's vehicle travelling on a highway
between the cities, as predicted. 217 Va. at 438, 229 S.E.2d at
870. When the officer signaled the defendant to stop, the
defendant complied, moved from the driver's seat to the vacant
passenger seat, and pretended to be asleep. A bag of marijuana
was found on the floorboard in front of the driver's seat. Two
passengers were asleep on the rear seat. The police also found
marijuana in the glove compartment and in the trunk. The
defendant, who owned the vehicle, was convicted of possessing the
marijuana. Id.
The Court held that the evidence proved the marijuana was at
the defendant's feet before he moved, that the defendant was the
sole occupant of the front seat, and that the defendant owned the
vehicle. Id. at 438-39, 229 S.E.2d at 870. Moreover, based upon
the circumstances of the stop and discovery of marijuana in the
inaccessible parts of the vehicle, the Court's conclusion that
the defendant possessed the marijuana was amply supported by the
evidence. See id. These facts clearly distinguish Adkins from
Crisman and from this case.
In Washington, the evidence proved that the defendant and
the driver of a vehicle were stopped after they exited a vehicle
in daylight. The police found a firearm between the driver's
seat and the passenger's seat, which the defendant occupied. 605
So. 2d at 720. A firearm was also in plain view on the floor in
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front of the seat the defendant occupied. Finding that the
defendant knew the firearm was at his feet and that the defendant
lied about his identity, the Louisiana Court ruled that the
defendant had possession of the firearm that was plainly visible
in the daylight in front of him. Id. at 723.
Unlike the facts in Washington, the evidence in this case
established that Hancock was in the vehicle at nighttime with
four other persons. No evidence proved that Hancock could see
the firearm. Indeed, the officer testified that he could not see
the firearm on the floor when the passengers were in the vehicle.
Only the streetlight enabled the officer to see the firearm as
Hancock exited the vehicle.
No evidence established that Hancock ever held the firearm,
saw it, knew it was present, or exercised any dominion and
control over it. See Powers, 227 Va. at 476, 316 S.E.2d at 740.
The facts established no more than a mere suspicion that the
firearm was possessed by Hancock or that he knew the firearm was
under the driver's seat. The evidence must rise beyond "the
realm of probability and supposition." Hall v. Commonwealth, 225
Va. 533, 537, 303 S.E.2d 903, 905 (1983). "'Circumstances of
suspicion, no matter how grave or strong, are not proof of guilt
sufficient to support a [guilty] verdict . . . beyond a
reasonable doubt.'" Crisman, 197 Va. at 21, 87 S.E.2d at 799
(quoting Powers v. Commonwealth, 182 Va. 669, 676, 30 S.E.2d 22,
25 (1944)). Proof that the firearm was located close to Hancock
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was not sufficient to prove the elements of the offense beyond a
reasonable doubt. See Jones v. Commonwealth, 17 Va. App. 572-74,
439 S.E.2d 863, 864 (1994). Accordingly, we reverse the
conviction.
Reversed.
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