                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and Beales
Argued at Richmond, Virginia


ANTONIO JAMEL LEE
                                                               MEMORANDUM OPINION * BY
v.      Record No. 0713-07-1                               CHIEF JUDGE WALTER S. FELTON, JR.
                                                                      JULY 15, 2008
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                James A. Cales, Jr., Judge

                  S. Jane Chittom, Appellate Defender (Office of the Appellate
                  Defender, on briefs), for appellant.

                  Donald E. Jeffrey, III, Assistant Attorney General (Robert F.
                  McDonnell, Attorney General, on brief), for appellee.


        Antonio Jamel Lee (appellant) was convicted following a jury trial of possession of a

firearm by a convicted felon in violation of Code § 18.2-308.2(A). Appellant contends the trial

court abused its discretion in admitting evidence at trial that, during a traffic stop, police officers

recovered cocaine from his person and in the bags located directly beneath his feet in the car in

which he was a passenger. He contends the introduction of the drug evidence was highly

prejudicial in his jury trial on a charge of possession of a firearm by a felon and that none of the

exceptions under which it is permissible to admit “other crimes evidence” applied. For the reasons

that follow, we affirm appellant’s conviction.

                                          I. BACKGROUND

        On September 26, 2005, at approximately 4:00 p.m., two Portsmouth Police Department

officers stopped April Townley, the driver of a black Jeep Cherokee, for failure to signal a left

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
turn. Appellant was sitting in the front passenger seat of the vehicle, and another individual was

sitting in the back seat. When appellant started making a great deal of noise, Officer Scott

Huneycutt asked Townley to get out of the vehicle. As he gave her a warning for the traffic

violation and returned her license, he noticed she was very nervous and her voice was stuttering.

He then asked for and received her permission to search the vehicle.

       In order to search the vehicle, Officer Huneycutt asked Townley, appellant, and the other

passenger to stand outside the vehicle. On the front passenger side of the vehicle, he found a

pillowcase and several plastic bags on the floorboard where appellant’s feet had been. Inside the

pillowcase, Officer Huneycutt found items of jewelry, as well as a plastic bag that contained a

loaded handgun. He also found almost one-half kilo of cocaine in another bag adjacent to the

pillowcase. After finding the jewelry, handgun, and cocaine, Officer Huneycutt instructed

another officer to arrest appellant. Shortly thereafter, appellant told Officer Huneycutt, “Cutt,

make sure you get all my jewelry. There’s fifty thousand dollars in jewelry, and it’s mine.”

(Emphasis added). During the search of appellant incident to his arrest, the officer found a

baggie containing five rocks of crack cocaine in appellant’s right sock and $1,380 in his left

sock. Among other charges, appellant was charged with possession of a firearm by a felon in

violation of Code § 18.2-308.2(A). 1

       In a pretrial motion in limine, appellant moved to exclude any evidence that drugs were

found in the vehicle or on his person. He also moved to exclude conversations taped while he

was in jail in which he admitted, “I got caught with half a bird and thirteen on me.” The trial


       1
          Appellant was also charged with the manufacture, sale or distribution of a controlled
substance with intent to distribute in violation of Code § 18.2-248; the manufacture, sale or
distribution of a controlled substance with intent to distribute, second or subsequent offense, in
violation of Code § 18.2-248(C); possession of a firearm while in possession of a controlled
substance in violation of Code § 18.2-308.4; and possession of a firearm while in possession of a
controlled substance with intent to distribute in violation of Code § 18.2-308.4(C). He was tried
separately for those offenses.
                                                 -2-
court denied appellant’s motion, concluding the drug evidence was admissible. The jury

convicted appellant of possession of a firearm after a felony conviction in violation of Code

§ 18.2-308.2(A). He was sentenced to five years imprisonment, the mandatory minimum

sentence under Code § 18.2-308.2, as he had been previously convicted of a violent felony as

defined in Code § 17.1-805. 2 This appeal followed.

                                          II. ANALYSIS

       To obtain a conviction for possession of a firearm by one previously convicted of a

felony, the Commonwealth must establish both that appellant possessed a firearm and that he had

previously been convicted of a felony. Code § 18.2-308.2.

                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. “To establish
                constructive possession of the firearm by [the] 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.”

Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d 584, 586 (2008) (quoting Rawls v.

Commonwealth, 272 Va. 334, 349, 634 S.E.2d 697, 705 (2006)) (citations omitted). Generally, a

trial court is given broad discretion over evidentiary matters, and we apply a deferential

abuse-of-discretion standard of appellate review. Thomas v. Commonwealth, 44 Va. App. 741,

753, 607 S.E.2d 738, 743, aff’d en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005).

       Here, appellant did not object at trial to the Commonwealth’s introduction of evidence

establishing he had been previously convicted of a felony, nor did he contest that the prior

conviction was for a felony listed in Code § 17.1-805. He contends, however, that the trial court

erred in admitting his taped phone conversation that he had been “caught with half a bird and


       2
           Appellant had previously been convicted of possession of a firearm by a felon.
                                               -3-
thirteen[,]” as well as testimony from the arresting officers that he possessed cocaine on his

person and in a plastic bag “right below” his feet. He argues that the drug evidence was not

relevant to prove he possessed the firearm and it was more prejudicial than it was probative.

       The evidence in the record clearly established that appellant possessed the handgun found

by Officer Huneycutt in a pillowcase located at appellant’s feet. Appellant admitted to Officer

Huneycutt that he owned the jewelry located in the same pillowcase in which the loaded

handgun was found. From this evidence, a rational fact finder could reasonably conclude the

Commonwealth proved appellant ‘“was aware of the presence and character of the firearm and

that the firearm was subject to his dominion and control’” in violation of Code § 18.2-308.2.

Bolden, 275 Va. at 148, 654 S.E.2d at 586 (quoting Rawls, 272 Va. at 349, 634 S.E.2d at 705).

We further conclude that the introduction of evidence that appellant possessed five rocks of

crack cocaine in one sock, $1,380 in the other sock, and almost one-half kilo of cocaine in

another bag adjacent to where the handgun was found, was additional evidence, which further

established that appellant possessed the handgun. See Thomas, 44 Va. App. at 755, 607 S.E.2d

at 745 (“Many courts have acknowledged the commonsense ‘relationship between the

distribution of controlled substances . . . and the possession and use of dangerous weapons.’”

(quoting Logan v. Commonwealth, 19 Va. App. 437, 445, 452 S.E.2d 364, 369 (1994) (en

banc))).

       The trial court admitted, without objection from appellant, proof of his status as a

convicted felon, a necessary element to obtain a conviction under Code § 18.2-308.2. Appellant

had been previously convicted of possession of a firearm by a felon, classified as a violent felony

under Code § 17.1-805. Accordingly, the proof required the jury to fix appellant’s sentence to a

mandatory sentence of five years imprisonment. Code § 18.2-308.2. We therefore conclude any

claim of prejudice from the drug evidence as to sentencing by the jury to be without merit.

                                               -4-
                                        III. CONCLUSION

       For the reasons stated above, we conclude that the trial court did not err in admitting

evidence that appellant possessed cocaine at the time of his arrest for possession of a firearm by a

convicted felon. We, therefore, affirm appellant’s conviction.

                                                                                       Affirmed.




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