                  COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia


LUTHER EARL BRACEY,
 s/k/a LUTHER BRACY
                                           MEMORANDUM OPINION * BY
v.   Record No. 3214-96-1                  JUDGE WILLIAM H. HODGES
                                              OCTOBER 28, 1997
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
                    E. Everett Bagnell, Judge
          Michael D. Eberhardt for appellant.

          Robert H. Anderson, III, Assistant Attorney
          General (Richard Cullen, Attorney General;
          Margaret Ann B. Walker, Assistant Attorney
          General, on brief), for appellee.



     Luther Earl Bracey appeals from a jury verdict convicting

him of possessing a sawed-off shotgun and possessing a firearm

after having been convicted of a felony.    He asserts that the

evidence was insufficient to prove beyond a reasonable doubt that

he possessed the shotgun.

     "On appeal, we review the evidence 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 S.E.2d 415, 418 (1987).

     So viewed, the evidence proved that on September 25, 1993,

at approximately 4:30 a.m., Officer Harris initiated a traffic

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
stop of an automobile driven by and registered to Linwood Barns.

At the time of the stop, Bracey was riding on the passenger side

of the front seat, and Harris observed no suspicious movement in

the vehicle by either Barns or Bracey.    Harris testified that, as

soon as the car stopped, the front passenger door "flew open,"

and Bracey "jumped out of the passenger side and stepped up on

the curb real quick."    Bracey walked toward Harris, ignoring

Harris' repeated orders to return to the car, conduct which

Harris regarded as very unusual for a passenger during a traffic

stop.       Officer Davis arrived at the scene moments after the

stop.    While Harris spoke with Barns, Davis approached the

passenger side of the car, where Bracey was standing.    Shining

his flashlight inside, Davis noticed the fourteen-inch barrel of

a sawed-off shotgun extending from beneath the passenger side of

the front seat.    Davis testified that, although he could not see

the stock or butt of the weapon, the barrel was clearly visible.

The car had a bench seat and the floor on the passenger side was

separated from the driver's side by the transmission "hump."
        "[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) (citation omitted).

        "Possession [of contraband] may be actual or constructive."

 Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368




                                   2
(1994) (en banc).
          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
          [accused] was aware of both the presence and
          character of the [item] and that it was
          subject to his dominion and control."


Hancock v. Commonwealth, 21 Va. App. 466, 469, 465 S.E.2d 138,

140 (1995) (citation omitted).   "In determining whether a

defendant constructively possessed a firearm, the defendant's

proximity to the firearm and his occupancy and ownership of the

vehicle must also be considered."     Logan, 19 Va. App. at 444, 452

S.E.2d at 369.   Possession need not be exclusive--a defendant may

share possession of a weapon with another.     See Blake v.

Commonwealth, 15 Va. App. 706, 708, 427 S.E.2d 219, 220 (1993).

      Bracey argues that Hancock supports his contention that he

did not possess the shotgun.   In Hancock, the defendant was one

of five occupants of the vehicle in which a firearm was

recovered.    See Hancock, 21 Va. App. at 468, 465 S.E.2d at 139.

The defendant was sitting in the back seat of the car, behind the

driver, and the firearm was found under the driver's seat.     See

id.   The police officer who found the gun testified that he could

not see the weapon until after the defendant exited the car and

that a person would not see the gun unless he looked at the

floorboard.    See id. at 470, 465 S.E.2d at 140.

      Here, however, Davis found the firearm only partially hidden

beneath the seat where Bracey had been sitting.     The presence of


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the transmission hump prevented the shotgun from sliding to

Bracey's side of the car.   Only Barns and Bracey occupied the

vehicle, and no evidence supports the hypothesis that Barns

placed the shotgun under Bracey's seat after the stop.   The

fourteen-inch barrel of the gun was "sticking out" from under the

seat and could be seen clearly.   Harris testified that Bracey

acted suspiciously in exiting the car, approaching the officer

and ignoring repeated instructions to return to the vehicle.

From such conduct, the trial court could reasonably infer that

Bracey was aware of the shotgun, which was subject to his

dominion and control, and was attempting to distance himself from

it before discovery by police.
     Accordingly, the evidence was sufficient to prove beyond a

reasonable doubt that Bracey knowingly, constructively possessed

the sawed-off shotgun, and we affirm the convictions.

                                                   Affirmed.




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Benton, J., dissenting.

     "We can affirm this [conviction] only if the Commonwealth

proved beyond a reasonable doubt that [Luther Bracey] had actual

knowledge of the presence of the firearm, i.e. 'knowingly and

intentionally possess[ed]' the firearm."    Hancock v.

Commonwealth, 21 Va. App. 466, 469, 465 S.E.2d 138, 140 (1995)

(citations omitted).   Indeed, in Hancock, a case with facts

remarkably similar to this appeal, we stated the following well

established principles:
             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
          [accused] was aware of both the presence and
          character of the [item] and that it was
          subject to his dominion and control." Proof
          that the firearm "was found in . . . a
          vehicle . . . occupied by the [accused] is
          insufficient, standing alone, to prove
          constructive possession."


Id. (citations omitted).

     The evidence proved that Bracey had been a passenger in the

vehicle that the police officer stopped late at night.   When the

officer approached the vehicle to look inside, he "shined [a]

light into the floorboard which is underneath the seat [and]

. . . observed what appeared to be the barrel of a shotgun."    The

officer testified that the barrel of the shotgun had been

"sawed-off" and that the shotgun was lying at an angle under the

passenger side of the front seat.    Although the officer testified

that "the only thing that was sticking out was the barrel," he


                                 5
did not describe how much of the barrel was protruding.   The

officer also testified that the interior of the vehicle, a

"seventies model . . . Buick," was strewn with "items in the back

seat, in the front seat, . . . and was right dirty."

     The evidence proved that the driver owned the vehicle.     No

evidence tended to prove that the firearm was not owned by the

driver or that the firearm was put under the seat after Bracey

entered the vehicle.   No evidence proved how long Bracey had been

in the vehicle.   Furthermore, no evidence proved that Bracey's

fingerprints were on the firearm, that Bracey had possessed the

firearm, or that Bracey had ever seen the firearm.
     Because the evidence proved that the police stopped the

vehicle at night and discovered the firearm by shining a light in

the vehicle, the evidence failed to prove or even permit a

reasonable inference that Bracey could have seen the firearm.     No

testimony proved how much of the barrel was protruding beyond the

seat or proved that the protruding portion, if any, could have

been seen without the aid of a light.   Indeed, the combination of

the darkness and the rubble in the vehicle only allow conjecture

whether any protruding object would have been noticed by a

passenger.

     As in Hancock, proof that Bracey was a passenger in the

vehicle and, therefore, was in proximity to the firearm is not a

sufficient basis to prove beyond a reasonable doubt that Bracey

constructively possessed the firearm that was under the seat.
             No evidence established that [Bracey]



                                 6
          ever held the firearm, saw it, knew it was
          present, or exercised any dominion and
          control over it. The facts established no
          more than a mere suspicion that the firearm
          was possessed by [Bracey] or that he knew the
          firearm was under the . . . 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
          [Bracey] was not sufficient to prove the
          elements of the offense beyond a reasonable
          doubt.

21 Va. App. at 472, 465 S.E.2d at 141-42 (citations omitted).

     Because the evidence is not "wholly consistent with guilt

and wholly inconsistent with innocence," Scruggs v. Commonwealth,

19 Va. App. 58, 61, 448 S.E.2d 663, 664 (1994), I dissent.   I

would reverse the convictions.




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