COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia
LUTHER EARL BRACEY,
s/k/a LUTHER BRACY
MEMORANDUM OPINION * BY
v. Record No. 3214-96-1 JUDGE WILLIAM H. HODGES
OCTOBER 28, 1997
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
E. Everett Bagnell, Judge
Michael D. Eberhardt for appellant.
Robert H. Anderson, III, Assistant Attorney
General (Richard Cullen, Attorney General;
Margaret Ann B. Walker, Assistant Attorney
General, on brief), for appellee.
Luther Earl Bracey appeals from a jury verdict convicting
him of possessing a sawed-off shotgun and possessing a firearm
after having been convicted of a felony. He asserts that the
evidence was insufficient to prove beyond a reasonable doubt that
he possessed the shotgun.
"On appeal, we review the evidence 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 S.E.2d 415, 418 (1987).
So viewed, the evidence proved that on September 25, 1993,
at approximately 4:30 a.m., Officer Harris initiated a traffic
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
stop of an automobile driven by and registered to Linwood Barns.
At the time of the stop, Bracey was riding on the passenger side
of the front seat, and Harris observed no suspicious movement in
the vehicle by either Barns or Bracey. Harris testified that, as
soon as the car stopped, the front passenger door "flew open,"
and Bracey "jumped out of the passenger side and stepped up on
the curb real quick." Bracey walked toward Harris, ignoring
Harris' repeated orders to return to the car, conduct which
Harris regarded as very unusual for a passenger during a traffic
stop. Officer Davis arrived at the scene moments after the
stop. While Harris spoke with Barns, Davis approached the
passenger side of the car, where Bracey was standing. Shining
his flashlight inside, Davis noticed the fourteen-inch barrel of
a sawed-off shotgun extending from beneath the passenger side of
the front seat. Davis testified that, although he could not see
the stock or butt of the weapon, the barrel was clearly visible.
The car had a bench seat and the floor on the passenger side was
separated from the driver's side by the transmission "hump."
"[W]here, as 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) (citation omitted).
"Possession [of contraband] may be actual or constructive."
Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368
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(1994) (en banc).
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
[accused] was aware of both the presence and
character of the [item] and that it was
subject to his dominion and control."
Hancock v. Commonwealth, 21 Va. App. 466, 469, 465 S.E.2d 138,
140 (1995) (citation omitted). "In determining whether a
defendant constructively possessed a firearm, the defendant's
proximity to the firearm and his occupancy and ownership of the
vehicle must also be considered." Logan, 19 Va. App. at 444, 452
S.E.2d at 369. Possession need not be exclusive--a defendant may
share possession of a weapon with another. See Blake v.
Commonwealth, 15 Va. App. 706, 708, 427 S.E.2d 219, 220 (1993).
Bracey argues that Hancock supports his contention that he
did not possess the shotgun. In Hancock, the defendant was one
of five occupants of the vehicle in which a firearm was
recovered. See Hancock, 21 Va. App. at 468, 465 S.E.2d at 139.
The defendant was sitting in the back seat of the car, behind the
driver, and the firearm was found under the driver's seat. See
id. The police officer who found the gun testified that he could
not see the weapon until after the defendant exited the car and
that a person would not see the gun unless he looked at the
floorboard. See id. at 470, 465 S.E.2d at 140.
Here, however, Davis found the firearm only partially hidden
beneath the seat where Bracey had been sitting. The presence of
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the transmission hump prevented the shotgun from sliding to
Bracey's side of the car. Only Barns and Bracey occupied the
vehicle, and no evidence supports the hypothesis that Barns
placed the shotgun under Bracey's seat after the stop. The
fourteen-inch barrel of the gun was "sticking out" from under the
seat and could be seen clearly. Harris testified that Bracey
acted suspiciously in exiting the car, approaching the officer
and ignoring repeated instructions to return to the vehicle.
From such conduct, the trial court could reasonably infer that
Bracey was aware of the shotgun, which was subject to his
dominion and control, and was attempting to distance himself from
it before discovery by police.
Accordingly, the evidence was sufficient to prove beyond a
reasonable doubt that Bracey knowingly, constructively possessed
the sawed-off shotgun, and we affirm the convictions.
Affirmed.
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Benton, J., dissenting.
"We can affirm this [conviction] only if the Commonwealth
proved beyond a reasonable doubt that [Luther Bracey] had actual
knowledge of the presence of the firearm, i.e. 'knowingly and
intentionally possess[ed]' the firearm." Hancock v.
Commonwealth, 21 Va. App. 466, 469, 465 S.E.2d 138, 140 (1995)
(citations omitted). Indeed, in Hancock, a case with facts
remarkably similar to this appeal, we stated the following well
established principles:
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
[accused] was aware of both the presence and
character of the [item] and that it was
subject to his dominion and control." Proof
that the firearm "was found in . . . a
vehicle . . . occupied by the [accused] is
insufficient, standing alone, to prove
constructive possession."
Id. (citations omitted).
The evidence proved that Bracey had been a passenger in the
vehicle that the police officer stopped late at night. When the
officer approached the vehicle to look inside, he "shined [a]
light into the floorboard which is underneath the seat [and]
. . . observed what appeared to be the barrel of a shotgun." The
officer testified that the barrel of the shotgun had been
"sawed-off" and that the shotgun was lying at an angle under the
passenger side of the front seat. Although the officer testified
that "the only thing that was sticking out was the barrel," he
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did not describe how much of the barrel was protruding. The
officer also testified that the interior of the vehicle, a
"seventies model . . . Buick," was strewn with "items in the back
seat, in the front seat, . . . and was right dirty."
The evidence proved that the driver owned the vehicle. No
evidence tended to prove that the firearm was not owned by the
driver or that the firearm was put under the seat after Bracey
entered the vehicle. No evidence proved how long Bracey had been
in the vehicle. Furthermore, no evidence proved that Bracey's
fingerprints were on the firearm, that Bracey had possessed the
firearm, or that Bracey had ever seen the firearm.
Because the evidence proved that the police stopped the
vehicle at night and discovered the firearm by shining a light in
the vehicle, the evidence failed to prove or even permit a
reasonable inference that Bracey could have seen the firearm. No
testimony proved how much of the barrel was protruding beyond the
seat or proved that the protruding portion, if any, could have
been seen without the aid of a light. Indeed, the combination of
the darkness and the rubble in the vehicle only allow conjecture
whether any protruding object would have been noticed by a
passenger.
As in Hancock, proof that Bracey was a passenger in the
vehicle and, therefore, was in proximity to the firearm is not a
sufficient basis to prove beyond a reasonable doubt that Bracey
constructively possessed the firearm that was under the seat.
No evidence established that [Bracey]
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ever held the firearm, saw it, knew it was
present, or exercised any dominion and
control over it. The facts established no
more than a mere suspicion that the firearm
was possessed by [Bracey] or that he knew the
firearm was under the . . . 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
[Bracey] was not sufficient to prove the
elements of the offense beyond a reasonable
doubt.
21 Va. App. at 472, 465 S.E.2d at 141-42 (citations omitted).
Because the evidence is not "wholly consistent with guilt
and wholly inconsistent with innocence," Scruggs v. Commonwealth,
19 Va. App. 58, 61, 448 S.E.2d 663, 664 (1994), I dissent. I
would reverse the convictions.
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Luther Earl Bracey, s/k/a Luther Bracy v. CW
Combined Opinion