                     COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia


CHRISTOPHER FRANCIS FLOWERS, S/K/A
 CHRISTOPHER F. FLOWERS, III
                                          MEMORANDUM OPINION * BY
v.          Record No. 0128-97-1          JUDGE JOSEPH E. BAKER
                                             JANUARY 27, 1998
COMMONWEALTH OF VIRGINIA


         FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                     Edward W. Hanson, Jr., Judge
            James O. Broccoletti (Zoby & Broccoletti, on
            brief), for appellant.

            H. Elizabeth Shaffer, Assistant Attorney
            General (Richard Cullen, Attorney General, on
            brief), for appellee.



     Christopher Francis Flowers (appellant) appeals from his

bench trial conviction by the Circuit Court of the City of

Virginia Beach (trial court) for possessing a firearm after

having been convicted of a felony in violation of Code

§ 18.2-308.2.    He contends the evidence is insufficient to prove

he possessed a firearm as charged in the indictment.    We agree

and reverse the conviction.

     On December 2, 1995, pursuant to a complaint of unlawful gun

possession, Virginia Beach Police Officers S. E. Jerrome and

D. A. Randler went to the Beach Grill in Virginia Beach.     Randler

was the first to arrive and observed appellant and his brother,

James, standing in front of the grill.    Appellant had "a visible
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
swollen injury on . . . his forehead" and appeared to be

intoxicated.   Randler had been advised by Jerrome that appellant

was a convicted felon in possession of a gun, and the officers

intended to make inquiry concerning that complaint. 1   With

permission, the officers entered the grill and were escorted

behind the bar to an office area.   The office was small, "maybe

two or three paces deep," and was where "[appellant] would do

paperwork and business for the bar."    A person standing in the

middle of the office could touch the shelves on both walls.
     Appellant cooperated fully with the police.    Randler asked

appellant if he was a convicted felon and "if there was a gun on

the premises."   Appellant responded that he was a convicted felon

and that "he had one in the office."    Randler asked appellant "to

take [him] to where the pistol was."    In response, appellant

pointed to a shelf in the office, but the gun was not there.

Sometime prior thereto, James had moved the gun "for safety."

Randler stated that he "did not see [appellant] in possession of

the pistol" and that, although forensics had tested it, they were

unable to find any of appellant's fingerprints on it.    When

Randler asked to take possession of the gun, James left the

office, "went to the kitchen of the restaurant area," and

returned with a gun.   Randler did not know "where [James]

retrieved it from."    James gave the gun to Randler, who then

     1
      That information was hearsay from an unrelated case not
relevant to the matter before us.




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arrested appellant for possession of a firearm after being

convicted of a felony.

     When appellant was arrested and read his Miranda rights, he

made a written statement in which he said that the gun belonged

to his wife who, with appellant's father, owned the grill; that

the gun was given to his wife by Mike Blasko "for protection";

that appellant knew he could not possess a gun but did not know

he could not be in the same area as a gun; that the night

managers were aware of the gun; and that all night employees were

female.   Appellant's employment was limited to "paperwork," and

he was not shown to be a "night manager."
     The record does not show that appellant ever physically

touched the gun, nor does it show when appellant actually may

have had access to it.   James "retrieved" the gun from atop the

cooler in the kitchen area that served the restaurant, and the

evidence did not show where that location was in relation to the

office in which appellant worked.   Although there is no evidence

of that distance, and none to show that appellant ever physically

touched the gun, the Commonwealth argues that the evidence shows

appellant constructively possessed the gun.   It asserts that

Randler's testimony should be construed to prove appellant

admitted that, as a convicted felon, he unlawfully constructively

possessed the gun and, therefore, on the evidence contained in

this record, the judgment of the trial court should be affirmed.

We disagree.



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     The Commonwealth relies on Blake v. Commonwealth, 15 Va.

App. 706, 427 S.E.2d 219 (1993), as authority for its

constructive possession theory.    In Blake, in which we applied

the principles of constructive possession of controlled

substances, we said, "[t]o prove constructive possession of

drugs, the Commonwealth must show that the defendant was 'aware

of both the presence and character of the substance and that it

was subject to his dominion and control.'"     Id. at 708, 427

S.E.2d at 220 (quoting Powers v. Commonwealth, 227 Va. 474, 476,
316 S.E.2d 739, 740 (1984)).   Although "proximity to a controlled

substance is insufficient alone to establish possession, it is a

factor to consider when determining whether the accused

constructively possessed drugs."     Brown v. Commonwealth, 15 Va.

App. 1, 9, 421 S.E.2d 877, 882 (1992) (en banc); see Blake, 15

Va. App. at 708, 427 S.E.2d at 220.
          However, in order for . . . occupancy of
          property . . . to be sufficient to support
          the inference that the . . . occupant also
          possessed contraband that was located on the
          property . . . , the . . . occupant must be
          shown to have exercised dominion and control
          over the premises and to have known of the
          presence, nature, and character of the
          contraband at the time of such . . .
          occupancy.


Burchette v. Commonwealth, 15 Va. App. 432, 435, 425 S.E.2d 81,

83-84 (1992) (emphasis added).

     Applying the principles adopted in Blake, this record must

show not only that appellant was "aware of the presence" of the

gun but also that, at the time charged in the indictment, he had


                                 - 4 -
dominion and control over the gun.       When we view the evidence in

the light most favorable to the Commonwealth, granting to it all

reasonable inferences fairly deducible therefrom, we find that

the evidence fails to prove beyond a reasonable doubt that

appellant knowingly and intentionally exercised dominion and

control over the weapon at the time charged in the indictment.

The evidence failed to prove that appellant had access to the gun

at that time, even though he initially thought he did.       See
Burchette, 15 Va. App. at 435-36, 425 S.E.2d at 83-84 (holding

evidence insufficient to prove constructive possession of

marijuana found in accused's car where, among other things,

record contained no evidence permitting reasonable inference

"that [the accused] occupied the vehicle or . . . exercised

dominion and control over it while the marijuana was present in

it").    Although the Commonwealth is not required to prove the

precise date on which the offense occurred, see Marlowe v.

Commonwealth, 2 Va. App. 619, 347 S.E.2d 167 (1986); see also

Code § 19.2-226(6), it cannot leave to the fact finder's

speculation when the offense may have occurred.

        Here, the evidence discloses that appellant worked in a

small office where a gun had been kept at an undetermined time.

The gun belonged to one of the owners of the grill and was kept

for the benefit of the night managers.      No evidence proved that

appellant was a night manager.    The evidence revealed that the

office in which appellant worked when he was on the premises was



                                 - 5 -
one of three places the gun may have been kept, but it was not

shown to have been in the office on or about the date of

appellant's arrest.    Although it reasonably could be inferred

from this record that the gun had been in the office at a time

other than the day of appellant's arrest, the Commonwealth failed

to prove beyond a reasonable doubt that appellant was present in

the office at the same time as the gun, on or about the date

alleged in the indictment.    See Burchette, 15 Va. App. at 435-36,

425 S.E.2d at 83-84.
     For that reason, we hold that the evidence was insufficient

to establish the elements of the offense charged.      Therefore, we

reverse the judgment of the trial court and enter final judgment

dismissing the indictment.

                                        Reversed and final judgment.




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