                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Elder, Petty and McCullough
UNPUBLISHED


              Argued at Richmond, Virginia


              HOLLIE ANN SWANN
                                                                            MEMORANDUM OPINION * BY
              v.     Record No. 2173-11-2                                 JUDGE STEPHEN R. McCULLOUGH
                                                                                NOVEMBER 27, 2012
              COMMONWEALTH OF VIRGINIA


                                    FROM THE CIRCUIT COURT OF AMELIA COUNTY
                                                 Paul W. Cella, Judge

                               Ronald M. Gore, Jr., for appellant.

                               Susan M. Harris, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Hollie Ann Swann was indicted for “unlawfully and feloniously, knowingly and

              intentionally, carry[ing] about the accused’s person, hidden from common observation, a weapon

              described in subsection A of Section 18.2-308, after having been convicted of a felony . . . .” The

              court convicted her of that charge, as well as a possession of heroin charge that is not before us. She

              challenges the sufficiency of the evidence for her conviction under Code § 18.2-308.2. In addition,

              Swann contends that there was a fatal variance between the indictment and the evidence presented

              at trial. We conclude that the evidence was insufficient to convict appellant of violating Code

              § 18.2-308.2.1




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       In light of our disposition, we do not address appellant’s assignment of error concerning
              the alleged variance.
                                           BACKGROUND

        Around 10:00 p.m., a vehicle pulled up to a residence in Amelia County while the residence

was being searched by the police. George Bushman was driving the car. Appellant sat in the front

passenger seat, and Brandy Lascolette Marsh was seated in the back seat, along with an unnamed

fourth individual. A syringe was in plain view on appellant’s lap.

        Police officers searched the vehicle. The search yielded a 9mm Ruger pistol underneath the

floor mat on the driver’s side. Police also recovered a plastic pill bottle in the center console that

had Hollie Swann’s name on it. The pill bottle contained heroin. Police also recovered an

extendable baton underneath the floor mat on the passenger side. On the passenger side of the

vehicle, sitting on the floor next to the console, police recovered a black nylon holster for a 9mm

pistol. The holster had a pouch, and inside the pouch was a magazine. The magazine contained

some ammunition. A police officer who was involved in the search testified that he had no

evidence that Swann had ever been in the car before.

        Swann and Marsh had met Bushman four or five days before their arrest. Swann gave a

statement to the police, in which she admitted that she was holding the drugs for Bushman. Marsh

testified that the trio had driven to Chester to retrieve the drugs from Bushman’s apartment.

        In closing argument, the prosecution made it clear that the basis for the charge under Code

§ 18.2-308.2 was the ammunition contained in the magazine. The court overruled Swann’s motion

to strike the charge and convicted appellant.

                                              ANALYSIS

        The standard of review in a sufficiency case is well settled. First, the evidence is viewed in

the light most favorable to the prevailing party, in this instance the Commonwealth.

Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). The reviewing court

must “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as

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true all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn

therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980). The

“reviewing court does not ‘ask itself whether it believes that the evidence at the trial established

guilt beyond a reasonable doubt.’” Crowder v. Commonwealth, 41 Va. App. 658, 663, 588 S.E.2d

384, 387 (2003) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). The question, rather,

“is whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Kelly

v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson,

443 U.S. at 319).

          Code § 18.2-308.2 prohibits a convicted felon from possessing “any firearm or ammunition

for a firearm.” In this instance, the Commonwealth relied on a theory of constructive possession.

                          “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 [her]
                 dominion and control. 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 [appellant] possessed
                 the firearm.”

Smallwood v. Commonwealth, 278 Va. 625, 630-31, 688 S.E.2d 154, 156-57 (2009) (quoting

Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008)). Furthermore, a firearm

may be jointly possessed. Atkins v. Commonwealth, 57 Va. App. 2, 23, 698 S.E.2d 249, 259

(2010).

          The record here is devoid of any facts showing that appellant constructively possessed the

ammunition or, indeed, that she was even aware of its existence. The ammunition was inside a

magazine, which was inside the pouch of a holster. Therefore, the presence of the ammunition was

concealed from view. No statements, conduct, or forensic evidence links appellant to this holster or
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its contents. No evidence established that appellant had any kind of legal or possessory interest in

the car. The Commonwealth’s own evidence showed that, although appellant had known the driver

of the car for a few days, there was no indication that appellant had been in this car before. The gun

was found under the driver’s seat, not the passenger seat. We conclude that appellant’s conviction

for possession of ammunition as a convicted felon was without evidence to support it. See, e.g.,

Hancock v. Commonwealth, 21 Va. App. 466, 465 S.E.2d 138 (1995).

       The trial court relied on appellant’s proximity to the ammunition. Mere proximity

constitutes a relevant factor in determining whether the accused possessed the ammunition, but it is

insufficient without more to show constructive possession. Smallwood, 278 Va. at 630-31, 688

S.E.2d at 156-57.

                                          CONCLUSION

       We find the evidence insufficient as a matter of law to convict appellant of possession of the

ammunition as a convicted felon and, accordingly, we reverse her conviction under Code

§ 18.2-308.2.

                                                                        Reversed and final judgment.




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