Kenneth A. Gore v. Commonwealth of Virginia ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
KENNETH A. GORE
MEMORANDUM OPINION * BY
v. Record No. 1776-97-1 JUDGE NELSON T. OVERTON
JUNE 23, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Dennis F. McMurran, Judge
Frederick M. Quayle (Elizabeth B. Fitzwater,
on brief), for appellant.
Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Kenneth A. Gore (defendant) was convicted in a bench trial
of possession of a firearm after having been convicted of a
felony, in violation of Code § 18.2-308.2. On appeal, he
contends the evidence was insufficient to show his constructive
possession of the firearm. Because we find the evidence was
sufficient, we affirm.
The parties are fully conversant with the record in the case
and because this memorandum opinion carries no precedential
value, no recitation of the facts is necessary.
"Proof that appellant possessed the gun . . . either
actually or constructively, was sufficient to support his
conviction for possession of a firearm by a convicted felon."
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Archer v. Commonwealth, 26 Va. App. 1, 11-12, 492 S.E.2d 826, 831
(1997) (citing Blake v. Commonwealth, 15 Va. App. 706, 708-09,
427 S.E.2d 219, 220-21 (1993)). For a conviction based upon
constructive possession to stand, "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." Powers v.
Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984).
Defendant analogizes his case with that of Hancock v.
Commonwealth, 21 Va. App. 466, 465 S.E.2d 138 (1995). In
Hancock, the defendant sat in the back seat of a car and the gun
was found underneath the seat directly in front of him. The
evidence showed that if Hancock had not looked down under that
seat, he would not have necessarily known about the gun. Because
the Commonwealth did not exclude that possibility, his conviction
was reversed.
In the instant case, defendant was driving the car when it
was pulled over. The car was registered to his wife, only they
possessed keys and only he and his wife ever drove the car. The
handgun was found in the glove compartment. Defendant reached
into the glove compartment to retrieve the registration while the
gun was in that glove compartment. He admits he saw the gun and
yet said nothing to the police officer. At that moment he had
both knowledge of the gun and exercised dominion and control over
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it, which is what the statute requires. See Code § 18.2-308.2.
Because the Commonwealth proved defendant constructively
possessed the firearm, his conviction is affirmed.
Affirmed.
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