COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Felton and Senior Judge Hodges 

Argued at Chesapeake, Virginia 

EDWARD T. PITCHFORD 

 MEMORANDUM OPINION* BY 

v. Record No. 1582-01-1 JUDGE LARRY G. ELDER 

 SEPTEMBER 24, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK 

D. Arthur Kelsey, Judge 

 Joseph R. Winston, Special Appellate Counsel 

(Public Defender Commission, on briefs), for 

appellant. 

 Linwood T. Wells, Jr., Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Edward T. Pitchford (appellant) appeals from his bench 

trial convictions for possession of cocaine with intent to 

distribute, possession of a firearm while in possession of 

cocaine with intent to distribute, and possession of a firearm 

after having been convicted of a felony.1 On appeal, he contends 

the evidence was insufficient to prove his constructive 

possession of the firearm and cocaine found in the residence. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

1

 Appellant pleaded guilty to possession of hashish and 

misdemeanor possession of marijuana. He does not challenge 

those convictions on appeal. 
We hold that appellant preserved this argument for appeal, but 

we conclude the evidence was sufficient to prove appellant 

resided in the house in which the firearm and cocaine were 

found. Thus, we affirm the challenged convictions. 

I. 

PRESERVATION OF ISSUES FOR APPEAL 

The Commonwealth contends appellant failed to preserve for 

appeal his claim that the evidence was insufficient to prove he 

constructively possessed the cocaine found inside the residence 

at 103 Hawk Lane. We disagree and hold that appellant's 

post-trial motion, made orally at the sentencing hearing, was 

sufficient under Rule 5A:18 to preserve this issue for appeal. 

In argument on appellant's post-trial motion, appellant 

emphasized that "the only thing he had on him was a very small 

amount of drugs," that his wife was found guilty of possessing 

cocaine with intent to distribute based on her own admission, 

and that no evidence proved he had access to the premises in 

which the gun and larger quantity of drugs were found. The 

trial court considered the motion in the context of both the 

firearms convictions and the cocaine possession conviction, 

noting "the law is settled that joint possession is sufficient 

for the convictions of both [appellant and his wife,] . . . 

[w]hich is what I held [on the charge of possession of cocaine 

with intent to distribute], and likewise with the weapon." When 

appellant again focused the court's attention on the lack of 

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evidence that appellant had access to the residence, he did so 

in the context of the firearms charges, but the court clearly 

reconsidered in the context of all the charges, noting that it 

had "found [appellant] guilty . . . of cocaine possession and 

. . . having a weapon while being in . . . constructive 

possession of cocaine." 

 The primary purpose of Rule 5A:18 is to give the trial 

court the opportunity to correct its errors in order to avoid 

unnecessary appeals and reversals. See, e.g., Robinson v. 

Commonwealth, 13 Va. App. 574, 576-77, 413 S.E.2d 885, 886-87 

(1992). Because the record establishes the trial court had that 

opportunity here in regard to the sufficiency of the evidence to 

prove constructive possession of the cocaine and firearm found 

inside the residence, we hold Rule 5A:18 has been satisfied, and 

we reach the merits of this issue. 

II. 

SUFFICIENCY OF THE EVIDENCE 

Under familiar principles of appellate review, we examine 

the evidence in the light most favorable to the Commonwealth, 

granting to the evidence all reasonable inferences fairly 

deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438, 

443, 358 S.E.2d 415, 418 (1987). Circumstantial evidence is 

sufficient to support a conviction provided it excludes every 

reasonable hypothesis of innocence flowing from the evidence. 

Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 S.E.2d 27, 

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29 (1993). The only reasonable hypothesis flowing from the 

evidence in this case is that appellant resided at 103 Hawk Lane 

and was aware of the presence of the firearm under the mattress, 

as well as the large quantity of cocaine and distribution 

paraphernalia in plain view nearby, and that both the gun and 

the drugs were subject to his dominion and control. 

A. 

APPELLANT'S RESIDENCE 

Despite appellant's argument to the contrary, his counsel 

stipulated, and the evidence proved, that he resided at 103 Hawk 

Lane. While the officers were at 103 Hawk Lane to execute the 

warrant, appellant departed his nearby place of employment and 

arrived at the residence to sell a car to three men he had 

arranged to meet there. When Officer Sandra Gilluly was asked 

at trial to identify the location at which appellant stopped his 

vehicle, she said she would have to refer to her notes. 

Appellant's counsel said, "We would stipulate that it was the 

defendant's -- 103 --," and Officer Gilluly then said, "103 

Hawk[] Lane." The Commonwealth's attorney responded, "I'll move 

along then." 

Evidence in addition to this stipulation proved that 103 

Hawk Lane was appellant's residence. Investigator Joseph 

Coleman identified the residence as appellant's. A Virginia 

Power bill found in appellant's car bore his name and the 103 

Hawk Lane address, as did a W-2 Form for the immediately 

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preceding tax year of 1998, which was found in the living room 

of the residence during the February 5, 1999 search. Finally, 

when Officer C.S. Patterson asked appellant whether they would 

find any firearms in the residence, appellant responded that 

"only one" firearm was in the house, that it was under the 

mattress in the back bedroom, and that his wife used it "for her 

protection when he was gone." Therefore, in addition to the 

circumstantial evidence that appellant resided at 103 Hawk Lane, 

appellant's express statement that he was aware of the number of 

firearms in the house and that his wife kept a gun beneath the 

mattress because he sometimes "was gone" from the residence 

constituted an admission that he resided there with his wife. 

The record also belies appellant's argument that the trial 

court improperly shifted the burden of proof on this issue to 

him. Although the court asked during appellant's post-trial 

argument, "Was there any proffer made at trial that [103 Hawk 

Lane] was not his residence?", the court's subsequent statements 

made clear that it required the Commonwealth to prove 

appellant's "guilt beyond a reasonable doubt." Noting 

appellant's arrival at the residence while the officers were 

there to execute the warrant, appellant's admitted awareness of 

the gun beneath the mattress,2 and "the information on the bills 

 2

 The trial court erroneously characterized the evidence as 

proving "[appellant] [had] bought [the gun] for his wife." In 

fact, the evidence established only that appellant said his wife 

kept the weapon beneath the mattress and that it was for her 

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. . . [and] other invoice-like information suggest[ing] it was 

his residence," the court said that it "[gave] every reasonable 

hypothesis of innocence to [appellant]" and that "[it] just 

[could not] fathom that [appellant's counsel] [did not] think 

the circumstantial evidence was sufficient for a finding of 

guilt beyond a reasonable doubt." 

B. 

CONSTRUCTIVE POSSESSION 

The evidence also proved appellant was aware of the 

presence and character of the cocaine and firearm in the house 

and that both were subject to his dominion and control. 

The possession necessary to support convictions for the 

possession of cocaine pursuant to Code § 18.2-248 and the 

simultaneous possession of cocaine and a firearm pursuant to 

 

protection when he was gone; it did not establish who purchased 

the weapon. However, appellant failed to bring this error to 

the trial court's attention, see Rule 5A:18, and in any event, 

the trial court's erroneous belief was harmless error. 

As appellant conceded on brief, his supposed prior actual 

possession of the firearm on an unknown date was insufficient to 

prove either that he possessed the firearm after having been 

convicted of a felony or that he possessed the firearm while he 

possessed cocaine. Further, as discussed infra in the text, the 

evidence was sufficient to prove appellant constructively 

possessed the firearm on the date he told police it was beneath 

the mattress. Based on the presumption that the trial court 

knows and has properly applied the law to the facts, in the 

absence of evidence to the contrary, see Yarborough v. 

Commonwealth, 217 Va. 971, 978, 234 S.E.2d 286, 291 (1977), we 

conclude "'beyond a reasonable doubt that the error complained 

of did not contribute to the verdict obtained,'" Williams v. 

Commonwealth, 32 Va. App. 395, 399, 528 S.E.2d 166, 168 (2000) 

(en banc) (quoting Chapman v. California, 386 U.S. 18, 24, 87 

S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967)). 

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Code § 18.2-308.4 may be actual or constructive. See, e.g., 

Logan v. Commonwealth, 19 Va. App. 437, 444, 452 S.E.2d 364, 368 

(en banc). Establishing constructive possession requires proof 

"that the defendant 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). A person's ownership or occupancy of premises 

on which the subject item is found, proximity to the item, and 

statements or conduct concerning the location of the item are 

probative factors to be considered in determining whether the 

totality of the circumstances supports a finding of possession. 

Archer v. Commonwealth, 26 Va. App. 1, 12, 492 S.E.2d 826, 

831-32 (1997). Possession "need not always be exclusive. The 

defendant may share it with one or more." Josephs v. 

Commonwealth, 10 Va. App. 87, 89, 390 S.E.2d 491, 497 (1990) (en

banc). 

Appellant admitted that a firearm was located beneath the 

mattress in the back bedroom. When the police searched that 

bedroom, they found that firearm beneath the mattress and box 

springs of a double or queen-sized bed, precisely where 

appellant said it would be. The presence of the firearm "in 

[appellant's] house," coupled with his statement to "the police 

[that] they could find it [beneath the mattress in the back 

bedroom], . . . was sufficient . . . to establish that 

[appellant] had knowledge of the presence of the [firearm], and 

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that [it] was subject to his dominion and control." Davis v. 

Commonwealth, 12 Va. App. 728, 733, 406 S.E.2d 922, 924-25 

(1991) (emphasis added) (upholding conviction for possession of 

marijuana where accused told police they would find it in his 

basement, despite presence in house of accused's wife and a 

friend who claimed at trial that the marijuana belonged to him 

rather than to the accused). Although appellant, a convicted 

felon, said the weapon belonged to his wife, the trial court was 

entitled to reject this statement. The only reasonable 

hypothesis flowing from the remaining evidence is that appellant 

exercised at least joint possession of the weapon. 

The evidence also proved appellant was aware of the 

presence and character of the cocaine in the house and that it 

was subject to his dominion and control. The police found a 

large quantity of cocaine, marijuana, scales bearing white 

residue, and one-inch plastic baggies in plain view in the same 

bedroom in which appellant told them they would find the 

firearm. The fact that police found cocaine on appellant's 

person and cocaine and marijuana in his vehicle established his 

familiarity with those substances and indicated his awareness of 

the nature and character of the cocaine and marijuana in plain 

view in the bedroom, as well. 

For these reasons, we hold the evidence was sufficient to 

prove that appellant constructively possessed both the firearm 

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and the cocaine in the bedroom. Thus, we affirm the challenged 

convictions. 

Affirmed.

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