                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Willis, and Bray


SEAN S. YOUNG, s/k/a
 SEAN STERLING YOUNG
                                         MEMORANDUM OPINION * BY
v.           Record No. 0562-95-3        JUDGE RICHARD S. BRAY
                                             MARCH 5, 1996
COMMONWEALTH OF VIRGINIA


                FROM THE CIRCUIT COURT OF HENRY COUNTY
                       David V. Williams, Judge
             (Robert A. Williams; Williams, Luck &
             Williams, on brief), for appellant.

             (James S. Gilmore, III, Attorney General;
             Margaret Ann B. Walker, Assistant Attorney
             General, on brief), for appellee. Appellee
             submitting on brief.



     Sean Sterling Young (defendant) was convicted in a bench

trial for possessing a firearm after having been convicted of a

felony in violation of Code § 18.2-308.2(A).    On appeal,

defendant challenges the sufficiency of the evidence to support

the conviction.    We affirm the judgment of the trial court.

     The parties are fully conversant with the record in this

case, and we recite only those facts necessary to a disposition

of this appeal.

     Under familiar principles of appellate review, the evidence

is viewed in the light most favorable to the Commonwealth,

granting to it all reasonable inferences fairly deducible

therefrom.     Martin v. Commonwealth, 4 Va. App. 438, 443, 358
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
S.E.2d 415, 418 (1987).    The judgment of a trial court, sitting

without a jury, is entitled to the same weight as a jury verdict

and will be disturbed only if plainly wrong or without evidence

to support it.    Id.   The credibility of a witness, the weight

accorded the testimony, and the inferences to be drawn from

proven facts are matters solely for the fact finder's

determination.    Long v. Commonwealth, 8 Va. App. 194, 199, 379

S.E.2d 473, 476 (1989).
     As Chad Hall entered a convenience store on the evening of

December 28, 1993, he observed defendant in the driver's seat of

a Toyota automobile parked "over to the side near the pay

phone." 1   When Hall exited the store and proceeded toward his

vehicle, defendant inquired, "what [he] was tripping on," the two

exchanged "angry words," and defendant asked Hall to "follow him

up the road."    Defendant was accompanied by three passengers, two

women seated in the rear and a man in the front.

     Hall, anticipating a "fist fight," followed the vehicle

operated by defendant to a nearby parking lot, stopped, and

exited his car.    The Toyota also stopped and, as Hall approached

the car, the window on the "driver's side" "rolled down," and

"bullets" began to "fly out of it."      Hall quickly "retreated

. . . to [his] car[,] . . . grabbed [his] gun and shot back."

The Toyota, still operated by defendant, then quickly left the

     1
      The evidence does not disclose that defendant was the owner
of the vehicle.




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area.

        Kerri Bradley was the female passenger seated immediately

behind defendant in the Toyota and had seen a gun "under

[defendant's] seat, in front of [her]," while at the store.

Gerald Norman, the male front seat passenger, had then instructed

Bradley to "be careful and to push it back under the seat."

Later, en route to the parking lot, Norman "reached back to get

[the gun]," and "just held it."     Once at the lot, defendant

directed both women in the rear seat "to duck" and, thirty

seconds to a minute thereafter, Bradley heard gunshots which

"sounded like they were coming from the car that [she] was in."

Bradley "glanced up," saw a "gun sticking out of the driver's

side window" and "ducked back down."     She was unable to identify

the person holding the gun, but testified that "it looked like"

defendant.
        Code § 18.2-308.2(A) provides that "[i]t shall be unlawful

for . . . any person who has been convicted of a felony 2 . . . to

knowingly and intentionally possess . . . any firearm."        Either

actual or constructive possession constitutes a violation of the

statue.     Blake v. Commonwealth, 15 Va. App. 706, 708-09, 427

S.E.2d 219, 220-21 (1993).     In assessing the sufficiency of

evidence to establish constructive possession of a firearm, we

are guided by those principles which govern such possession of

controlled substances.     Id. at 708, 427 S.E.2d at 220.
        2
         Defendant's prior felony conviction was undisputed.




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           "'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."'"
           "While 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."


Pemberton v. Commonwealth, 17 Va. App. 651, 654, 440 S.E.2d 420,

422 (1994) (citations omitted).   It is not necessary that

possession "'always be exclusive.      The defendant may share it

with one or more.'"   Blake, 15 Va. App. at 708, 427 S.E.2d at

220-21 (citation omitted).

     Here, defendant was the operator of the vehicle, and the gun

was initially hidden beneath his seat.     After exchanging "angry

words" with Hall, defendant asked Hall to "follow him up the

road" and proceeded to the parking area where both vehicles

stopped.   Meanwhile, Norman had taken actual possession of the

firearm.   Immediately prior to the gunfire, defendant directed

the women in the rear seat "to duck."     The driver's window was

lowered, and "bullets fl[ew] out."     The weapon was observed

"sticking out of the driver's side window," while Norman remained

in the passenger seat.   Assuming, without deciding, that such

evidence failed to sufficiently prove defendant's actual

possession of the firearm, the record clearly established that he

was aware of its presence and character, sharing its dominion and



                               - 4 -
control with Norman while the weapon was employed incidental to a

confrontation initiated and pursued by defendant.   Defendant,

therefore, constructively possessed the firearm.    See id. at 709,

427 S.E.2d at 221.

     Accordingly, we affirm the conviction.

                                              Affirmed.




                              - 5 -
BENTON, J., dissenting.



     "[W]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 Inge v.

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).

"Suspicion, however, no matter how strong, is insufficient to

sustain a criminal conviction."     Stover v. Commonwealth, 222 Va.

618, 624, 283 S.E.2d 194, 197 (1981).

     The evidence proved that the accused was driving an

automobile with three passengers.     No evidence proved that the

automobile belonged to the accused or that the accused knew of

the gun's presence on the floor.    The evidence failed to prove

that the accused ever touched the gun.

     The evidence proved that the passengers sitting on the rear

seat behind the driver saw a gun on the floor board.    The gun

apparently was located near the rear of the driver's seat.    When

the passenger mentioned the presence of the gun, Gerald Norman,

who was sitting on the front seat told the passenger to "stick it

up under the seat."

     The evidence proved only that Norman had prior knowledge

that the gun was in the automobile.    The evidence also proved

that Norman reached under the seat to retrieve the gun and was

the only person in the car that handled the gun.    Norman was


                              - 6 -
holding the gun when several men approached the automobile and

the accused said "duck."   No evidence proved that Norman was not

the person who fired the gun.

     Ruling that the evidence in Hancock v. Commonwealth, 21 Va.

App. 466, 465 S.E.2d 138 (1995), was insufficient to prove

constructive possession, we said:
          No evidence established that [the accused]
          ever held the firearm, saw it [before it was
          discharged], knew it was present, or
          exercised any dominion and control over it.
          The facts established no more than a mere
          suspicion . . . that he knew the firearm was
          under the driver's seat. The evidence must
          rise beyond "the realm of probability and
          supposition." "'Circumstances of suspicion,
          no matter how grave or strong, are not proof
          of guilt sufficient to support a [guilty]
          verdict . . . beyond a reasonable doubt.'"
          Proof that the firearm was located close to
          [the accused] was not sufficient to prove the
          elements of the offense beyond a reasonable
          doubt.

Id. at 472, 465 S.E.2d at 141-42 (citations omitted).    As in

Hancock, this evidence in this case failed to prove that the

accused had prior knowledge of the presence of the gun in the car

and failed to prove that the gun was "subject to his dominion and

control."   Garland, 225 Va. at 184, 300 S.E.2d 784.    Thus, I

would hold that the evidence failed to prove beyond a reasonable

doubt that the accused constructively possessed the gun.




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