PRESENT: All the Justices
BARAKA BOLDEN,
S/K/A BARAKA S. BOLDEN
v. Record No. 070816 OPINION BY
JUSTICE S. BERNARD GOODWYN
January 11, 2008
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal from a judgment of the Court of Appeals, we
consider whether the evidence was sufficient to establish that
the defendant possessed a firearm.
Baraka Bolden was tried, without a jury, in the Circuit
Court of the City of Hampton on October 19, 2005, upon
indictments charging possession of cocaine with intent to
distribute, possession of marijuana with intent to distribute,
possession of a firearm while in possession of cocaine,
possession of a concealed weapon, and possession of a firearm by
a convicted felon. Bolden was convicted on all charges and
sentenced to a total of 22 years’ imprisonment with 12 years
suspended.
The Court of Appeals, in a published opinion, Bolden v
Commonwealth, 49 Va. App. 285, 640 S.E.2d 526 (2007), affirmed
the trial court’s judgment, holding, in relevant part, that the
trial court did not err in finding the evidence sufficient to
sustain Bolden’s convictions.
This Court granted Bolden an appeal limited to the issues
of: whether sufficient evidence existed to find that Bolden
possessed a firearm or weapon; and whether the Court of Appeals
erred when, in determining the sufficiency of the evidence, the
Court considered evidence admitted at trial and contained in the
record, even though that evidence was never argued to, nor
commented upon by, the trial court.
On February 10, 2005, Officer Eric R. Bjune encountered a
vehicle not parked within the parallel lines in a hotel parking
lot. A man later identified as Bolden was sitting in the
driver’s seat and a woman was sitting in the front passenger
seat. As Bjune approached the vehicle, both occupants exited
the vehicle. Bolden closed the vehicle door and walked toward
Bjune. When Bolden was within several feet of the officer,
Bolden dropped some brown rolling paper and a “blue Ziploc bag”
that appeared to contain cocaine. Bjune immediately placed
Bolden into custody and searched him, finding several bags of
marijuana hidden in Bolden’s groin area and $590 in cash on
Bolden’s person.
When Bjune looked in the vehicle, he saw a blue plastic
grocery bag in plain view in the driver’s seat against the
armrest. Bjune opened the bag and found a loaded .32 caliber
handgun inside the bag. Regarding the location of the bag,
Bjune testified that “it was right beside Mr. Bolden or he was
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sitting on it.” Officer Bjune admitted that he could not
determine that a firearm was in the blue bag until he “picked up
the bag and looked inside.”
Bjune also found an open knapsack in the vehicle. It
contained a box of sandwich baggies and additional small bags
consistent with the one containing the cocaine that Bolden had
dropped. Additionally, the knapsack contained marijuana and a
digital scale. Bjune testified that he did not know how long
Bolden was in the vehicle prior to Bjune’s arrival. Detective
Christopher Hake, an expert in narcotics manufacturing,
distribution, and packaging, testified that the narcotics
possessed by Bolden were inconsistent with personal use. Hake
based his opinion upon the combined findings of: the packaging
of the narcotics, the presence of additional packaging materials
in the vehicle, the $590 in cash seized from Bolden’s person,
the scales, and the firearm with ammunition found in the
vehicle. Hake testified that a drug dealer would carry a
firearm “so he can protect his interests – his cocaine, his
money.”
Bolden challenges the sufficiency of the evidence to prove
beyond a reasonable doubt that he possessed the firearm in
question. He also contends that an appellate court determining
the sufficiency of the evidence may not consider evidence
admitted at trial, but not mentioned by the Commonwealth in its
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trial arguments or by the trial court in its ruling.
Specifically, Bolden asserts that the Commonwealth’s theory of
constructive possession argued at trial did not mention the
connection between drug distribution and possession of a
firearm, and the trial court did not comment on any such
connection in its ruling.
When a defendant challenges on appeal the sufficiency of
the evidence to sustain his conviction, the appellate court has
a duty to examine all the evidence that tends to support the
conviction. Coles v. Commonwealth, 270 Va. 585, 587, 621 S.E.2d
109, 110 (2005); Commonwealth v. Presley, 256 Va. 465, 466, 507
S.E.2d 72, 72 (1998); Commonwealth v. Jenkins, 255 Va. 516, 520,
499 S.E.2d 263, 265 (1998). Contrary to Bolden’s assertion,
this examination is not limited to the evidence mentioned by a
party in trial argument or by the trial court in its ruling. In
determining whether there is evidence to sustain a conviction,
an appellate court must consider all the evidence admitted at
trial that is contained in the record. The defendant’s
assignment of error based upon the Court of Appeals considering
evidence admitted at trial, but not mentioned by a party in
trial argument or by the trial court in its ruling, is without
merit.
Under well-settled principles of appellate review, we
consider the evidence presented at trial in the light most
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favorable to the Commonwealth, the prevailing party below.
Baldwin v. Commonwealth, 274 Va. 276, 278, 645 S.E.2d 433, 433
(2007); Robinson v. Commonwealth, 273 Va. 26, 30, 639 S.E.2d
217, 219 (2007). “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.
Coles, 270 Va. at 587, 621 S.E.2d at 110; Burns v. Commonwealth,
261 Va. 307, 337, 541 S.E.2d 872, 892 (2001).
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. Rawls v.
Commonwealth, 272 Va. 334, 349, 634 S.E.2d 697, 705 (2006);
Walton v. Commonwealth, 255 Va. 422, 426, 497 S.E.2d 869, 872
(1998). 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.” Rawls, 272 Va. at 349,
634 S.E.2d at 705; accord Walton, 255 Va. at 426, 497 S.E.2d at
872; Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845
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(1986); Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d
739, 740 (1984); Andrews v. Commonwealth, 216 Va. 179, 182, 217
S.E.2d 812, 814 (1975). 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. Rawls, 272 Va. at 350, 634
S.E.2d at 705; Walton, 255 Va. at 426, 497 S.E.2d at 872; Lane
v. Commonwealth, 223 Va. 713, 716, 292 S.E.2d 358, 360 (1982).
There is evidence to support a finding that Bolden was
aware of the presence and character of the firearm and it was
within his dominion and control. Bolden exited the vehicle
along with the only other passenger, and Bolden attempted to
contact the officer before the officer could get to the vehicle.
The bag containing the gun was open and obvious to someone
looking in the vehicle, and it was located in immediate
proximity to where Bolden had been sitting. Additionally,
Bolden possessed illegal drugs with the intent to distribute
them, and an expert witness testified at trial as to the link
between the distribution of drugs and the possession of a
firearm.
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For these reasons we hold that the evidence was sufficient
to establish that Bolden possessed the firearm, and we will
affirm the judgment of the Court of Appeals.
Affirmed.
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