Virginia Lawyers Weekly VA Lawyers Weekly
There was sufficient evidence to determine that appellant constructively possessed a shotgun found in his truck. His conviction of possession of a firearm by a convicted felon is affirmed.
Firearm possession
“Appellant’s assignment of error challenges the sufficiency of the evidence proving that he knowingly possessed the firearm found in the truck. He does not challenge his status as a felon or that the item in the truck was a firearm.
“Appellant contends that the evidence merely showed that he was in proximity to the weapon, not that he constructively possessed it, because the Commonwealth did not present any ‘acts, statements, [or] conduct … that would have indicated he was aware of the firearm’ and the Commonwealth failed to prove that he exercised dominion and control over the weapon.
“Appellant notes that he was unconscious when the police arrived, and he remained unresponsive even after he was administered Narcan and transported to the hospital. He argues that no personal items were recovered from the truck linking him to it, and no one saw him inside the vehicle.
“Additionally, it was dark outside, which required Officer Closs to use his flashlight to search the truck’s interior.
“Appellant concludes the evidence was insufficient to prove he was ‘ever in a position to even view the firearm much less be aware of its presence and character.’
“Appellant argues that, even if the evidence proved he occupied the truck, it failed to establish that he exercised dominion and control over the shotgun.”
Sufficient evidence
“Appellant was found unconscious and barefoot next to the truck his grandfather reported stolen on the night of the offense. The report indicated that a shotgun was in the truck.
“When Officer Closs located the stolen truck that same night, a loaded shotgun was leaning against the passenger seat, with additional ammunition on the seat. The factfinder may consider the open visibility of the firearm in the location where it was found. …
“The driver’s side door was still open, evidence that appellant was recently sitting in the driver’s seat. Contrary to appellant’s assertion that no items were seized from the truck that would link him to it, flip-flops matching appellant’s foot size were found on the driver’s side floorboard.
“Knowledge of contraband, while an element of possession, is a factual question.”
The trial court “sitting as the factfinder, found sufficient evidence that appellant was a recent occupant of the truck, was aware of the weapon next to him in the cab, and constructively possessed it.
“We do not find the court’s judgment plainly wrong or without evidence to support it.”
Affirmed.
Pack v. Commonwealth, Record No. 0555-21-3, May 10, 2022. CAV (O’Brien) from the Circuit Court of the City of Lynchburg (Watson). Kelsey Bulger for appellant. Jason D. Reed for appellee. VLW 022-7-133, 5 pp. Unpublished opinion.
