                     COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Felton and Kelsey
Argued at Richmond, Virginia


DANYELL JAMONT GREENE, S/K/A
 DANYELL J. GREEN
                                             MEMORANDUM OPINION * BY
v.   Record No. 3343-01-2                     JUDGE ROBERT P. FRANK
                                                DECEMBER 3, 2002
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF HENRICO COUNTY
                      George F. Tidey, Judge

          Harrison Hubard, Jr. (Hubard, Samuels &
          Lewane, on brief), for appellant.

          Eugene Murphy, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     Danyell J. Greene (appellant) was convicted of possession of

a firearm by a convicted felon, in violation of Code § 18.2-308.2.

On appeal, he contends the trial court erred in admitting his

statements to the police and erred in finding the evidence was

sufficient to convict.   For the reasons stated, we affirm the

judgment of the trial court.

                           A.   The Statements

     Appellant argues the trial court should have excluded his

statements, as he did not receive any Miranda warnings prior to

talking to the police.   The Commonwealth argues he did not file a


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
motion to suppress as required by Code § 19.2-266.2 and did not

otherwise preserve the issue.    We agree.

     Code § 19.2-266.2 states, in part:

          Defense motions or objections seeking (i)
          suppression of evidence on the grounds such
          evidence was obtained in violation of the
          provisions of the Fourth, Fifth or Sixth
          Amendments to the Constitution of the United
          States or Article I, Section 8, 10 or 11 of
          the Constitution of Virginia proscribing
          illegal searches and seizures and protecting
          rights against self-incrimination . . .
          shall be raised by motion or objection, in
          writing, before trial. The motions or
          objections shall be filed and notice given
          to opposing counsel not later than seven
          days before trial. . . . The court may,
          however, for good cause shown and in the
          interest of justice, permit the motions or
          objections to be raised at a later time.

     Appellant did not file a pretrial motion to suppress his

statements to the police.   Instead, during the presentation of

the Commonwealth's case, the following exchange took place:

          [OFFICER NELSON]: We traced our steps
          approximately where he first started
          running. I would say approximately thirty
          to forty yards from the point where
          [appellant] started running, there was a
          pager and a revolver laying on the gravel
          road there, the gravel alley way.

          [PROSECUTOR]: This pager and this revolver,
          how far apart were these two items?

          [OFFICER NELSON]:     Approximately a foot and
          a half.

          [PROSECUTOR]: And did you ask the defendant
          about any of the items?

          [OFFICER NELSON]:     Yes, we did.



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               [PROSECUTOR]: Okay. And what was his
               response to you about those items?

               [OFFICER NELSON]:   After being –

               DEFENSE COUNSEL: Judge, I'd impose an
               objection on the basis of Miranda at this
               point please, Judge.

               THE COURT: I don't think Miranda has kicked
               in yet. I overrule the objection. 1

       Officer Nelson testified appellant admitted the pager was

his.       The officer then advised appellant of his Miranda rights.

Thereafter, appellant admitted he handled and picked up the

firearm.

       Appellant offered no "good cause" and did not show that

"the interest of justice" required consideration of his

objection.      Since appellant failed to meet the notice

requirements of Code § 19.2-266.2, he waived any argument on

appeal regarding the admissibility of his statements concerning

the pager and firearm.       See Schmitt v. Commonwealth, 262 Va.

127, 145-46, 547 S.E.2d 186, 199 (2001), cert. denied, 534 U.S.

1094 (2002).




       1
       The prosecutor did not raise the fact that appellant
violated Code § 19.2-266.2 in response to the trial court's
consideration of appellant's Fifth Amendment objection. The
record clearly indicates the prosecutor had no opportunity to
raise the notice issue prior to or after appellant's Miranda
objection. Once the trial court ruled in the Commonwealth's
favor, such notice became moot. We, therefore, do not consider
whether the Commonwealth waived any violation of Code
§ 19.2-266.2.


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                          B.    Sufficiency

           In reviewing the sufficiency of the
           evidence, we examine the record in the light
           most favorable to the Commonwealth, granting
           to it all reasonable inferences fairly
           deducible therefrom. The judgment of a
           trial court will be disturbed only if
           plainly wrong or without evidence to support
           it. The credibility of a witness, the
           weight accorded the testimony, and the
           inferences to be drawn from proved facts are
           matters to be determined by the fact finder.

Glasco v. Commonwealth, 26 Va. App. 763, 773, 497 S.E.2d 150,

155 (1998) (citations omitted), aff'd on alt. grounds, 257 Va.

433, 513 S.E.2d 137 (1999).

     So viewed, the evidence at trial proved the officers first

observed appellant "stumbling" behind a grocery store at

approximately 2:17 a.m.   The officers stopped their car, got

out, approached appellant, and requested to speak with him.

Appellant "took off running."    The officers chased him for five

blocks.   After his capture, appellant told the officers that he

found the firearm they recovered in the alley.   Appellant

admitted he touched and picked up the firearm.

     To prove possession, the evidence must support a finding

that appellant either actually or constructively possessed the

item and that appellant "'intentionally and consciously

possessed it with knowledge of its nature and character.'"

Buono v. Commonwealth, 213 Va. 475, 476, 193 S.E.2d 798, 799

(1973) (per curiam) (quoting Ritter v. Commonwealth, 210 Va.

732, 741, 173 S.E.2d 799, 805 (1970)) (discussing possession of

                                 - 4 -
illegal drugs).   While appellant did not claim ownership of the

firearm, he conceded he was in possession of the firearm.     He

exerted dominion and control over the firearm by picking it up.

Further, the trial court was entitled to disbelieve appellant's

assertion that he merely examined the firearm, but did not

intend to possess it.   By observing the firearm prior to

touching it, appellant was aware of its nature and character.

Therefore, the trial court could conclude that appellant

illegally possessed the firearm.

     "The duration of the possession is immaterial . . . ."

Gillis v. Commonwealth, 215 Va. 298, 302, 208 S.E.2d 768, 771

(1974) (discussing possession of a controlled substance).     Here,

the duration of possession, according to appellant's confession,

was short.   Nevertheless, appellant admitted picking up the

firearm, thus exercising dominion and control over the firearm.

The amount of time he held the firearm is immaterial.

Additionally, appellant's flight from the officers allowed the

trial court to infer that appellant knew he illegally possessed

the firearm.   See Langhorne v. Commonwealth, 13 Va. App. 97,

103, 409 S.E.2d 476, 480 (1991).

     Accordingly, the evidence was sufficient to support the

conviction for possession of a firearm by a convicted felon.       We

affirm the judgment of the trial court.

                                                            Affirmed.



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