COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Willis, and Bray
SEAN S. YOUNG, s/k/a
SEAN STERLING YOUNG
MEMORANDUM OPINION * BY
v. Record No. 0562-95-3 JUDGE RICHARD S. BRAY
MARCH 5, 1996
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRY COUNTY
David V. Williams, Judge
(Robert A. Williams; Williams, Luck &
Williams, on brief), for appellant.
(James S. Gilmore, III, Attorney General;
Margaret Ann B. Walker, Assistant Attorney
General, on brief), for appellee. Appellee
submitting on brief.
Sean Sterling Young (defendant) was convicted in a bench
trial for possessing a firearm after having been convicted of a
felony in violation of Code § 18.2-308.2(A). On appeal,
defendant challenges the sufficiency of the evidence to support
the conviction. We affirm the judgment of the trial court.
The parties are fully conversant with the record in this
case, and we recite only those facts necessary to a disposition
of this appeal.
Under familiar principles of appellate review, the evidence
is viewed in the light most favorable to the Commonwealth,
granting to it all reasonable inferences fairly deducible
therefrom. Martin v. Commonwealth, 4 Va. App. 438, 443, 358
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
S.E.2d 415, 418 (1987). The judgment of a trial court, sitting
without a jury, is entitled to the same weight as a jury verdict
and will be disturbed only if plainly wrong or without evidence
to support it. Id. The credibility of a witness, the weight
accorded the testimony, and the inferences to be drawn from
proven facts are matters solely for the fact finder's
determination. Long v. Commonwealth, 8 Va. App. 194, 199, 379
S.E.2d 473, 476 (1989).
As Chad Hall entered a convenience store on the evening of
December 28, 1993, he observed defendant in the driver's seat of
a Toyota automobile parked "over to the side near the pay
phone." 1 When Hall exited the store and proceeded toward his
vehicle, defendant inquired, "what [he] was tripping on," the two
exchanged "angry words," and defendant asked Hall to "follow him
up the road." Defendant was accompanied by three passengers, two
women seated in the rear and a man in the front.
Hall, anticipating a "fist fight," followed the vehicle
operated by defendant to a nearby parking lot, stopped, and
exited his car. The Toyota also stopped and, as Hall approached
the car, the window on the "driver's side" "rolled down," and
"bullets" began to "fly out of it." Hall quickly "retreated
. . . to [his] car[,] . . . grabbed [his] gun and shot back."
The Toyota, still operated by defendant, then quickly left the
1
The evidence does not disclose that defendant was the owner
of the vehicle.
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area.
Kerri Bradley was the female passenger seated immediately
behind defendant in the Toyota and had seen a gun "under
[defendant's] seat, in front of [her]," while at the store.
Gerald Norman, the male front seat passenger, had then instructed
Bradley to "be careful and to push it back under the seat."
Later, en route to the parking lot, Norman "reached back to get
[the gun]," and "just held it." Once at the lot, defendant
directed both women in the rear seat "to duck" and, thirty
seconds to a minute thereafter, Bradley heard gunshots which
"sounded like they were coming from the car that [she] was in."
Bradley "glanced up," saw a "gun sticking out of the driver's
side window" and "ducked back down." She was unable to identify
the person holding the gun, but testified that "it looked like"
defendant.
Code § 18.2-308.2(A) provides that "[i]t shall be unlawful
for . . . any person who has been convicted of a felony 2 . . . to
knowingly and intentionally possess . . . any firearm." Either
actual or constructive possession constitutes a violation of the
statue. Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427
S.E.2d 219, 220-21 (1993). In assessing the sufficiency of
evidence to establish constructive possession of a firearm, we
are guided by those principles which govern such possession of
controlled substances. Id. at 708, 427 S.E.2d at 220.
2
Defendant's prior felony conviction was undisputed.
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"'To support a conviction based upon
constructive possession, "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
defendant was aware of both the presence and
character of the substance and that it was
subject to his dominion and control."'"
"While proximity to a controlled substance is
insufficient alone to establish possession,
it is a factor to consider when determining
whether the accused constructively possessed
drugs."
Pemberton v. Commonwealth, 17 Va. App. 651, 654, 440 S.E.2d 420,
422 (1994) (citations omitted). It is not necessary that
possession "'always be exclusive. The defendant may share it
with one or more.'" Blake, 15 Va. App. at 708, 427 S.E.2d at
220-21 (citation omitted).
Here, defendant was the operator of the vehicle, and the gun
was initially hidden beneath his seat. After exchanging "angry
words" with Hall, defendant asked Hall to "follow him up the
road" and proceeded to the parking area where both vehicles
stopped. Meanwhile, Norman had taken actual possession of the
firearm. Immediately prior to the gunfire, defendant directed
the women in the rear seat "to duck." The driver's window was
lowered, and "bullets fl[ew] out." The weapon was observed
"sticking out of the driver's side window," while Norman remained
in the passenger seat. Assuming, without deciding, that such
evidence failed to sufficiently prove defendant's actual
possession of the firearm, the record clearly established that he
was aware of its presence and character, sharing its dominion and
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control with Norman while the weapon was employed incidental to a
confrontation initiated and pursued by defendant. Defendant,
therefore, constructively possessed the firearm. See id. at 709,
427 S.E.2d at 221.
Accordingly, we affirm the conviction.
Affirmed.
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BENTON, J., dissenting.
"[W]here . . . a conviction is based on circumstantial
evidence, 'all necessary circumstances proved must be consistent
with guilt and inconsistent with innocence and exclude every
reasonable hypothesis of innocence.'" Garland v. Commonwealth,
225 Va. 182, 184, 300 S.E.2d 783, 784 (1983) (quoting Inge v.
Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).
"Suspicion, however, no matter how strong, is insufficient to
sustain a criminal conviction." Stover v. Commonwealth, 222 Va.
618, 624, 283 S.E.2d 194, 197 (1981).
The evidence proved that the accused was driving an
automobile with three passengers. No evidence proved that the
automobile belonged to the accused or that the accused knew of
the gun's presence on the floor. The evidence failed to prove
that the accused ever touched the gun.
The evidence proved that the passengers sitting on the rear
seat behind the driver saw a gun on the floor board. The gun
apparently was located near the rear of the driver's seat. When
the passenger mentioned the presence of the gun, Gerald Norman,
who was sitting on the front seat told the passenger to "stick it
up under the seat."
The evidence proved only that Norman had prior knowledge
that the gun was in the automobile. The evidence also proved
that Norman reached under the seat to retrieve the gun and was
the only person in the car that handled the gun. Norman was
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holding the gun when several men approached the automobile and
the accused said "duck." No evidence proved that Norman was not
the person who fired the gun.
Ruling that the evidence in Hancock v. Commonwealth, 21 Va.
App. 466, 465 S.E.2d 138 (1995), was insufficient to prove
constructive possession, we said:
No evidence established that [the accused]
ever held the firearm, saw it [before it was
discharged], knew it was present, or
exercised any dominion and control over it.
The facts established no more than a mere
suspicion . . . that he knew the firearm was
under the driver's seat. The evidence must
rise beyond "the realm of probability and
supposition." "'Circumstances of suspicion,
no matter how grave or strong, are not proof
of guilt sufficient to support a [guilty]
verdict . . . beyond a reasonable doubt.'"
Proof that the firearm was located close to
[the accused] was not sufficient to prove the
elements of the offense beyond a reasonable
doubt.
Id. at 472, 465 S.E.2d at 141-42 (citations omitted). As in
Hancock, this evidence in this case failed to prove that the
accused had prior knowledge of the presence of the gun in the car
and failed to prove that the gun was "subject to his dominion and
control." Garland, 225 Va. at 184, 300 S.E.2d 784. Thus, I
would hold that the evidence failed to prove beyond a reasonable
doubt that the accused constructively possessed the gun.
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