                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bumgardner and Retired Judge Smith ∗
Argued by teleconference


ZACHARY BARTH HAMLETT
                                           MEMORANDUM OPINION ∗∗ BY
v.   Record No. 1903-02-3              JUDGE RUDOLPH BUMGARDNER, III

COMMONWEALTH OF VIRGINIA


            FROM THE CIRCUIT COURT OF CAMPBELL COUNTY
                 J. Samuel Johnston, Jr., Judge

          Khalil A. Latif for appellant.

          Robert H. Anderson, III, Senior Assistant
          Attorney General (Jerry W. Kilgore, Attorney
          General, on brief), for appellee.


     During a jury trial, the trial court dismissed nine counts

of distribution of cocaine after which Zachary Barth Hamlett

pled guilty to two counts of distribution of cocaine.    The trial

proceeded on the two remaining counts of possession of a firearm

while in possession of cocaine, Code § 18.2-308.4.     The jury

convicted defendant of both counts.    The defendant maintains the

evidence was insufficient to prove he possessed the firearms




     ∗
       Retired Judge Charles H. Smith, Jr., took part in the
consideration of this case by designation pursuant to Code
§ 17.1-400.
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
when he possessed the cocaine and the court erred in finding him

guilty of two counts. 1    Finding no error, we affirm.

     On appeal, we view the evidence and the reasonable

inferences therefrom in the light most favorable to the

Commonwealth.   Commonwealth v. Taylor, 256 Va. 514, 516, 506

S.E.2d 312, 313 (1998).     Around noon on June 7, 2001, Cynthia

Scott made a controlled buy of crack cocaine from the defendant

at his residence.   She met the defendant in his living room.

After she asked to buy cocaine, the defendant "went down the

hallway" and returned a few minutes later with the drugs.      The

same day, Barbara Jones purchased rock cocaine from the

defendant in the living room of his residence.

     The police executed a search warrant for the defendant's

residence at 3:00 p.m. that day.     In the defendant's bedroom at

the end of the hall, they found a loaded Intertech 9 mm gun near

the head of the bed.      An open gun safe contained several

shotguns and rifles.      In that room they also found crack

cocaine, marijuana, cell phones, and approximately $3,000 cash.

They recovered a gun from the defendant's shed and another one




     1
       Before trial, the defendant had pled guilty to drug
charges including possession of a firearm while in possession of
cocaine. He maintains that conviction bars his later trial for
either of these charges. The record contains nothing from the
earlier proceeding. With no record of the indictment, the
evidence, or the final order, we do not address the argument.


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from his car.    The defendant asked "if he would get his guns

back."

        Beginning in 1999, Scott bought drugs from the defendant at

his residence.    The defendant had displayed a handgun during

some of those drug purchases.    He told her he carried a firearm

"for protection or [in case] somebody tried to stiff him."

        The defendant maintains Cynthia Scott and Barbara Jones

were not credible witnesses and no direct evidence showed that

he possessed a firearm in his residence when he sold cocaine to

them.    The evaluation of the credibility of any witness is a

function of the fact finder.    "The fact finder, who has the

opportunity to see and hear the witnesses, has the sole

responsibility to determine their credibility, the weight to be

given their testimony, and the inferences to be drawn from

proven facts."     Taylor, 256 Va. at 518, 506 S.E.2d at 314; Inge

v. Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567-68

(1976).    Interestingly, the defendant conceded their credibility

at trial when, after they testified, he changed his plea to

guilty of distributing cocaine.

        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."     Powers v.

Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).
                              - 3 -
Scott and Jones both testified they purchased drugs from the

defendant in his living room.   When Scott asked for the cocaine,

the defendant went down the hallway, and returned with the

cocaine.   Within three hours, police recovered firearms,

cocaine, marijuana, and a large amount of cash from his bedroom.

Scott had previously seen the defendant with a gun while selling

her drugs, and he had told her he carried a gun for protection

when trafficking in drugs.   The jury was entitled to determine

if the witnesses were credible, and then it could reasonably

infer the defendant knowingly possessed the firearms at the same

time that he possessed and sold the cocaine.   The jury could

reject the defendant's argument that the firearms recovered

during the search were not present during the earlier drug

transactions.

     The defendant maintains he unlawfully received multiple

punishments because he possessed the same firearms and the same

drugs on the same day without any distinguishing incident.    He

argues his firearm convictions arose out of "a single offense, a

'long transaction of illegal possession.'"   If the defendant's

conduct constituted separate violations of the same offense,

then the trial court did not exceed its authority in imposing

multiple punishments.   Jordan v. Commonwealth, 2 Va. App. 590,

594, 347 S.E.2d 152, 154 (1986); Stephens v. Commonwealth, 263

Va. 58, 61-63, 557 S.E.2d 227, 229-30 (2002) (affirming multiple

convictions of shooting because "separate, identifiable acts.")
                              - 4 -
     In Kelsoe v. Commonwealth, 226 Va. 197, 308 S.E.2d 104

(1983), the defendant brandished the same firearm at three

people.    The trial court convicted him of three violations of

Code § 18.2-282.   The gravamen of the offense was the inducement

of fear in others.    Id. at 199, 308 S.E.2d at 104.    Therefore,

the legislature authorized multiple punishments for separate

violations, and the trial court did not err in imposing multiple

punishments.

     In Jordan, 2 Va. App. at 596, 347 S.E.2d at 156, the

defendant argued that his two convictions for robbing two

individuals at the same time constituted a single robbery.      This

Court held the number of people from whom property was taken

determined the "unit of prosecution" because robbery was the use

of violence against a person.    Id.    The legislature determined

the "unit of prosecution" and "set the penalty for separate

violations" of the same offense.       Id. at 594, 347 S.E.2d at 154.

     In Shears v. Commonwealth, 23 Va. App. 394, 477 S.E.2d 309

(1996), police found drugs on the defendant at a trailer and

stored in his residence.   The defendant was convicted of two

counts of possession of cocaine with intent to distribute.      This

Court rejected his argument that the two convictions arose from

a single criminal enterprise.   "The gravamen of the offense is

clearly possession of the specified drug with the requisite

intent."    Id. at 401, 477 S.E.2d at 312.    Each distinguishable


                                - 5 -
possession "constitutes a 'unit of prosecution' for violation of

the statute."    Id.

     Code § 18.2-308.4 punishes possessing a firearm while

possessing cocaine.    It states: "Violation of this section shall

constitute a separate and distinct felony;" punished separately

from "any punishment received for the commission of the primary

felony."   Under the facts of this case, the gravamen of the

offense was possessing a firearm while selling cocaine.    Each

separate, identifiable sale was a unit of prosecution.

     The defendant sold drugs to Scott and Jones.    During each

transaction, he took the order in his living room, then moved to

his bedroom where he stored the drugs and kept his guns.    The

defendant obtained the quantity of cocaine ordered and returned

to the living room to complete the transfer.   Each sale was a

separate and distinct event.   During each sale, he had ready

access to the firearms while he retrieved the drugs he was

selling.   The defendant's conduct did not constitute a single

transaction.    The two sales were separate and distinguished;

they were multiple violations of the same offense and warranted

separate punishments.   Accordingly, we affirm both convictions.

                                                          Affirmed.




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