                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Decker, Malveaux and Senior Judge Clements
UNPUBLISHED


              Argued at Richmond, Virginia


              MARTONIO LEON COLEMAN
                                                                          MEMORANDUM OPINION* BY
              v.     Record No. 1712-16-2                              JUDGE MARY BENNETT MALVEAUX
                                                                              NOVEMBER 28, 2017
              COMMONWEALTH OF VIRGINIA


                                FROM THE CIRCUIT COURT OF THE CITY OF HOPEWELL
                                           Daniel T. Balfour, Judge Designate

                               Joseph Ryland Winston (Law Offices of Joseph Ryland Winston, on
                               briefs), for appellant.

                               Brittany A. Dunn-Pirio, Assistant Attorney General (Mark R.
                               Herring, Attorney General; Craig W. Stallard, Assistant Attorney
                               General, on brief), for appellee.


                     Martonio Leon Coleman (“appellant”) appeals his convictions for possession of a firearm

              by a felon, in violation of Code § 18.2-308.2, and possession of a firearm while in possession of

              a controlled substance, in violation of Code § 18.2-308.4.1 On appeal, he argues the evidence

              was insufficient to prove that he constructively possessed a gun.2 For the reasons that follow, we

              disagree and affirm the judgment of the trial court.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Appellant was also convicted of possession of cocaine with intent to distribute, in
              violation of Code § 18.2-248. Further, he pled guilty to driving while his license was suspended
              or revoked, in violation of Code § 46.2-301, and four counts of failure to appear, in violation of
              Code § 19.2-128. Appellant does not challenge these convictions on appeal.
                     2
                      Appellant raised two additional assignments of error with respect to his convictions.
              This Court denied his petition for appeal on those assignments of error.
                                        I. BACKGROUND

       “In accordance with familiar principles of appellate review, the facts [are] stated in the

light most favorable to the Commonwealth, the prevailing party at trial.” Scott v.

Commonwealth, 292 Va. 380, 381, 789 S.E.2d 608, 608 (2016).

       On October 13, 2014, Officer Sean Spencer of the Hopewell Police Department drove to

the scene of a reported fight. As he arrived, a man walked past Spencer’s car. Another officer

informed Spencer that the man, later identified as Tre’Andre Paige, might have been involved in

the fight. Spencer turned around and drove up the street in search of Paige.

       As he turned a corner, Spencer saw a blue, two-door vehicle stopped in the middle of the

street. Someone climbed into the passenger side of the vehicle, and the vehicle began driving

away. Suspecting that Paige was the person he had just seen enter the vehicle, Spencer prepared

to initiate a traffic stop. Before he could do so, however, the vehicle pulled over and parked.

       Spencer stopped in the middle of the street and saw the vehicle’s doors “pop[] open.”

Expecting the occupants to flee, Spencer stepped out of his car. He saw appellant get out of the

driver’s seat and Paige get out of the vehicle on the passenger’s side. The two men began

circling behind Spencer, with appellant moving to his left and Paige moving to his right.

Spencer told them to get back into their vehicle, and when they ignored him, he brought his

police dog out of his car. When he again instructed them to return to their vehicle, the men

complied. Spencer noted that when Paige got back into the vehicle, he sat in the right rear

passenger’s seat. A third passenger, later identified as Joseph Jones, never left the front

passenger’s seat.

       Just before appellant got back into the vehicle, Spencer observed him reaching for the

driver’s door and “mak[ing] a kicking motion.” Although Spencer could see that appellant was

kicking some sort of object, he could not see what that object was. After the men were back in

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the vehicle with their doors closed, Spencer waited for additional officers to arrive. While

waiting, he saw appellant talking on a white cell phone. Spencer told appellant to get off the

phone, and appellant complied.

         After additional officers arrived, Spencer examined the area where appellant made his

kicking motion. On the street beneath the driver’s side of the vehicle, Spencer found a baggie

containing “off-white rock-like substances.” The Virginia Department of Forensic Science later

tested the baggie’s contents and determined they comprised approximately 0.72 gram of cocaine.

Inside the vehicle, a digital scale was in plain view on the console between the front seats. A

box of sandwich bags was in plain view between the driver’s seat and the console.

         Police arrested appellant after determining that he was wanted on an outstanding warrant.

In a search incident to that arrest, they recovered $483 from appellant’s pocket, most of which

was in the form of ten- and twenty-dollar bills. Police also recovered a white Apple iPhone from

appellant.

         While searching the vehicle, police found a Samsung phone and a loaded .40 caliber

semiautomatic pistol. Spencer testified that the pistol was “sort of upright[,] [s]ort of standing

up” between the side of the back seat where Paige had been sitting and the passenger side of the

vehicle. A round was chambered inside the weapon. No usable fingerprints were recovered

from the gun. A photograph of the weapon as found in the vehicle was entered into evidence at

trial.

         Police obtained warrants to search the two phones. Robert Brown of the Virginia State

Police testified at trial that he conducted a forensic examination of the iPhone and discovered it

was locked with a pass code. Brown used a forensic tool to access its contents and found a

photograph depicting a semiautomatic weapon with a magazine lying next to it. In the

photograph, a scratch or other mark is visible near the base of the gun’s grip. The photograph

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was entered into evidence at trial. Later, when moving the gun into evidence, the

Commonwealth pointed out a “marking . . . [o]n the handle” that was “distinct.” In comparing

the firearm recovered from the vehicle with the firearm portrayed in the photograph found on the

iPhone, the trial court noted that it “has the same markings on it, it’s all the same.”

        Detective Matthew Bynum, a narcotics investigator with the Hopewell Police

Department, testified at trial. He stated that, based on his training, experience, and familiarity

with the Hopewell drug trade, the drugs and drug paraphernalia recovered in and around the

vehicle were inconsistent with personal use. He also testified that “[n]ot all [drug] dealers will

carry firearms. A lot of them do, but not all of them do.”

        Officer Spencer testified at trial that he checked the vehicle’s registration and determined

that appellant was not the vehicle’s owner. He stated he had “no clue” how long appellant was

in the vehicle before he interacted with its occupants.

        Appellant moved to strike the evidence concerning the firearm charges. He argued that

the evidence was insufficient to prove he possessed the gun, because he did not own the vehicle

and also because the gun was found between the rear seat and the side of the vehicle, where a

passenger had been sitting. Further, appellant argued that with respect to the photograph of the

gun found on the iPhone, the owner of the phone remained unknown and there was no evidence

regarding who took the photograph or when it was taken. Defense counsel argued that mere use

of a cell phone “doesn’t mean it’s [appellant’s]. It doesn’t mean that any pictures or text

messages or anything on that phone are attributable to [him].” The trial court denied the motion

to strike.

        Ruling from the bench, the trial court found appellant guilty of possession of cocaine

with intent to distribute, in violation of Code § 18.2-248. With respect to the firearm possession

charges, the court concluded that appellant was in constructive possession of the pistol. The

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court specifically noted that “the issue here is proximity, but it was a two-door car and I think . . .

that [appellant] was close enough [to the gun]. He could have got to it, had he had to.” The

court convicted appellant of possession of a firearm by a felon, in violation of Code

§ 18.2-308.2, and possession of a firearm while in possession of a controlled substance, in

violation of Code § 18.2-308.4. This appeal followed.

                                           II. ANALYSIS

        “When considering a challenge to the sufficiency of evidence on appeal, we review the

evidence in the light most favorable to the prevailing party at trial and consider all inferences

fairly deducible from that evidence.” Dunne v. Commonwealth, 66 Va. App. 24, 26, 782 S.E.2d

170, 171 (2016) (quoting Jones v. Commonwealth, 276 Va. 121, 124, 661 S.E.2d 412, 414

(2008)). In conducting our inquiry, “the relevant question is, after reviewing the evidence in the

light most favorable to the [Commonwealth], whether any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” Sullivan v. Commonwealth, 280

Va. 672, 676, 701 S.E.2d 61, 63 (2010). We “defer to the findings of fact made by . . . a trial

judge at a bench trial if there is evidence to support them and will not set a judgment aside unless

it appears from the evidence that the judgment is plainly wrong.” Id. See also Code § 8.01-680.

Our deference “applies not only to findings of fact, but also to any reasonable and justified

inferences the fact-finder may have drawn from the facts proved.” Id. at 676, 701 S.E.2d at

63-64. Further, “circumstantial evidence may be more compelling and persuasive than direct

evidence, and when convincing, it is entitled to as much weight as direct evidence.” Booker v.

Commonwealth, 61 Va. App. 323, 335-36, 734 S.E.2d 729, 735 (2012) (quoting Bridgeman v.

Commonwealth, 3 Va. App. 523, 526, 351 S.E.2d 598, 600 (1986)).

       Code § 18.2-308.2(A) prohibits convicted felons from “knowingly and intentionally

possessing . . . any firearm.” Code § 18.2-308.4(A) prohibits “any person[s] unlawfully in

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possession of a controlled substance . . . [from] simultaneously with knowledge and intent

“possess[ing] any firearm.” “Where the General Assembly uses the word ‘possess,’ Virginia

courts have typically held that proof of actual or constructive possession are both permissible.”

Hunter v. Commonwealth, 56 Va. App. 50, 58, 690 S.E.2d 792, 795 (2010). “Indeed[,] our

Supreme Court has stated that ‘[a] well-settled principle of our jurisprudence is that a conviction

for unlawful possession of a firearm . . . may be based solely on evidence of constructive

possession.’” Id. at 58, 690 S.E.2d at 795-96 (alteration in original) (quoting Wright v.

Commonwealth, 278 Va. 754, 759, 685 S.E.2d 655, 657 (2009)).

       “[T]he issue [of what constitutes constructive possession] is largely a factual one.”

Smallwood v. Commonwealth, 278 Va. 625, 630, 688 S.E.2d 154, 156 (2009) (alteration in

original) (quoting Ritter v. Commonwealth, 210 Va. 732, 743, 173 S.E.2d 799, 807 (1970)). “To

establish constructive possession . . . , ‘the Commonwealth must present evidence of acts,

statements, or conduct by the defendant or other facts and circumstances proving that the

defendant was aware of the presence and character of the firearm and that the firearm was

subject to his dominion and control.’” Bolden v. Commonwealth, 275 Va. 144, 148, 654 S.E.2d

584, 586 (2008) (quoting Rawls v. Commonwealth, 272 Va. 334, 349, 634 S.E.2d 697, 705

(2006)).

       “While the Commonwealth does not meet its burden of proof simply by showing the

defendant’s proximity to the firearm, it is a circumstance probative of possession and may be

considered as a factor in determining whether the defendant possessed the firearm.” Id.

Occupancy of a vehicle in which a firearm is found is a relevant factor for a trier of fact to

consider in determining guilt, as is visibility of that firearm within the vehicle. See Rawls, 272

Va. at 350, 634 S.E.2d at 705 (“[O]ccupancy of the [locus] where the firearm is found . . . [is a]

circumstance[] probative of possession.”); Smallwood, 278 Va. at 631, 688 S.E.2d at 157

                                                -6-
(finding “plain view” status of weapon probative of constructive possession). Further, to

establish constructive possession of a firearm, the Commonwealth is not required to prove

exclusive possession by the defendant, for “[p]ossession may be joint or several. Two or more

persons may be in possession where each has the power of control and intends to exercise control

jointly.” Hunter, 56 Va. App. at 60, 690 S.E.2d at 796 (quoting Smallwood, 278 Va. at 631, 688

S.E.2d at 157).

       Appellant first challenges his firearm convictions by arguing that the evidence was

insufficient to prove he was aware of the presence and character of the gun, because there was no

evidence it was ever openly and obviously in his presence. He notes that the gun was in the back

seat, between the seat and the side of the vehicle, and that a passenger occupied the space beside

the gun. Taken together with the fact that the evidence only proved appellant drove the vehicle

for a brief period, appellant contends it is not possible to reasonably infer that he ever had a

vantage point which would have allowed him to see the gun. However, even assuming,

arguendo, that this contention is true, it is not dispositive. Firearms that are not open and

obvious may still be subject to one’s knowledge and thus support a conviction for constructive

possession. See, e.g., Hunter, 56 Va. App. at 60-61, 690 S.E.2d at 797 (holding the evidence was

sufficient to support an inference of knowledge of a firearm found in a locked glove

compartment); Archer v. Commonwealth, 26 Va. App. 1, 13, 492 S.E.2d 826, 832 (1997)

(holding there was sufficient evidence of knowledge to support constructive possession where a

gun was hidden beneath a mattress).

       Appellant next argues that neither his involvement in the drug trade nor his attempt to

conceal his illegal activity supports an inference that he was aware of the presence and character

of the gun. With this argument, he seeks to distinguish his conduct and circumstances from

those of the defendant in Bolden. In Bolden, the defendant and another individual were sitting in

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a car improperly parked in a motel parking lot. Bolden, 275 Va. at 146, 654 S.E.2d at 585.

When an officer approached to investigate, both individuals got out of the car and the defendant

began to walk toward the officer. Id. The officer saw the defendant drop rolling paper and a

Ziploc bag which appeared to contain cocaine. Id. The officer placed the defendant in custody,

and, while searching the car, recovered a handgun from a plastic grocery bag which was on the

driver’s seat against the armrest. Id. at 146-47, 654 S.E.2d at 585. Our Supreme Court

concluded that among the evidence supporting constructive possession was the fact that the

defendant possessed drugs with the intent to distribute them, and an expert testified to the link

between drug distribution and possession of a firearm. Id. at 149, 654 S.E.2d at 586. Also

supporting constructive possession was the fact that the defendant exited the car and approached

the officer before the officer could approach the car where the gun was located. Id. at 148-49,

654 S.E.2d at 586.

       Appellant argues that Bolden is distinguishable because an expert witness in that case

testified that “a drug dealer would carry a firearm ‘so he can protect his interests,’” Bolden, 275

Va. at 147, 654 S.E.2d at 585, while the detective in the instant case testified only that “‘not all’

drug dealers carry firearms, but ‘a lot’ do.” The nexus between illegal drug distribution and

firearms possession is well established in our case law. See, e.g., Bolden v. Commonwealth, 49

Va. App. 285, 293, 640 S.E.2d 526, 530 (2007) (noting that “[g]uns are the ‘tools of the trade’ in

the underground drug world’” (quoting Thomas v. Commonwealth, 44 Va. App. 741, 755, 607

S.E.2d 738, 744-45, adopted upon reh’g en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005)));

Thomas, 44 Va. App. at 755, 607 S.E.2d at 744 (acknowledging “the commonsense ‘relationship

between the distribution of controlled substances . . . and the possession and use of dangerous

weapons’” (quoting Logan v. Commonwealth, 19 Va. App. 437, 445, 452 S.E.2d 364, 369

(1994) (en banc))). Appellant’s argument merely articulates a distinction without a difference.

                                                 -8-
The detective’s testimony—like that of the expert in Bolden—supports the inference that

distributing drugs is linked to possessing firearms, given his statement that “a lot” of drug dealers

carry firearms. Considering that link, together with the fact that appellant was convicted of

possession of cocaine with intent to distribute, the evidence permits the inference that appellant

constructively possessed the firearm to protect his illegal activities.

       Appellant further argues that Bolden is distinguishable from the instant case because the

gun in Bolden was immediately proximate to the defendant, while the gun here “was not right

beside [appellant], it was right beside someone else.” Thus, unlike the instant case, the evidence

in Bolden supported the inference that the defendant knew of the presence and character of the

gun and sought to prevent its discovery by meeting the officer away from the car. However,

Bolden makes clear that proximity to a firearm is not dispositive. Instead, it is simply “a factor”

to consider when determining whether a defendant was in constructive possession. Bolden, 275

Va. at 148, 654 S.E.2d at 586. Here, regardless of appellant’s initial proximity to the pistol, his

conduct in walking toward Officer Spencer before Spencer could approach supports an inference

that he wanted to prevent discovery of the gun he knew was present in the vehicle. See id. at

148-49, 654 S.E.2d at 586.

       Lastly, appellant argues that the Commonwealth introduced no evidence that he owned

the iPhone which contained a photograph of the pistol and that his mere use of the locked phone

did not prove that he owned it. He further argues that even if his use of the phone demonstrated

ownership, it cannot be inferred that he took or had seen the photograph of the gun and thus had

knowledge of the gun. Here, appellant possessed and used a password-protected phone which

contained an image of a pistol bearing the same distinctive markings as the pistol recovered from

the vehicle. A rational fact finder could infer from this evidence of possession and use that the




                                                 -9-
phone was appellant’s, that he was familiar with the photograph of the gun, and that he thus had

knowledge of the nature and character of the firearm found in the vehicle.

       Viewing the evidence in the light most favorable to the Commonwealth, appellant was

driving a vehicle in which police located a gun. He was convicted of possession of cocaine with

intent to distribute, and a detective testified that “a lot” of drug dealers carry firearms. Appellant

left the vehicle he had been driving and moved toward a police officer. He also possessed and

used a password-protected phone which contained an image of the pistol recovered from the

vehicle. Consequently, a rational trier of fact could have found, beyond a reasonable doubt, that

appellant was aware of the presence and character of the firearm and that it was subject to his

dominion and control.

                                        III. CONCLUSION

       For the foregoing reasons, we affirm appellant’s convictions.

                                                                                            Affirmed.




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