                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges O’Brien, Russell and Senior Judge Clements
              Argued at Richmond, Virginia
UNPUBLISHED




              TIMOTHY LAMONT BOOTH, JR.
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 0532-19-2                                    JUDGE MARY GRACE O’BRIEN
                                                                                   FEBRUARY 4, 2020
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                                                Lynn S. Brice, Judge

                               C. David Sands, III (Winslow & McCurry, PLLC, on briefs),
                               for appellant.

                               Timothy J. Huffstutter, Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Following a bench trial, the court convicted Timothy Lamont Booth, Jr. (“appellant”) of

              possessing ammunition as a convicted felon, in violation of Code § 18.2-308.2. Appellant contends

              the evidence was insufficient to prove that he constructively possessed the ammunition. We agree

              and reverse appellant’s conviction.

                                                         BACKGROUND

                     On April 3, 2018, Chesterfield County police officers executed a search warrant on the

              residence of Tekeiron Booth (“Tekeiron”). Three people were present: Tekeiron, who was on the

              lease and is not related to appellant, appellant’s mother, and his brother. Appellant was not present

              at the residence when police executed the warrant.

                     Officer Christopher D. Murphy found two plastic grocery bags on the floor of a bedroom

              furnished with two beds, a nightstand, and a dresser. The bags, partially concealed under one of the


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
beds, contained .380 and .40 caliber bullets. The officer also located two boxes of .22 caliber long

rifle ammunition in the same area of the bedroom.

        In addition, Officer Murphy found an empty gun holster in the nightstand, as well as a wallet

containing appellant’s 2012-13 school photo identification card and a debit card expiring in March

2019. The Commonwealth presented testimony that officers observed a bill in the bedroom with

appellant’s name on it; however, the Commonwealth did not introduce the bill itself into evidence

or any information concerning its date or address. An officer also testified about finding a paper

bag containing prescription medication bearing appellant’s name on top of the dresser. The officer

could not recall the date of the medication, which was not admitted into evidence, but testified that

“[i]t was a lot more recent than the [date] of the photo ID.”

        Tekeiron told the officers that he resided in the bedroom where they found the ammunition.

He also inquired about an Xbox and a Game Station that the officers seized from the bedroom.

Appellant did not testify at trial but presented evidence from his ex-girlfriend who stated that she

and appellant “sometimes” lived together. Appellant’s girlfriend did not live at Tekeiron’s

residence. The parties stipulated that appellant was a convicted felon.

        The court found it significant that appellant’s expired school identification card and valid

debit card were near the ammunition, as well as the fact that appellant’s “more recent” medication

was on top of the dresser. The court convicted appellant, and this appeal followed.

                                             ANALYSIS

        In reviewing a challenge to the sufficiency of the evidence, we afford the “highest degree of

appellate deference” to the court’s factual findings. Bowman v. Commonwealth, 290 Va. 492, 496

(2015). In accordance with this deference, we presume the court’s findings were correct, and we

will not disturb the judgment unless it was “plainly wrong or without evidence to support it.” Code

§ 8.01-680. “An appellate court does not ‘ask itself whether it believes that the evidence at the trial

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established guilt beyond a reasonable doubt.’” Williams v. Commonwealth, 278 Va. 190, 193

(2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). “‘Rather, the relevant question

is,’ upon review of the evidence in the light most favorable to the prosecution, ‘whether any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Pijor

v. Commonwealth, 294 Va. 502, 512 (2017) (quoting Dietz v. Commonwealth, 294 Va. 123, 132

(2017)).

       Code § 18.2-308.2 prohibits a convicted felon from “knowingly and intentionally

possess[ing] . . . any . . . ammunition for a firearm.” Code § 18.2-308.2(A). The Commonwealth is

not required to prove that a defendant physically possessed the ammunition; possession may be

actual or constructive. See Bolden v. Commonwealth, 275 Va. 144, 148 (2008). Constructive

possession requires “facts and circumstances proving that the defendant was aware of the presence

and character of the [contraband] and that [it] was subject to his dominion and control.” Rawls v.

Commonwealth, 272 Va. 334, 349 (2006). A court may consider “ownership or occupancy of the

premises where the [contraband] is found” as factors probative of constructive possession. Id. at

350.

       This case is controlled by Cordon v. Commonwealth, 280 Va. 691 (2010). In Cordon, the

Supreme Court reversed a defendant’s conviction for constructive possession of cocaine found in a

cooler located in a bedroom. Id. at 693. The bedroom also contained checks and documents with

the defendant’s name and a business card that a police officer had given the defendant two days

earlier, when the officer was investigating a burglary at the house. Id. At that time, the defendant

advised the officer that the house belonged to his uncle, but the bedroom was his. Id. Later, when

police told him that drugs were seized from the bedroom, the defendant denied living at the house.

Id. at 694. In finding the evidence insufficient to prove the defendant exercised dominion and

control over the drugs found in the cooler, the Supreme Court noted that the cooler was “a very

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portable item.” Id. at 696. Further, the Supreme Court found it significant that the defendant was

not present when the drugs were seized and “no evidence placed [the defendant] at the house at any

time between the day [he identified the room as his] and the day the search warrant was executed.”

Id.

        Similarly, here, appellant was not present when the search warrant was executed at

Tekeiron’s residence. Despite officers finding prescription medication, a valid debit card, and an

expired school identification card – each item bearing appellant’s name – in the bedroom, nothing

established that appellant was ever present in the bedroom simultaneously with the seized

contraband. See id.

        Other cases also indicate that a constructive possession conviction requires sufficient

evidence of simultaneity between a defendant’s presence in the searched premises and the seized

contraband. See, e.g., Hall v. Commonwealth, 69 Va. App. 437, 448-50 (2018); Shurbaji v.

Commonwealth, 18 Va. App. 415, 424 (1994). In Hall, we found the evidence sufficient where

officers located numerous items that connected the defendant to a bedroom containing contraband,

including several pieces of mail, bills listing the address of the searched residence, titles to vehicles

naming the defendant as the owner, and medication for the defendant and her child. 69 Va. App. at

448-49. Additionally, officers saw the defendant leaving the residence on the morning the search

was executed. Id. at 448. In Shurbaji, we affirmed a conviction for constructive possession based

on evidence that the defendant paid the mortgage of the home where the contraband was found. 18

Va. App. at 424. The defendant arrived during execution of the search warrant but “turned around

and drove hurriedly away” when he noticed the police. Id. Additionally, the officers observed,

“[i]nterspersed among the cocaine and paraphernalia,” the defendant’s United States and Syrian

passports, his wallet containing credit and bank cards, personal checks signed by the defendant, and

“current personal papers and envelopes addressed to him at the searched residence.” Id.

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       In this case, however, appellant was never seen at the residence, and no testimony or

documentary evidence was introduced establishing that he was ever present in the bedroom when

the ammunition was there. Further, in Cordon, the defendant’s admission and subsequent denial

concerning ownership of the bedroom gave rise to an inference that he was lying to conceal guilt.

280 Va. at 696. Nevertheless, this inference along with the remaining evidence still failed to

establish constructive possession of contraband found in the bedroom. Id. Here, appellant did not

give conflicting statements, nor any statements at all, regarding any ownership interest in the

bedroom or that he was aware of the ammunition. The ammunition was discovered in two plastic

grocery bags and two boxes which, like the cooler in Cordon, were easily portable. See id.

       Although the circumstantial evidence in this case may appear suspicious, to establish

constructive possession, “[t]he evidence must rise beyond ‘the realm of probability and

supposition’” that appellant exercised dominion and control over the contraband. Hancock v.

Commonwealth, 21 Va. App. 466, 472 (1995) (quoting Hall v. Commonwealth, 225 Va. 533, 537

(1983)). Because the evidence failed to establish beyond a reasonable doubt that appellant actually

or constructively possessed the ammunition, we reverse his conviction.

                                                                             Reversed and dismissed.




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