Home / Fulltext Opinions / Virginia Court of Appeals / BRACEY v. COMMONWEALTH OF VIRGINIA




OCTOBER 28, 1997
Record No. 3214-96-1





E. Everett Bagnell, Judge
Present: Judges Benton, Bray and Senior Judge Hodges
Argued at Norfolk, Virginia

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.
, 4 Va. App. 438, 443, 358 S.E.2d 415, 418

So viewed, the evidence proved that on September 25, 1993, at
approximately 4:30 a.m., Officer Harris initiated a traffic 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

"[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 (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
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.


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.
, 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

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 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

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] 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.
, 19 Va. App. 58, 61, 448 S.E.2d 663, 664 (1994),
I dissent. I would reverse the convictions.




[1] Pursuant to Code ? 17-116.010 this
opinion is not designated for publication.

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