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Present: Judges Benton, Annunziata and Humphreys
Argued at Richmond, Virginia
Record No. 1077-01-2


MAY 7, 2002


Robert W. Duling, Judge

Cynthia E. Payne, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Robert H. Anderson, III, Senior Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Phillip Branch appeals his conviction, after a bench trial, for possession of a firearm by a convicted felon, in violation of Code ??18.2-308.2. Branch contends that the trial court erred in finding the evidence sufficient as a matter of law to sustain the conviction.[2]

On September 27, 2000, at approximately 2:00 a.m., Trooper Jeffrey Stump, of the Virginia State Police, was working stationary radar on Interstate 95 in the City of Richmond. He observed Branch travelling 71 miles per hour in a posted 55 miles-per-hour zone. Trooper Stump turned on his emergency lights and siren and followed Branch’s car northbound on Interstate 95. Branch slowed his car briefly, but after approximately 30 seconds he accelerated and reached a speed of more than 80 miles per hour.

Branch, followed by Stump, arrived at the James River Bridge, where “traffic was backed up” due to construction that limited travel to one southbound lane. Branch drove the car through the construction area and hit construction barrels that struck and damaged Stump’s police car. Branch then proceeded north in the shutdown lanes of Interstate 95, passing traffic that had stopped or slowed for the construction zone. Branch finally left the interstate and proceeded onto Seventh Street, where his car hit the railroad tracks at a high rate of speed. His car left the ground and hit a 12-foot stockade fence, which brought the car to a complete stop. Branch then got out of the car and ran, leaving behind a person in the passenger side of the car.

Stump approached the stopped car and removed the passenger. Stump then went to the driver’s side of the car and observed a .44 Magnum revolver under the driver’s foot pedal and partially under the floor mat. Branch was apprehended by another trooper a short time later.

At trial, Branch testified that he was driving the car, but claimed the car belonged to his girlfriend. Branch further testified that her car had been stolen around 10:30 p.m. that evening, approximately three and one-half hours before Stump attempted to pull Branch over. Branch stated that he and a friend had gone to look for the stolen car for his girlfriend, and had found it at approximately 1:00 a.m. that morning, on a dark road. Branch then drove the car onto Interstate 95. He conceded he did not have a driver’s license and that he was on probation at the time. Further, he admitted he was speeding when he was initially observed by Stump. He claimed he was afraid of driving without his license and that he wanted to return the car to his girlfriend quickly.

Branch testified he did not pull over when Stump turned on his lights and siren because he knew he was not supposed to be driving. He admitted running from the troopers on foot when the car finally came to a stop. However, he claimed he did not know the gun was in the car. He stated that he never saw the gun, and testified that it would have been impossible for him to drive with the gun in the location where it was found by Stump.

Branch’s girlfriend testified that her car had been stolen that evening and that Branch and a friend had gone to look for it. She denied owning a gun.

On appeal, Branch contends the evidence presented by the Commonwealth was insufficient to establish his constructive possession of the gun. We agree.

When reviewing the sufficiency of the evidence after a conviction, we consider that evidence in the light most favorable to the Commonwealth, and we affirm the conviction unless it is plainly wrong or without evidence to support it. The circuit court sitting without a jury in this case acted as the fact finder; hence, the court’s judgment is accorded the same weight as a jury verdict. As the fact finder, the court “need not believe the accused’s explanation and may infer that he is trying to conceal his guilt.”[3]

Nevertheless, where the evidence is entirely circumstantial, all necessary circumstances proved must be consistent with guilt and inconsistent with innocence and must exclude every reasonable hypothesis of innocence.[4]

To support a conviction for knowingly and intentionally possessing a firearm after having been convicted of a felony, there must be proof that the defendant possessed the firearm at issue.[5] “‘Possession may be actual or constructive.'”[6] The principles that govern constructive possession of illegal drugs also apply to constructive possession of a firearm.[7] Thus, to sustain 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 [Branch] was aware of both the presence and character of the [gun] and that it was subject to his dominion and control.”[8] “‘However, the Commonwealth is not required to prove that there is no possibility that someone else may have planted, discarded, abandoned, or placed the [firearm] where [it was] found near an accused.'”[9]

Further, mere proximity to the gun is not sufficient to establish dominion and control.[10] Likewise,

[o]wnership or occupancy of a car or of premises where [a firearm is] found is a circumstance that may be considered together with other evidence tending to prove that the owner or occupant exercised dominion and control over items in the car or on the premises in order to prove that the owner or occupant constructively possessed the [gun]; however, ownership or occupancy alone is insufficient to prove knowing possession of [a gun] located on the premises or in a car.”[11]

In order for ownership or occupancy of property or of a car to be sufficient to support the inference that the owner or occupant also possessed the gun at issue, the owner or occupant must be shown to have exercised dominion and control over the premises and to have known of the presence, nature, and character of the gun at the time of such ownership or occupancy.[12]

In the case at bar, the only evidence tending to establish Branch’s constructive possession of the gun is the fact that it was found on the floor of the driver’s side of the car he was driving. Indeed, the undisputed evidence established that Branch was not the owner of the car and that the car had been stolen by a person or persons unknown, only a few hours before the gun was discovered by Stump. Further, unlike many of the cases cited by the Commonwealth, Branch was not the sole occupant of the car when he was ultimately stopped by police, nor did the evidence tend to exclude the reasonable possibility that someone other than Branch placed the gun in the car without Branch’s knowledge.[13] Furthermore, none of the cases relied upon by the Commonwealth involved a collision similar to the incident at issue. Finally, as the photograph in evidence demonstrates, the gun was found under the pedals of the car and partially under a floor mat, which itself was askew from its normal position, – a combination of conditions which would clearly have made the car more difficult to operate.

Accordingly, Branch contends that the evidence is consistent with his claim that he had no knowledge of the gun, as it was concealed somewhere out of his view by someone else and was forced under the gas and brake pedals as a result of the accident. Branch further argues that he could not have driven the car with the gun under the pedals as it was found by police. We agree with Branch’s contention that the circumstantial evidence in this case, while clearly suspicious, simply does not exclude every reasonable hypothesis of Branch’s innocence, supported by evidence in the record. Moreover, the Commonwealth’s insistence that Branch’s flight from police is evidence of his guilt lends little credence to its position. Branch contended that his reason for running was his guilty knowledge that he was driving without a driver’s license, he was on probation, and he was speeding when he was observed by Trooper Stump. Thus, while the evidence viewed in the light most favorable to the Commonwealth “creates a strong suspicion, indeed a probability,” that Branch constructively possessed the gun, the evidence does not establish beyond a reasonable doubt that Branch was aware of the “presence, nature, and character” of the gun at the time of his occupancy of the car. [14] Furthermore, “we have said, suspicious circumstances and probability of guilt, no matter how strong, are insufficient to sustain a criminal conviction.”[15] Because the circumstances of this case do not exclude the reasonable hypothesis that someone else placed the gun in the car, unbeknownst to Branch, we hold that the trial court was plainly wrong in finding the evidence sufficient as a matter of law to support Branch’s conviction on

this charge. Accordingly, the decision of the trial court must be reversed and the charge dismissed.

Reversed and dismissed.


[1]* Pursuant to Code ??17.1-413, this opinion is not designated for publication.

[2] Branch was also convicted of attempting to elude police in violation of Code ??46.2-817(B). That conviction is not at issue on appeal.

[3] Shackleford v. Commonwealth, 262 Va. 196, 209, 547 S.E.2d 899, 906-07 (2001) (quoting Black v. Commonwealth, 222 Va. 838, 842, 284 S.E.2d 608, 610 (1981)).

[4] Sutphin v. Commonwealth, 1 Va.?App. 241, 244, 337 S.E.2d 897, 898 (1985) (citations omitted).

[5] Blake v. Commonwealth, 15 Va.?App. 706, 708-09, 427 S.E.2d 219, 220-21 (1993).

[6] Brown v. Commonwealth, 15 Va.?App. 1, 7-8, 421 S.E.2d 877, 882 (1992) (quoting Castaneda v. Commonwealth, 7 Va.?App. 574, 583-84, 376 S.E.2d 82, 86-87 (1989)).

[7] Grier v. Commonwealth, 35 Va.?App. 560, 570, 546 S.E.2d 743, 747-48 (2001).

[8] Powers v. Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).

[9] Grier, 35 Va.?App. at 571, 546 S.E.2d at 748 (quoting Pemberton v. Commonwealth, 17 Va.?App. 651, 655, 440 S.E.2d 420, 422 (1994)).

[10] Drew v. Commonwealth, 230 Va. 471, 473, 338 S.E.2d 844, 845 (1986).

[11] Burchette v. Commonwealth, 15 Va.?App. 432, 435, 425 S.E.2d 81, 83 (1992).

[12] Id. at 435, 425 S.E.2d at 83-84.

[13] See Hamilton v. Commonwealth, 16 Va.?App. 751, 754-55, 433 S.E.2d 27, 28-29 (1993); Langston v. Commonwealth, 28 Va.?App. 276, 285-86, 504 S.E.2d 380, 384-85 (1998); Logan v. Commonwealth, 19 Va.?App. 437, 444-45, 452 S.E.2d 364, 368-69 (1994); and Watkins v. Commonwealth, 26 Va.?App. 335, 349, 494 S.E.2d 859, 866 (1998). See also Adkins v. Commonwealth, 217 Va. 437, 438-39, 229 S.E.2d 869, 870 (1976) (finding constructive possession of marijuana found in the floor of the driver’s side of the car where defendant, who was sitting in the passenger side of the car when police approached, was the only occupant in the front seat and police had observed furtive movements by the occupant of the front seat upon approaching the car); and Grier, 35 Va.?App. at 570-71, 546 S.E.2d at 748 (finding constructive possession of drugs and a firearm where the defendant, the sole passenger in the car, was observed exchanging capsules and unidentified small objects from the window of the car for cash just minutes prior to being stopped by police).

[14] Rogers v. Commonwealth , 242 Va. 307, 320, 410 S.E.2d 621, 629 (1991).

[15] Id.