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COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Senior Judge Overton
Argued at Richmond, Virginia
Record No. 2144-02-2
ANTOINE CLAYTON SMITHERS
COMMONWEALTH OF VIRGINIA
JUDGE LARRY G. ELDER
OCTOBER 14, 2003
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Richard D. Taylor, Jr., Judge
John B. Mann (Levit, Mann, Halligan & Warren, on briefs),
Robert H. Anderson, III, Senior Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on brief), for appellee.
Antoine Clayton Smithers (appellant) appeals from his jury trial
possession of a firearm while in possession of cocaine or
heroin, in violation of Code
On appeal, he contends the evidence was insufficient to prove he possessed the
firearm found on the roof of the house he shared with his sister
and others. We hold the evidence
was sufficient to support the conviction, and we affirm.
Under familiar principles of appellate review, we examine the
evidence in the light most
favorable to the Commonwealth, granting to it all reasonable
inferences fairly deducible
therefrom. Higginbotham v. Commonwealth, 216 Va. 349, 352, 218
S.E.2d 534, 537 (1975).
"Circumstantial evidence is as competent and is entitled to
as much weight as direct evidence,
provided it is sufficiently convincing to exclude every
reasonable hypothesis except that of
guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d
864, 876 (1983). "[T]he
Commonwealth need only exclude reasonable hypotheses of
innocence that flow from the
evidence, not those that spring from the imagination of the
defendant." Hamilton v.
Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 29 (1993).
Here, appellant was convicted for possessing cocaine and heroin
that Officer Rhodenizer
found on the roof of the house in which appellant resided.
Appellant does not contest those
convictions on appeal. Thus, we consider only whether the
evidence was sufficient to prove he
simultaneously possessed the firearm also found on the roof of
The possession necessary to support a conviction for the
simultaneous possession of a
firearm and cocaine or heroin pursuant to Code ? 18.2-308.4 may
be actual or constructive. See,
e.g., Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d
364, 368 (1994) (en banc).
Establishing constructive possession requires proof "that
the defendant was aware of both the
presence and character of the [item] and that it was subject to
his dominion and control." Powers
v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984). A
person’s ownership or
occupancy of premises on which the subject item is found,
proximity to the item, and statements
or conduct concerning the location of the item are probative
factors to be considered in
determining whether the totality of the circumstances supports a
finding of possession. Archer v.
Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 831-32 (1997).
Possession "need not
always be exclusive. The defendant may share it with one or
more." Josephs v. Commonwealth,
10 Va. App. 87, 99, 390 S.E.2d 491, 497 (1990) (en banc).
Here, Officer Rhodenizer appeared to give conflicting testimony
bedroom was appellant’s and which bedroom was his sister’s.
Nevertheless, the only reasonable
hypothesis flowing from the evidence in the record, viewed in
the light most favorable to the
Commonwealth, is that, whether or not the bedroom was
appellant’s, he actually or
constructively possessed the firearm and drugs found outside the
window of that bedroom.
When Officer Rhodenizer entered the house at about 1:00 a.m. to
serve appellant’s sister, Delma
Clarke, with a felony arrest warrant, Clarke was on the first
floor of the residence. When Clarke
went rapidly up the stairs to a second floor bedroom, Officer
Rhodenizer followed five to ten
seconds behind her at a similar pace. Clarke entered the bedroom
and closed the door. When
Rhodenizer had almost reached the top of the stairs, he heard
Clarke say from behind the closed
bedroom door, "The police is downstairs. I think I got a
warrant. The police are downstairs."
"Immediately after hearing this," Rhodenizer reached
the top of the stairs, and behind the same
door, he "heard a noise and a bang, . . . maybe a door
opening or closing."
Officer Rhodenizer then opened the door to the bedroom and saw
appellant standing with
his torso and arms out the open bedroom window. Clarke was
standing on the opposite side of
the room from appellant and the open window, and the evidence
supported the inference that she
had been in the room only a matter of seconds. When appellant
saw Officer Rhodenizer, "[h]is
eyes got real wide" and "his jaw dropped." He
pulled himself back into the room, reached up,
"rapidly" closed the window, and attempted to flee. No
evidence in the record established that
Clarke engaged in suspicious or evasive behavior after
Rhodenizer entered the bedroom.
Although Officer Rhodenizer did not see anything in appellant’s
hands and did not see
appellant make any sort of throwing motion as he leaned out the
immediately found drugs–both heroin and cocaine–and a firearm
outside the bedroom window.
It had been raining throughout the night, but the rain had
stopped just a few minutes before
Officer Rhodenizer arrived at appellant’s residence at about
1:00 a.m. The firearm, which was
not located under an overhang or anything else that would have
protected it from the rain, was
damp on the bottom but dry on top, permitting the inference that
it had been on the roof for only
a brief period of time. Similarly, the plastic bags containing
the drugs were wet on the outside,
but their contents were not saturated. Although the drugs were
several feet from the window and
appeared to have been thrown onto the roof, the firearm was
directly beneath the open window,
easily within appellant’s reach. When Officer Rhodenizer climbed
back into the room after
finding the drugs and firearm, appellant became agitated and
again attempted to flee. The only
reasonable hypothesis flowing from this evidence, viewed in the
light most favorable to the
Commonwealth, is that appellant exercised first actual and then
constructive possession of both
the drugs and the firearm and that he was attempting, based on
Clarke’s warning, to dispose of
the items so that they would not be found by the police.
Appellant argues that Clarke could have thrown either or both of
the items out the
window and, thus, that the evidence is insufficient to prove
appellant possessed them actually or
constructively. However, the evidence indicates that Officer
Rhodenizer quickly followed
Clarke up the stairs and into the bedroom, eliminating the
possibility that Clarke, who was
standing on the opposite side of the room from the window when
Rhodenizer entered, could
independently have discarded the firearm through the open window
before appellant discarded
the drugs. That Clarke may also have had actual or constructive
possession of the drugs and
firearm before appellant attempted to dispose of them through
the open window does not
diminish appellant’s guilt for the charged offense.
For these reasons, we hold the evidence was sufficient to
support appellant’s conviction
for violating Code ? 18.2-308.4, and we affirm.
Code ? 17.1-413, this opinion is not designated for publication.
convicted in the same proceeding for possessing heroin and possessing
cocaine. He does not challenge those convictions on appeal.