                                COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Petty and Beales
Argued at Richmond, Virginia


STEVEN PREVONCE LAMB
                                                                MEMORANDUM OPINION * BY
v.      Record No. 2832-09-1                                    JUDGE RANDOLPH A. BEALES
                                                                    FEBRUARY 8, 2011
COMMONWEALTH OF VIRGINIA


                  FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
                               Frederick H. Creekmore, Judge

                  James O. Broccoletti (Zoby & Broccoletti, P.C., on brief), for
                  appellant.

                  Craig W. Stallard, Assistant Attorney General (Kenneth T.
                  Cuccinelli, II, Attorney General, on brief), for appellee.


        Steven Prevonce Lamb (appellant) challenges the sufficiency of the evidence supporting his

conviction for possession of a firearm by a convicted felon, a violation of Code § 18.2-308.2(A)(i).

Specifically, appellant contends the trial court erred in finding that he constructively possessed the

firearm that was found in the vehicle that appellant was driving. Given the standard of review in

this case, we find that a rational factfinder could conclude that the evidence was sufficient to prove

beyond a reasonable doubt that appellant was guilty of possession of the firearm. Therefore, we

affirm his conviction.

                                           Standard of Review

        When the sufficiency of the evidence supporting a conviction is challenged on appeal, we

must affirm the trial court’s judgment if “‘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,

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
257, 584 S.E.2d 444, 447 (2003) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). “‘The judgment of a trial court sitting without a jury is entitled to the same weight as a

jury verdict and will not be set aside unless it appears from the evidence that the judgment is

plainly wrong or without evidence to support it.’” Wilkins v. Commonwealth, 18 Va. App. 293,

295, 443 S.E.2d 440, 442 (1994) (en banc) (quoting Martin v. Commonwealth, 4 Va. App. 438,

443, 358 S.E.2d 415, 418 (1987)). In such cases, this Court views the evidence in the light most

favorable to the party who prevailed before the trial court, here, the Commonwealth. Dunbar v.

Commonwealth, 29 Va. App. 387, 393, 512 S.E.2d 823, 826 (1999). We “must discard all

evidence of the accused that conflicts with that of the Commonwealth and regard as true all

credible evidence favorable to the Commonwealth and all fair inferences reasonably deducible

therefrom.” Lea v. Commonwealth, 16 Va. App. 300, 303, 429 S.E.2d 477, 479 (1993). “The

credibility of the witnesses and the weight accorded the evidence are matters solely for the fact

finder who has the opportunity to see and hear that evidence as it is presented.” Sandoval v.

Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995).

                                             Analysis

       “A conviction for knowingly and intentionally possessing a firearm after having been

convicted of a felony, see Code § 18.2-308.2, requires proof beyond a reasonable doubt of either

actual or constructive possession of the firearm.” Hancock v. Commonwealth, 21 Va. App. 466,

468, 465 S.E.2d 138, 140 (1995); see Rawls v. Commonwealth, 272 Va. 334, 349, 634 S.E.2d

697, 705 (2006). 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 defendant was aware of both the presence and

character of the substance and that it was subject to his dominion and control.’” Drew v.

Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v.

                                                -2-
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). While sufficient evidence of

guilt is proven neither by mere proximity to the firearm nor by mere “occupancy of the

premises” where a firearm is found, both proximity and occupancy are relevant factors that a

factfinder can consider in determining guilt. Rawls, 272 Va. at 350, 634 S.E.2d at 705.

          “[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) (quoting Carter v. Commonwealth, 223 Va. 528, 532, 290 S.E.2d 865,

867 (1982)). However, “[m]erely because [a] defendant’s theory of the case differs from that

taken by the Commonwealth does not mean that every reasonable hypothesis consistent with his

innocence has not been excluded. What weight should be given evidence is a matter for the

[factfinder] to decide.” Miles v. Commonwealth, 205 Va. 462, 467, 138 S.E.2d 22, 27 (1964).

“The Commonwealth is not required to prove that there is no possibility that someone else may

have planted, discarded, abandoned or placed the [contraband].” Brown v. Commonwealth, 15

Va. App. 1, 10, 421 S.E.2d 877, 883 (1992). Rather, the evidence must support a finding that the

accused “had actual knowledge” that the firearm was present, Hancock, 21 Va. App. at 469, 465

S.E.2d at 140, and that the accused had sufficient access to the firearm to bring it under his

dominion and control, Smallwood v. Commonwealth, 278 Va. 625, 631, 688 S.E.2d 154, 157

(2009).

          Here, Officer Michael Cusumano stopped appellant because he was driving a car with a

malfunctioning rear tag light, and appellant provided his driver’s license, but claimed that he

could not find his registration. Because the officer had smelled marijuana while talking with

appellant, the officer asked appellant to get out of the car. The officer turned appellant over to

Officer Spruill and then returned to appellant’s car to search it. Officer Cusumano opened the

                                                 -3-
driver’s side door. He testified that he “immediately looked down” towards the floorboard and

saw “the black grip of a pistol sticking out from underneath the front driver’s seat” while he was

standing beside the car. The barrel of the gun was pointed toward the back seat. At trial, the

officer demonstrated for the trial court how the nine-millimeter firearm was lying on the

floorboard. Officer Cusumano did not see the gun while appellant was in the car because the

officer was more concerned about watching appellant’s hands than about looking at the

floorboard, and because the gun’s position was apparently underneath appellant’s legs as he sat

in the driver’s seat. Appellant – the only person in the car – was arrested after the officer saw the

gun. Officer Cusumano later discovered that the firearm had been stolen a year earlier from its

owner in Norfolk.

       After his arrest, appellant told the officer that the vehicle belonged to his cousin, but

Officer Cusumano was never able to confirm that assertion. In fact, his inquiries at the

Department of Motor Vehicles indicated that the car belonged either to a dealership or to

someone other than appellant’s cousin. The officer was “unable to get” any information about

his cousin from appellant, who claimed that he did not know his cousin’s address or phone

number. Appellant also told the officer that he did not know that the gun was there.

       In this case, the firearm was clearly visible to anyone opening the driver’s side door. 1

See Redmond v. Commonwealth, 57 Va. App. 254, 266, 701 S.E.2d 81, 87 (2010) (noting that,



       1
          Because the trial court had an opportunity to observe the officer’s demonstration of the
placement of the gun, and the record does not include any videotape of that demonstration, we
are particularly mindful that our standard of review requires deference to the factfinder who had
the opportunity to see and review all the evidence here. See James v. Commonwealth, 53
Va. App. 671, 677, 674 S.E.2d 571, 574 (2009) (“Faced with a challenge to the sufficiency of the
evidence, ‘we must give trial courts and juries the wide discretion to which a living record, as
distinguished from a printed record, logically entitles them. The living record contains many
guideposts to the truth which are not in the printed record; not having seen them ourselves, we
should give great weight to the conclusions of those who have seen and heard them.’” (quoting
Bradley v. Commonwealth, 196 Va. 1126, 1136, 86 S.E.2d 828, 834 (1955))).
                                                -4-
“[j]ust as [Officers] Flagg and Clutz could observe the firearms in plain sight during their

walk-through of the house, so could appellant.”). In addition, the firearm was within appellant’s

easy reach, with the grip of the gun easily accessible to him as he sat in the car.

       Although appellant claims that someone else could have left the gun under the seat, the

evidence in this record does not indicate that anyone else had access to the gun to the exclusion

of appellant. See Smallwood, 278 Va. at 631-32, 688 S.E.2d at 157 (discussing joint possession

of a firearm). Appellant’s contention that he got the car from his cousin is not supported by the

evidence, especially as Officer Cusumano’s inquiries at DMV were not able to confirm that his

cousin ever owned the car. In addition, there is no evidence in this record that appellant

slammed on his brakes when stopped by the officer, which might have caused the gun to move

forward from an obscured position under the seat. Therefore, the totality of the circumstantial

evidence in this case supports the trial court’s finding that appellant knew that the firearm was

present and that he had sufficient access to the firearm to bring it under his dominion and control.

       Appellant contends that Coward v. Commonwealth, 48 Va. App. 653, 659, 633 S.E.2d

752, 754 (2006), where we reversed a conviction for cocaine possession, should control here.

However, in that case the Commonwealth was required to prove that Coward knew the small

item in the clear plastic baggie on the car’s console was cocaine, but the evidence did not prove

that Coward was familiar with cocaine. Id. at 659-60, 633 S.E.2d at 754-55. In other words, the

Commonwealth did not prove Coward was aware of the nature of the substance in the baggie.

Here, in contrast, the nature of the item under the seat (i.e., that it was a firearm) was not in

question. The item that was visible upon entering the vehicle was obviously a grip to a firearm.

Appellant had prior convictions for possessing a concealed weapon, so he clearly could not

argue, and did not argue, that he was not familiar with firearms.




                                                 -5-
        In addition, appellant made statements to the officer contending that the car did not

belong to him – statements made only after the firearm was discovered – clearly attempting to

conceal his connection to the weapon. In contrast, Coward neither did nor said anything

suspicious either before or after the cocaine was discovered. Also, Coward was not in control of

the car in which the officer observed the cocaine. Instead, he was a passenger in a car that

actually belonged to the driver’s mother. Id. at 656, 633 S.E.2d at 753. Here, in contrast, when

Officer Cusumano stopped the car, appellant was in absolute control of the vehicle. He was the

driver and the only person in the car. Overall, although appellant claims this Court’s decision in

Coward is controlling, that case presented a very different set of facts from those in the case

before us here. 2

        Appellant also argues that Hancock, 21 Va. App. at 472, 465 S.E.2d at 141, in which we

reversed a conviction for possession of a firearm by a convicted felon, applies here. There, as

was the situation with the defendant in Coward, Hancock made no statements that created any

suspicion. Id. at 468, 465 S.E.2d at 139-40. However, in this case, appellant did make

statements that were highly suspicious. 3 In addition, unlike the facts here, Hancock was one of

five people in a car, and he was not driving. Id. Here, appellant had absolute control of the car

in which the firearm was found. Also, in contrast to the case before us, the trial court in Hancock


        2
         Appellant also discusses Jones v. Commonwealth, 17 Va. App. 572, 439 S.E.2d 863
(1994), which is similar to Coward in that Jones was charged with possession of drugs (not a
firearm), was not the only person in the car, and made no suspicious movements or statements.
Thus, for the same reasons discussed supra, we also find that Jones is very different from the
facts here.
        3
         Appellant’s statement to Officer Cusumano was partially true – i.e., in that appellant did
not own the vehicle. However, appellant also claimed that his cousin, whom appellant indicated
he did not know how to reach, owned the car. “Viewing the evidence in the light most favorable
to the Commonwealth, as we must since it was the prevailing party in the trial court,” Riner v.
Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004), the DMV records simply did not
support appellant’s claim.

                                                -6-
was not presented with a demonstration of the placement of the firearm. Based on that

demonstration and on the officer’s testimony that the gun was obviously visible when a person

opened the driver’s side door (as long as no one was sitting in the driver’s seat), the trial court

could reasonably infer that appellant saw the gun and knew it was there when he opened that

door to get into the driver’s seat and drive the car.

       For all the foregoing reasons, we find the trial court did not err in convicting appellant.

                                             Conclusion

       Based on the evidence adduced at trial, a rational factfinder could conclude that appellant

had knowledge of the presence of the firearm situated underneath the driver’s seat and that the

gun was subject to his dominion and control. Therefore, we affirm appellant’s conviction for

possession of a firearm by a convicted felon.

                                                                                            Affirmed.




                                                 -7-
Elder, J., dissenting.

        The majority holds “a rational factfinder could conclude that appellant had knowledge of

the presence of the firearm situated underneath the driver’s seat and that the gun was subject to

his dominion and control.” Although I agree the evidence establishes appellant could have

exercised dominion and control over the firearm based on his proximity to it in this admittedly

close case, the record fails to support a finding that he “had actual knowledge” of the firearm’s

presence in the vehicle. Hancock v. Commonwealth, 21 Va. App. 466, 469, 465 S.E.2d 138, 140

(1995). Because the evidence is insufficient as a matter of law to support a conviction for

possession of a firearm by a convicted felon without proof “‘that the defendant was aware of

both the presence and character of the [item] and that it was subject to his dominion and

control,’” Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986) (emphasis

added) (quoting Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)), I

respectfully dissent.

        When addressing an accused’s challenge to the sufficiency of the evidence, we must, as

the majority rightly asserts, “discard all evidence of the accused that conflicts with that of the

Commonwealth and regard as true all credible evidence favorable to the Commonwealth and all

fair inferences reasonably deducible therefrom.” Lea v. Commonwealth, 16 Va. App. 300, 303,

429 S.E.2d 477, 479 (1993). However, the rejection of conflicting evidence does not support a

rejection of reasonable hypotheses of innocence where the evidence does not disprove them. In

other words, if, after consideration of all of the incriminating evidence supporting a conviction, a

reasonable hypothesis of innocence still exists, we must reverse. It is here where I believe the

majority errs by rejecting the hypothesis that appellant operated the vehicle without knowing a

partially obscured firearm lay underneath the driver’s seat. The evidence does not prove

appellant’s hypothesis of innocence, but it also does not affirmatively disprove that hypothesis.

                                                -8-
       In Hancock, a decision that I believe controls the present case, we reversed the

defendant’s conviction for possession of a firearm by a convicted felon because “[n]o evidence

established that Hancock ever held the firearm, saw it, knew it was present or exercised any

dominion and control over it.” 21 Va. App. at 472, 465 S.E.2d at 141. There, an officer

responded to a citizen’s complaint that shots had been fired from a vehicle. Upon finding the

vehicle that matched the description in the dispatch, the officer requested each of the five

occupants to exit the vehicle one at a time. As the defendant picked his feet up to exit the

vehicle, the officer observed a revolver on the floorboard under the driver’s seat. The officer

testified “he could not see the firearm until Hancock ‘stepped out [because] his feet were on top

of it.’” Id. at 468, 465 S.E.2d at 139. Because these “facts established no more than a mere

suspicion that the firearm was possessed by Hancock or that he knew the firearm was under the

driver’s seat,” we reversed his conviction. Id. at 472, 465 S.E.2d at 141.

       The key justification for reversing the conviction in Hancock was that “[n]o evidence

proved that Hancock could see the firearm.” 4 Id. Similarly, no evidence in this case proved that

appellant could see the firearm as he entered the vehicle. The majority assumes that because

Officer Cusumano observed the grip of the firearm, “the firearm was clearly visible to anyone

opening the driver’s side door.” 5 However, the evidence in the record establishes that Cusumano


       4
         Although Hancock mentions other pieces of evidence that distinguish it from the case at
hand—namely, the presence of four additional occupants of the vehicle compared to appellant’s
sole occupancy of the vehicle—these facts were not the focus of the decision. Instead, both this
case and Hancock revolve around the location of the firearm and its relative obscurity from view.
In any event, because contraband can be possessed jointly, a defendant may know of the
presence of contraband when he is the only one in the area or when multiple people are nearby.
       5
          The facts in Redmond v. Commonwealth, 57 Va. App. 254, 701 S.E.2d 81 (2010), upon
which the majority cites, contrast significantly with this case. In that case, the officers received
information that the defendant was in illegal possession of firearms. To verify this information,
the officers scheduled a tour of the defendant’s residence with a real estate agent, as the house
had been listed on the market. During the walkthrough, the officers observed “a wooden gun
cabinet with glass panels,” where “[s]everal long guns were visible in the case.” Id. at 256, 701
                                                -9-
failed to notice its presence until after appellant had exited the vehicle. Like the majority, I do

not fault Cusumano for being “more concerned about watching appellant’s hands than about

looking at the floorboard.” However, it is equally likely that appellant was also distracted when

he entered the vehicle. It does not strain the imagination to believe a person who enters a vehicle

does not automatically search the floorboard for contraband. Indeed, only by scrutinizing the

floorboard after appellant had been detained outside the vehicle did Cusumano discover the

firearm. Cusumano did not testify that he saw appellant look at the floorboard, make any furtive

gestures, or conduct an investigation of the floorboard similar to Cusumano’s investigation that

led to the firearm’s discovery. See Coward v. Commonwealth, 48 Va. App. 653, 660, 633

S.E.2d 752, 755 (2006) (noting that although the officer was able to see the contraband with

illumination from his flashlight, “there was no evidence that the baggie would have been visible

in the darkness of the passenger compartment without such additional lighting”); Hancock, 21

Va. App. at 472, 465 S.E.2d at 141 (noting “no evidence proved that Hancock could see the

firearm” because “the officer testified that he could not see the firearm on the floor when the

passengers were in the vehicle”). Moreover, the firearm did not contain appellant’s fingerprints.

E.g., Hancock, 21 Va. App. at 470, 465 S.E.2d at 140. Because such evidence is lacking in this

record, a reasonable hypothesis of innocence flowing from the evidence is that appellant had no

knowledge of the firearm’s presence when he entered and operated the vehicle.

       Of course, an accused’s statements can establish the requisite awareness of the character

and nature of the contraband. See Smallwood v. Commonwealth, 278 Va. 625, 628, 631, 688



S.E.2d at 82. We discounted the defendant’s argument that he did not know of the presence,
nature, and character of the guns found on the premises because “[j]ust as [the officers] could
observe the firearms in plain sight during their walk-through of the house, so could [the
defendant].” Id. at 266, 701 S.E.2d at 87 (emphasis added). In that context, the officers
observed the firearms in a receptacle designed to showcase its contents and draw the casual
observer’s eye. It is a stretch to extend that rationale to the present case where the firearm was
underneath the driver’s seat such that only the grip was visible.
                                                 - 10 -
S.E.2d 154, 155, 157 (2009) (observing the defendant’s “own statements establish[ed] that he

was aware of the presence and character of the firearm” when he admitted to the arresting officer

that “he thought it was fine [to be near the firearm] as long as [the firearm’s true owner] was in

the car”). It is in that respect that the majority attempts to distinguish Hancock by asserting that

appellant made “highly suspicious” statements linking him to the firearm, referring to appellant’s

denial of ownership of the vehicle. However, this denial does not constitute a “‘statement . . .

proving that [appellant] was aware of the presence and character of the firearm.’” 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)). By denying ownership of the

vehicle, appellant made no affirmative statement concerning the firearm. See Smallwood, 278

Va. at 628, 688 S.E.2d at 155. Remarkably, the majority finds appellant’s statements to be

suspicious and indicative of guilty knowledge despite the fact he told Cusumano the truth: the

vehicle did not actually belong to appellant. 6 The record sheds no light on the connection

between appellant and the vehicle’s true owner, and I find no insidious inference that disproves

appellant’s reasonable hypothesis of innocence. See Hancock, 21 Va. App. at 470, 465 S.E.2d at

141 (“[C]ircumstantial evidence requires the Commonwealth to exclude every reasonable

hypothesis of innocence.” (emphasis added)). In fairness to the majority, appellant gave


       6
          It would therefore appear that a defendant evinces guilty knowledge where he admits to
ownership, e.g., Smallwood, 278 Va. at 628, 688 S.E.2d at 155, denies ownership, e.g., supra at
4-5, or says nothing at all, cf. Scott v. Commonwealth, 55 Va. App. 166, 174, 684 S.E.2d 833,
838 (2009) (noting that when considering whether the defendant possessed multiple types of
drugs with intent to distribute, his “assertion that he uses one type of drug, contrasted with his
silence regarding the use of the other type ‘undermine[ed] [the defendant]’s argument that
personal use is the only reasonable hypothesis of possession’” (quoting Harper v.
Commonwealth, 49 Va. App. 517, 522, 642 S.E.2d 779, 781 (2007))). See generally United
States v. Broomfield, 417 F.3d 654, 655 (7th Cir. 2005) (Posner, J.) (“Whether you stand still or
move, drive above, below, or at the speed limit, you will be described by the police as acting
suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an
ineffable intuition should not be credited.”).

                                               - 11 -
Cusumano vague answers regarding a cousin who may or may not have existed. The majority

suggests that because the DMV records did not support this claim, appellant somehow evinced

guilty knowledge of the firearm. However, at the time of appellant’s arrest, the title search

traced the ownership to a dealership; the officers did not learn of the identity of the vehicle’s true

owner until appellant’s trial approximately four months later. In other words, the officers had no

evidence to disprove what appellant told them at the time of his arrest. Without more,

appellant’s lack of forthrightness does not exclude the reasonable hypothesis that he did not

know of the presence of the partially obscured firearm. See Tarpley v. Commonwealth, 261 Va.

251, 257, 542 S.E.2d 761, 764 (2001) (“[T]he trial court’s rejection of [an accused’s] testimony

does not provide a factual basis for establishing [an element of a crime] beyond a reasonable

doubt.”).

       In this close case, I do not believe the evidence disproves all reasonable hypotheses of

innocence. Far too many holes exist in the record regarding whether appellant had actual

knowledge of the firearm’s presence in the vehicle he was operating. Cusumano did not see the

firearm until after he focused on the floorboard, and it is reasonable to believe appellant likewise

did not scrutinize the vehicle when he first entered it. Further, appellant made no furtive gestures

towards the firearm after Cusumano pulled his vehicle over, and appellant’s fingerprints were not

found on the firearm. Without more, we are left to speculate as to whether appellant knew the

firearm was underneath his seat. Thus, I respectfully dissent from the majority’s affirmance of

appellant’s conviction.




                                                - 12 -
