Testimony from an eyewitness and a police officer was sufficient to convict appellant, a convicted felon, of possessing a firearm, and possessing a gun and a controlled substance simultaneously.
Going down the road
Drew was driving on a back road. Ahead, appellant Carpenter was driving an ATV. Carpenter moved over to let Drew pass. Drew did so, He looked at his rear-view mirror to see Carpenter being thrown from the ATV as it was rolling over.
Drew stopped, saw that Carpenter was breathing and went back to his car to call 911. When he returned to the scene, there was a firearm in the road about three to five feet from Carpenter. Drew picked the gun up and put it in his car until he could give it to a police officer.
“At trial, Drew stated that visibility was ‘good and clear’ at the time of the crash and that if there had been anything in the road immediately before the crash, he ‘would have seen it.’ He also did not see any other people in the area immediately before the crash.”
Nottoway County Sheriff’s Deputy Austin and Virginia State Police Trooper Jimenez responded. Jimenez was given possession of the gun. Both officers identified it in court.
Carpenter denied knowledge of the gun. Jimenez noted that the ATV had no cargo compartments or anything that could hold a gun. In a search incident to Carpenter’s arrest, Jimenez found a substance in one of his pockets that later proved to be a controlled substance.
“After the Commonwealth rested its case-in-chief, Carpenter moved to strike the evidence, arguing that the Commonwealth’s evidence was insufficient to prove that he possessed the firearm Drew found in the road because mere proximity is not sufficient to demonstrate possession. The trial court denied the motion. …
“At the close of all the evidence, Carpenter renewed his motion to strike. The trial court denied the motion and convicted Carpenter on both counts.
“The court drew ‘the logical inference’ that Carpenter possessed the firearm on his person immediately before the crash based on Drew’s testimony that he did not see the firearm in the road before the crash and he would have seen it if it had been there, the fact that the firearm was three to five feet from where Carpenter landed after the crash, and Trooper Jimenez’s testimony that the ATV did not contain any compartments that could hold a firearm.”
Carpenter argues there was insufficient evidence that he possessed the firearm. “We disagree. …
“[T]he evidence is sufficient to prove that Carpenter actually possessed the firearm. Right after the crash, Drew saw a firearm in the road approximately three to five feet away from Carpenter. Drew did not see the firearm when he drove past that spot immediately before the crash, and he testified that he would have seen it if it had been there. Nor did he see any other people in the area.
“Drew’s testimony excludes the hypothesis that the firearm was laying in the road before Drew passed Carpenter or that someone else put it there.
“Further, Trooper Jimenez testified that the ATV contained no compartments that could hold a firearm, and the firearm was only a few feet from where Carpenter fell.
“We conclude that the evidence supports an inference that Carpenter had the firearm on his person and that the firearm fell and landed in the road when Carpenter fell from the ATV, and the evidence excludes all reasonable hypotheses to the contrary.
“Accordingly, the circumstantial evidence, viewed in the light most favorable to the Commonwealth, is sufficient to prove that Carpenter possessed the firearm on his person immediately before he crashed his ATV.”
Carpenter v. Commonwealth, Record No. 0840-21-2, July 26, 2022. CAV (AtLee) From the Circuit Court of Nottoway County (Cella) Marlene A. Harris for appellant. Justin B. Hill, Jason S. Miyares for appellee. VLW 022-7-284, 6 pp. Unpublished opinion.