                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Annunziata
Argued at Richmond, Virginia


VALETON PRATT

v.       Record No. 0793-94-2           MEMORANDUM OPINION * BY
                                      JUDGE ROSEMARIE ANNUNZIATA
COMMONWEALTH OF VIRGINIA                   OCTOBER 24, 1995


            FROM THE CIRCUIT COURT OF MECKLENBURG COUNTY
                  Charles L. McCormick, III, Judge

            Buddy A. Ward, Public Defender (Robert H.
            Morrison, Assistant Public Defender; Office
            of the Public Defender, on brief), for
            appellant.

            Eugene Murphy, Assistant Attorney General
            (James S. Gilmore, III, Attorney General;
            Robert B. Condon, Assistant Attorney General,
            on brief), for appellee.



     Appellant appeals his conviction for possession of a firearm

after having been previously convicted of a felony on the ground

the evidence is not sufficient to support the conviction.   For

the reasons stated below, the conviction is affirmed.

     On November 14, 1993, officers of the South Hill Police

Department received a dispatch to investigate a report that a man

was holding "a gun or a knife on a female in a white vehicle"

located in the parking lot of a department store.

     When they arrived at the lot, the officers saw only one

occupied, white car parked there.   The passenger door was open.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Pratt was holding a baby and seated in the passenger's seat while

his wife, the owner of the car, occupied the driver's seat.    When

the officers approached the vehicle, Pratt closed the passenger

door.    The officers approached the car and asked Pratt "to put

the baby down."

        As he exited the car, Pratt held the baby and the officers

again requested that he put the baby down and "put his hands up."

Officer Harris testified, "As [Pratt exited the car], we could

see there was no weapon in his hands and [Pratt] was advised to

put his hands on the trunk of the car.    He refused, cursing and

telling us to shoot him."
        The officers handcuffed Pratt, but he "kept trying to get to

the female stating that he just wanted to talk to his wife."

Appellant refused to get into the police car and had to be

restrained before he was transported to police headquarters.

        Sergeant Sims testified that, "as a result of a witness'

statement at the scene," he went into the vehicle and found a .25

caliber gun on "the floorboard right where the passenger's seat

would have been where [Pratt] was sitting in the vehicle."    The

gun "was under the front edge of the seat directly underneath

where the passenger would be sitting."

        In reviewing the sufficiency of the evidence to support a

conviction, this Court's analysis is guided by well-established

principles.

             On appeal, we review the evidence in the
             light most favorable to the Commonwealth,



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             granting to it all reasonable inferences
             fairly deducible therefrom. The judgment of
             a trial court sitting without a jury is
             entitled to the same weight as a jury verdict
             and will not be disturbed on appeal unless it
             is plainly wrong or without evidence to
             support it.

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

(1987) (citations ommitted).

             We, as an appellate court, must "discard the
             evidence of the accused in conflict with that
             of the Commonwealth, and regard as true all
             the credible evidence favorable to the
             Commonwealth and all fair inferences to be
             drawn therefrom." "Additionally the
             credibility of witnesses and the weight to be
             given their testimony are questions
             exclusively within the province" of the fact
             finder.
May v. Commonwealth, 3 Va. App. 348, 355-56, 349 S.E.2d 428, 432

(1986) (citations ommitted).


     The same legal principles involved in the constructive

possession of controlled substances are applicable here.     Blake

v. Commonwealth, 15 Va. App. 706, 708, 427 S.E.2d 219, 220-21

(1993).
             Constructive possession may be established by
             "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 the character
             of the substance and that it was subject to
             his dominion and control."
Peterson v. Commonwealth, 5 Va. App. 389, 402, 363 S.E.2d 440,

448 (1987) (citations omitted).

          In determining whether Pratt constructively possessed

a firearm, his proximity to the firearm and his occupancy and




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ownership of the vehicle may also be considered.

          Ownership or occupancy of a vehicle or of
          premises . . . may be considered together
          with other evidence tending to prove that the
          owner or occupant exercised dominion and
          control over items in the vehicle or on the
          premises in order to prove that the owner or
          occupant constructively possessed the [item].
           Furthermore, proof that a person is in close
          proximity to the [item] is a relevant fact
          that, depending on the circumstances, may
          tend to show that, as an owner or occupant of
          property or of a vehicle, the person
          necessarily knows of the presence, nature and
          character of [the item] that is found there.


Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 369

(1994) (en banc) (citations omitted).

     The evidence in this case supports the trial court's finding

that Pratt was aware of the presence and character of the firearm

in the vehicle and that he exercised sufficient dominion and

control over it to constitute constructive possession.    The car

in which the gun was found belonged to his wife.   He occupied the

car with her, sitting in close proximity to the gun, in an area

which placed the gun within his immediate control.   Pratt's acts,

statements and conduct, when the police arrived on the scene,

together with his wife's demeanor, clearly related to the

reported abduction incident.    From the evidence, and all the

reasonable inferences to which the Commonwealth's evidence is

entitled, it cannot be said that the trial court's conclusion

that Pratt was aware of the presence and nature of the firearm

and that he had exercised dominion and control over it was, as a

matter of law, plainly wrong.    See Adkins v. Commonwealth, 217



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Va. 437, 438-39, 229 S.E.2d 869, 870 (1976).   Appellant's

conviction is therefore affirmed.

                                                          Affirmed.

Benton, J., dissenting.



     "The Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is charged."
 In re Winship, 397 U.S. 358, 364 (1970).   The Supreme Court of

Virginia has consistently held that convictions may not be based

upon speculation, surmise, or conjecture.
          It is, of course, a truism of the criminal
          law that evidence is not sufficient to
          support a conviction if it engenders only a
          suspicion or even a probability of guilt.
          Conviction cannot rest upon conjecture. The
          evidence must be such that it excludes every
          reasonable hypothesis of innocence.


Smith v. Commonwealth, 192 Va. 453, 461, 65 S.E.2d 528, 533

(1951).   See also Hyde v. Commonwealth, 217 Va. 950, 955, 234

S.E.2d 74, 78 (1977).

     These principles leave no room to doubt that in a case such

as this prosecution, where the Commonwealth relies upon

circumstantial evidence to prove guilt, the evidence must not

merely "raise a strong suspicion of guilt, . . . it [must be]

. . . wholly inconsistent with the innocence of [the]

defendant."   Foster v. Commonwealth, 209 Va. 326, 330, 163 S.E.2d

601, 604 (1968).   In other words, to prove beyond a reasonable



                               - 5 -
doubt that Pratt possessed the gun, the Commonwealth was required

to exclude every reasonable hypothesis that Pratt was unaware of

the presence of the gun.

     The Commonwealth has failed to "point to evidence of acts,

statements, or conduct of [Pratt] or other facts or circumstances

which tend to show that [Pratt] was aware of . . . the presence

. . . of the [gun]."   Powers v. Commonwealth, 227 Va. 474, 476,

316 S.E.2d 739, 740 (1984).   No evidence proved that Pratt owned

the gun, possessed the gun, or knew that the gun was under the

seat of the vehicle.   Pratt's wife owned the vehicle.   Proof that

the gun was under the seat in his wife's vehicle merely

established proximity, which "is not enough to establish

possession."   Id.

     As the Supreme Court stated in Willson v. Commonwealth, 160

Va. 913, 917, 168 S.E. 344, 345 (1933), and as pertinent to this

case, "[i]f all of the testimony introduced by the Commonwealth

is believed and all the reasonable inferences deduced therefrom

are properly considered and allowed against the accused and if

all of the testimony introduced in his behalf is discarded, the

fact still remains that his guilt, as a matter of law, has not

been proven beyond a reasonable doubt."   For these reasons, I

would reverse the conviction.




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